MEMORANDA AND OPINIONS
| Overview of Document
|
APPLICATION OF CONSUMER CREDIT REPORTING
REFORM ACT OF 1996 TO PRESIDENTIAL NOMINATION AND APPOINTMENT PROCESS fcra_dk
| Section
2403(b)(3) of the Consumer Credit Reporting Reform Act of 1996, which requires
persons "using a consumer report for employment purposes" to notify the consumer
prior to taking any "adverse action" based on the report, does not apply to the
process used by the President in considering individuals for nomination and appointment.
December 11, 1997 |
REAPPOINTMENT
OF A RETIRED JUDGE TO THE COURT OF FEDERAL CLAIMS wilson
|
The President may nominate and, subject to the advice and consent of the Senate,
appoint to the U.S. Court of Federal Claims an individual who has previously retired
from that Court and who is receiving a retirement annuity as a senior judge. Upon
assumption of active judicial service, the judge must forfeit the retirement annuity
for the duration of the service. December 3,
1997 |
APPLICABILITY
OF 18 U.S.C. § 209 TO ACCEPTANCE BY FBI EMPLOYEES OF BENEFITS UNDER THE "MAKE
A DREAM COME TRUE" PROGRAM 209fbi | The criminal
prohibition on supplementation of salary, 18 U.S.C. § 209, does not prohibit Federal
Bureau of Investigation employees from receiving benefits under the Society of
Former Special Agents of the FBI's "Make a Dream Come True" Program.
October 28, 1997 |
FUNDS
AVAILABLE FOR PAYMENT OF NATURAL RESOURCE DAMAGES UNDER THE OIL POLLUTION ACT
OF 1990 opaop | The President,
acting through the Department of Transportation, is authorized to use the Oil
Spill Liability Trust Fund to pay the claims of Natural Resource Trustees for
uncompensated natural resource damages in accordance with section 1013 of the
Oil Pollution Act of 1990, without the need for further enactment of appropriations.
September 25, 1997 |
AUTHORITY
TO INVESTIGATE COMPLAINTS BY EMPLOYESS OF THE FEDERAL AVIATION ADMINISTRATION
ALLEGING REPRISAL FOR WHISTLEBLOWING whistop
| The
Office of Special Counsel lacks authority to investigate complaints brought by
Federal Aviation Administration employees alleging reprisals against them in response
to whistleblowing activity. September 23, 1997 |
APPLICATION OF EMOLUMENTS CLAUSE TO REPRESENTATIVE MEMBERS OF ADVISORY COMMITTEES
emols.ac.html | The Emoluments
Clause of the Constitution does not apply to “representative” members
of advisory committees, that is, members who are chosen to present the views of
private organizations and interests. September 2, 1997 |
DISCLOSURE OF GRAND JURY MATERIAL TO THE INTELLIGENCE
COMMUNITY gjicfinop1 | Grand
Jury material subject to the requirements of Rule 6(e) of the Federal Rules of
Criminal Procedure may be disclosed to agencies in the Intelligence Community
insofar as necessary to assist government attorneys in performing their duties
to enforce federal criminal law, but may not be used by the recipient agencies
for other purposes. In circumstances where there is a compelling necessity
for grand jury material to be made available to the President in furtherance of
his constitutional responsibilities over foreign affairs and national defense
and where the President has authorized the provision of such material to the Intelligence
Community, we believe that a court should and would authorize such disclosure
outside the provisions of Rule 6(ee), on the basis of Article II of the Constitution
and separation of powers principles. Indeed, in such compelling circumstances,
a constitutionally necessitated disclosure could properly be made b attorneys
for the Government even without prior court approval. Section
104(a) of the National Security Act, as implemented by Executive Order N. 12333,
does not provide sound authority for Justice Department disclosure of grand jury
material related to the national security to the Director of Central Intelligence
outside the provisions of Rule 6(e). August
14, 1997 |
USE OF
GENERAL AGENCY APPROPRIATIONS TO PURCHASE EMPLOYEE BUSINESS CARDS gsabc
| Nothing
in the Omnibus Consolidated Appropriations Act of 1997 expressly provides for,
or prohibits, the expenditure of appropriations of the General Services Administration
for the purchase of employee business cards. In the absence of a contrary provision or limitation in its
appropriations act or other applicable legislation, GSA may lawfully obligate
a general or lump-sum appropriation for the purchase of business cards for suitable
mission-related use by GSA employees. Depending
upon the purpose for which they are to be used, GSA's purchases of business cards
