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Authority of the Department of Justice to Disclose Statutorily Protected Materials to Its Inspector General in Light of Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016

Section 540 of the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2016, effectively prohibits the Department of Justice, for the remainder of fiscal year 2016, from denying the Department’s Office of the Inspector General (“OIG”) timely access to materials requested by OIG, or preventing or impeding OIG’s access to such materials, pursuant to the Federal Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968); Rule 6(e) of the Federal Rules of Criminal Procedure; or section 626 of the Fair Credit Reporting Act. As a result, the Department may (and must) disregard the limitations in those statutes in making disclosures to OIG for the remainder of the fiscal year.

Interpretation of Article 17 Bis of the US-EU Air Transport Agreement

Article 17 bis of the Air Transport Agreement Between the United States of America and the European
Community and Its Member States does not provide an independent basis upon which the United
States may deny a permit to an air carrier of a Party to the Agreement if that carrier is otherwise
qualified to receive such a permit.

Authority to Permit Part-Time Employees to Work Regularly Scheduled Workweeks of 33 to 39 Hours

The statutes governing federal employment permit federal agencies to schedule part-time employees to work regularly scheduled workweeks of 33 to 39 hours.

The Federal Employees Part-Time Career Employment Act of 1978 does not limit agencies’ preexisting authority to schedule part-time employees to work any number of hours per week less than 40.

The Department of Justice Inspector General’s Access to Information Protected by the Federal Wiretap Act, Rule 6(e) of the Federal Rules of Criminal Procedure, and Section 626 of the Fair Credit Reporting Act

Department of Justice officials may disclose information protected by the Federal Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968), Rule 6(e) of the Federal Rules of Criminal Procedure, and section 626 of the Fair Credit Reporting Act to the Department’s Office of Inspector General (“OIG”) in connection with many, but not all, of OIG’s investigations and reviews.

Section 6(a)(1) of the Inspector General Act of 1978 does not supersede the limitations on disclosure contained in Title III, Rule 6(e), and section 626.

Section 218 of the Consolidated and Further Continuing Appropriations Act, 2015, also does not supersede the limitations on disclosure contained in Title III, Rule 6(e), and section 626.

Authority of the Chairman of the Defense Nuclear Facilities Safety Board to Disclose Performance Appraisals of Senior Executive Service Employees

In the circumstances presented here, the organic statute of the Defense Nuclear Facilities Safety Board requires the Chairman to grant a requesting Board member access to written performance appraisals of Senior Executive Service employees.

In these circumstances, the Privacy Act does not bar the disclosure of those appraisals to the requesting Board member.

The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others

The Department of Homeland Security’s proposed policy to prioritize the removal of certain aliens unlawfully present in the United States would be a permissible exercise of DHS’s discretion to enforce the immigration laws.

The Department of Homeland Security’s proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS’s discretion to enforce the immigration laws. 

The Department of Homeland Security’s proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS’s enforcement discretion.

The Authority of the Equal Employment Opportunity Commission to Order a Federal Agency to Pay a Monetary Award to Remedy a Breach of a Settlement Agreement

Based on principles of sovereign immunity, the Equal Employment Opportunity Commission lacks authority to order the Social Security Administration to pay a monetary award as a remedy for breach of a settlement agreement entered to resolve a dispute under Title VII of the Civil Rights Act of 1964.

Immunity of the Assistant to the President and Director of the Office of Political Strategy and Outreach From Congressional Subpoena

The Assistant to the President and Director of the Office of Political Strategy and Outreach (“OPSO”) is immune from the House Committee on Oversight and Government Reform’s subpoena to compel him to testify about matters concerning his service to the President in the OPSO.

Competitive Bidding Requirements Under the Federal-Aid Highway Program

The competitive bidding requirement of 23 U.S.C. § 112 imposes, in addition to procedural rules dictating the process by which bids are awarded, a substantive limitation on state or local bidding requirements that are unrelated to the bidder’s performance of the necessary work.

Section 112’s competitive bidding requirement does not preclude any and all state or local bidding or contractual restrictions that have the effect of reducing the pool of potential bidders for reasons unrelated to the performance of the necessary work. Rather, section 112 affords the Federal Highway Administration discretion to assess whether a particular state or local requirement unduly limits competition.

Generally, state or local government requirements that eliminate or disadvantage a class of potential responsible bidders to advance objectives unrelated to the efficient use of federal funds or the integrity of the bidding process are likely to unduly impede competition in contravention of the substantive component of section 112’s competitive bidding requirement.

Whether the Millennium Challenge Corporation Should Be Considered an “Agency” for Purposes of the Open Meeting Requirements of the Sunshine Act

The Millennium Challenge Corporation is not an “agency” for purposes of the open meeting requirements of the Sunshine Act.

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