for its employees may be chargeable either to its limited appropriation for "reception
and recreation expenses" or to its general appropriation. August
11, 1997 |
APPLICABILITY
OF SECTION 514 OF THE 1997 EDUCATION APPROPRIATIONS ACT TO POST-SECONDARY STUDENT
AID PROGRAMS antirotcmem | Section
514 of the Departments of Labor, Health and Human Services, and Education, and
Related Agencies Appropriations Act of 1997, which bars the provision of appropriated
funds, by contract or grant, to any institution of higher education that denies
campus access to military recruiters or Reserve Officer Training Corps representatives,
applies to so-called "campus-based" student aid programs, which involve grants
to educational entities, but does not apply to direct aid programs, which involve
grants to students rather than to educational entities. August
6, 1997 |
AUTHORITY OF
MILITARY EXCHANGES TO LEASE GENERAL PURPOSE OFFICE SPACE naf1
| The
Navy Exchange Service Command, a non-appropriated fund instrumentality ("NAFI"),
and similar military exchange units constitute integral components of the Department
of Defense and their leasing authority, like that of other DoD components, is
subject to the provisions of Reorganization Plan No. 18 of 1950, notwithstanding
their status as NAFIs. Accordingly, they are not authorized to lease general
purpose urban office space unless such authority is delegated to them by the General
Services Administration. August 1, 1997
|
APPLICABILITY OF 3 U.S.C. § 112 TO
DETAILEES SUPPORTING THE PRESIDENT'S INITIATIVE ON RACE raceout2mem
|
3 U.S.C. § 112 does not apply to the details of employees to support the President's
Initiative on Race. August 1, 1997 |
REMOVAL OF HOLDOVER OFFICIALS SERVING ON THE FEDERAL
HOUSING BOARD AND THE RAILROAD RETIREMENT BOARD removal
| The
President may remove, without cause, members of the Federal Housing Board and
the Railroad Retirement Board who are serving in holdover capacities and do not
enjoy express tenure protection by statute. August 1, 1997 |
ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES
AGAINST FEDERAL AGENCIES UNDER THE CLEAN AIR ACT cleanair.op
| The
Clean Air Act authorizes the Environmental Protection Agency administratively
to assess civil penalties against federal agencies for violations of the Act or
its implementing regulations. Separation of powers concerns do not bar EPA's exercise
of this authority because it can be exercised consistent with the Constitution.
July 16, 1997 |
FUNDING
OF STATE DEPARTMENT SETTLEMENTS OF FOREIGN TORT CLAIMS state3
|
Because 22 U.S.C. § 2669(f) expressly authorizes the Secretary of State to pay
settlements of foreign tort claims from funds appropriated for the activities
included in the State Department Basic Authorities Act or from funds "otherwise
available," the payment of such settlements is "otherwise provided for" within
the meaning of 31 U.S.C. § 1304(a), and therefore the federal Judgment Fund is
not available for the payment of such settlements. June 18,
1997 |
APPLICABILITY
OF 18 U.S.C. § 208 TO THE FEDERAL COMMUNICATIONS COMMISSION'S REPRESENTATIVE
ON THE BOARD OF DIRECTORS OF THE TELECOMMUNICATIONS DEVELOPMENT FUND 18usc208
| Because
the Telecommunications Development Fund is a non-profit entity that is owned,
funded, and controlled by the federal government, it is not an "organization"
within the meaning of 18 U.S.C. § 208. Therefore, the restrictions in §
208 do not apply to the service of the Federal Communications Commission's General
Counsel on the Board of Directors of the Fund.
June 12, 1997 |
NATIONAL
ARCHIVES ACCESS TO TAXPAYER INFORMATION coll
| Neither
the Secretary of the Treasury nor the President can permit the National Archives
and Records Administration to inspect tax returns or return information, pursuant
to 44 U.S.C. § 2906 (a)(2), for purposes of appraising the records.
May 28, 1997 |
SERVICE
BY FEDERAL OFFICIALS ON THE BOARD OF DIRECTORS OF THE BANK FOR INTERNATIONAL SETTLEMENTS
fed208 | 18 U.S.C.
§ 208(a) does not prohibit the Chairman of the Federal Reserve Board and the President
of the Federal Reserve Bank of New York from serving in their official capacities
on the Board of Directors of the Bank for International Settlements..
May 6, 1997 |
IMMUNITY
OF SMITHSONIAN INSTITUTION FROM STATE INSURANCE LAWS smithsonop2
| For
purposes of the federal government immunity arising from the Supremacy Clause
of the Constitution, the Smithsonian Institution is treated as an instrumentality
of the United States that is imbedded in the structure of the federal government.
The Smithsonian Institution is constitutionally immune from state insurance laws
and state licensing requirements that would otherwise apply to its issuance of
gift annuities. April 25, 1997 |
THE APPLICABILITY OF EXECUTIVE ORDER NO. 12976 TO THE
FDIC fdic_12_schultz | Neither
the FDIC's broad discretion to determine the compensation of its employees nor
its status as an independent agency exempts the FDIC from the requirements of
Executive Order No. 12976. April 22, 1997 |
PERSONAL SATISFACTION OF IMMIGRATION AND NATIONALITY
ACT OATH REQUIREMENT oathrnd22 | Section
504 of the Rehabilitation Act does not require accommodation for persons unable
to form the mental intent necessary to take the naturalization oath of allegiance
prescribed by section 337 of the Immigration and Nationality Act.
The oath requirement of section 337 may not be fulfilled by a guardian or other
legal proxy. April 18, 1997 |
CALCULATING RATE OF PAY OF DEPARTMENT OF JUSTICE
EMPLOYEES FOR PURPOSES OF "COVERED PERSONS" DETERMINATION UNDER INDEPENDENT COUNSEL
ACT icpay | The term
"rate of pay" in the section of the Independent Counsel Act that indicates which
Department of Justice employees are "covered persons" does not include "locality-based
comparability payments" under 5 U.S.C. § 5304. April 2, 1997 |
QUALIFICATION REQUIREMENT FOR ALIENS UNDER THE
PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996 40Q.9(Schultz)
| The
phrase "40 qualifying quarters of coverage" in title IV of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996 can fairly be interpreted as incorporating
the methodology under section 213 of the Social Security Act for calculating quarters
of coverage, but not also the strict definitions of wages, employment, and self-employment
income under other sections of the Social Security Act. March
27, 1997 |
PREEMPTIVE
EFFECT OF THE BILL EMERSON GOOD SAMARITAN FOOD DONATION ACT bressman
| The
Bill Emerson Good Samaritan Food Donation Act ("Act") preempts state
"good samaritan" statutes that provide less protection than the Act
from civil and criminal liability arising from food donated in good faith for
distribution to the needy. March 10, 1997
|
REVOCATION OF CITIZENSHIP ina340
| The
Immigration and Naturalization Service has authority to institute either administrative
or judicial proceedings to denaturalize citizens whose criminal convictions disqualified
them from citizenship as a matter of law. Whether the proceedings are administrative
or judicial, the INS must establish the allegations in its complaint by clear,
unequivocal, and convincing evidence. March 3, 1997 |
AUTHORITY OF THE ATTORNEY GENERAL TO GRANT DISCRETIONARY
RELIEF FROM DEPORTATION UNDER SECTION 212(C) OF THE IMMIGRATION AND NATIONALITY
ACT AS AMENDED BY THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
deportation_212c | The
amendment of section 212(c) of the Immigration and Nationality Act by section
440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 deprived the
Attorney General of the authority to grant discretionary relief from deportation
for aliens who committed certain crimes. Section 440(d) applies to section 212(c)
applications for discretionary relief pending on the effective date of AEDPA. February
21, 1997 |
WAIVER
OF OATH OF ALLEGIANCE FOR CANDIDATES FOR NATURALIZATION oathlltr3
| The
required oath of allegiance as a condition of naturalization under section 337
of the Immigration and Nationality Act, 8 U.S.C. § 1448(a), cannot be waived.
February 05, 1997 |
DELEGATION
OF THE PRESIDENT'S POWER TO APPOINT MEMBERS OF THE NATIONAL OCEAN RESEARCH LEADERSHIP
COUNCIL nolc | Draft amendments
to 10 U.S.C. § 7902 empowering the President to delegate to the head of a department
his authority to appoint certain members of the National Ocean Research Leadership
Council would not violate the Constitution's Appointments Clause.
January 29, 1997 |
PROPOSED
AGENCY INTERPRETATION OF "FEDERAL MEANS-TESTED PUBLIC BENEFITS" UNDER PERSONAL
RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996 meanstst10
| The
interpretation of the phrase "federal means-tested public benefit" in the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 proffered by the
Departments of Health and Human Services and Housing and Urban Development - that
it applies only to mandatory (and not discretionary) spending programs - constitutes
a permissible and legally binding construction of the statute January
14, 1997 |
BUREAU OF PRISONS
DISCLOSURE OF RECORDED INMATE TELEPHONE CONVERSATIONS prisons
| The
policy of the Criminal Division requiring outside law enforcement officials to
obtain some form of legal process authorizing access to contents of inmate telephone
conversations is not mandated by the Constitution or Title III of the Omnibus
Crime Control and Safe Streets Act of 1968. The practice of profiling
specific groups of inmates for monitoring raises concerns when it requires or
causes the Bureau of Prisons to alter its established monitoring procedures for
purposes unrelated to prison security or administration. Inmates
have a First Amendment right to some minimum level of telephone access, subject
to reasonable restrictions related to prison security and administration. Under
certain circumstances they also may have a Sixth Amendment right to make telephone
calls to their attorneys. January 14, 1997 |