Memoranda & Opinions | Overview
of Document |
PROPOSED SETTLEMENT
OF DIAMOND v. DEPARTMENT OF HEALTH & HUMAN SERVICES hhsopmop2
| The
Department of Health and Human Services may lawfully enter into settlement providing
that the positions of specific employees will not be reclassified until they vacate
the positions if, in light of the facts of the case and recognizing the inherent
uncertainty of litigation, the agency concludes that the court might find there
was a cognizable danger of recurrent sexual discrimination in the reclassifications
in violation of Title VII of the Civil Rights Act of 1964.
December
4, 1998 |
MISCELLANEOUS
RECEIPTS ACT EXCEPTION FOR VETERANS' HEALTH CARE RECOVERIES blood
| The Veterans Reconciliation Act of 1997 creates an exception to the
Miscellaneous Receipts Act to the extent that a recovery or collection under the
Federal Medical Car Recovery Act is based on medical care or services furnished
under chapter 17 of title 38, United States Code, and thus allows the deposit
of such a recovery or collection in the Department of Veterans Affairs Medical
Care Collections Fund.
December 3,
1998 |
PRESIDENTIAL DETERMINATION
ALLOWING FINANCIAL ASSISTANCE TO TIBET tibet
| President Carter's 1980 determination that financial assistance
to the People's Republic of China would be in the national interest satisfies
the requirements of section 2(b)(2) of the Export_Import Bank Act of 1945 and
thus permits the Export_Import Bank to provide assistance to the region of Tibet,
its provincial government, and its residents without any presidential action in
addition to the prior determination made with respect to China.
November 6, 1998 |
THE
AUTHORITY OF THE BUREAU OF THE CENSUS TO ADJUST POPULATION DATA FOR PURPOSES OTHER
THAN APPORTIONMENT census | The Commerce
Department has the authority to use sampling and other recognized statistical
procedures in order to correct the unadjusted population figures obtained in the
decennial census for the year 2000, at least for purposes other than providing
the basis for apportioning seats in the United States House of Representatives.
October 7, 1998 |
LACK
OF AUTHORITY OF THE OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE TO REPRESENT
PRIVATE INDUSTRY IN PROCEEDINGS BEFORE THE UNITED STATES INTERNATIONAL TRADE COMMISSION
ustr2ltr | The Office
of the United States Trade Representative lacks authority under the Trade Act
of 1974 or its own organic statute to provide legal representation to a private
domestic industry in administrative proceedings before the United States International
Trade Commission. September 24, 1998 |
WHETHER THE FIFTH AMENDMENT PROHIBITS DISCLOSURE
OF THE RESULTS OF A COURT-ORDERED MENTAL EXAMINATION TO THE GOVERNMENT DURING
THE GUILT PHASE OF A TRIAL rule122a10
|
The Fifth Amendment privilege against self-incrimination does not prohibit disclosure
to the government, during the guilt phase of a trial, of the results of a court-ordered
mental examination. September 21, 1998 |
OFFICIAL SERVICE BY STATE DEPARTMENT EMPLOYEES ON THE
BOARDS OF AMERICAN-SPONSORED SCHOOLS OVERSEAS schoolsdos
|
Official service by State Department employees on the boards of American- sponsored
schools overseas is authorized by statute and does not violate 18 U.S.C. §
208. September 11, 1998 |
AUTHORITY OF THE D.C. COUNCIL UNDER THE HOME RULE
ACT TO AMEND THE SCHEDULE OF HEIGHTS OF BUILDINGS homerule3opn |
The Council of the District of Columbia has the authority, under
section 602(a)(6) of the Home Rule Act of 1973, to amend the Schedule of Heights
of Buildings Adjacent to Public Buildings as long as any amendment is within the
overall limitations set forth in the Building Height Act of 1910.
The
D.C. Council's authority is not further restricted by the limitations contained
in the Schedule of Heights that was in effect on December 24, 1973.
August 28, 1998 |
APPLICATION
OF 18 U.S.C. § 208 TO SERVICE BY EXECUTIVE BRANCH EMPLOYEES ON BOARDS OF STANDARD-SETTING
ORGANIZATIONS standardsorg
| Under 18 U.S.C. § 208, a federal employee may serve as a member
of the board of a private voluntary standards organization to the extent necessary
to permit participation in his or her official capacity in the organization's
standard-setting activities.
August 24,
1998 |
CONSTRUCTION OF
STATE REPORTING REQUIREMENTS IN SECTION 404 OF THE PERSONAL RESPONSIBILITY AND
WORK OPPORTUNITY RECONCILIATION ACT section404
|
The better interpretation of the state reporting requirements in section 404
of the Personal Responsibility and Work Opportunity Reconciliation Act is that
they apply only to those state agencies administering the particular federally
funded program in question, not to all state agencies in a State that receives
funds under the program.
August 18, 1998 |
APPLICABILITY OF 18 U.S.C. § 208 TO SERVICE BY
FEDERAL OFFICIALS ON THE DISTRICT OF COLUMBIA DOWNTOWN BUSINESS IMPROVEMENT DISTRICT
CORPORATION BOARD OF DIRECTORS gsa208fn
| A
federal official serving on the Board of Directors of the D.C. Downtown Business
Improvement District Corporation in his or her official capacity is not a director
of an outside organization within the meaning of 18 U.S.C. § 208, and therefore
the official's service is not barred by § 208. August
7, 1998 |
INELIGIBILITY
OF NEW JERSEY TRANSIT CORPORATION BOARD MEMBER FOR APPOINTMENT TO AMTRAK BOARD
OF DIRECTORS amtrakrev1
|
A public member of the Board of Directors of the New Jersey Transit Corporation
constitutes a representative of rail management under Section 411(a) of the Amtrak
Reform and Accountability Act of 1997 and is therefore ineligible for appointment
to the Amtrak Board of Directors.
July
30, 1998 |
ADMINISTRATIVE
SETTLEMENT OF DISPUTES CONCERNING DETERMINATIONS OF MINERAL ROYALTIES DUE THE
GOVERNMENT mmsopd2 | The Department
of the Interior is authorized, before the completion of an administrative appeal,
to settle disputed determinations of mineral royalties due the Government exceeding
$100,000 made by the Minerals Management Service without obtaining the approval
of the Justice Department under the Federal Claims Collection Act.
July 28, 1998 |
CONSTITUTIONAL
CONCERNS RAISED BY THE COLLECTIONS OF INFORMATION ANTIPIRACY ACT righto
|
The proposed Collections of Information Antipiracy Act raises difficult and novel
constitutional questions concerning Congress's power to restrict the dissemination
of information. Congress may not, pursuant to the Intellectual Property Clause
of the Constitution, create "sweat of the brow" protection for compiled facts,
at least insofar as such protection would extend to what the Supreme Court has
termed the nonoriginal portion of such a compilation. Either or both the Intellectual
Property Clause and the First Amendment may impose limitations on the exercise
of congressional power under the Commerce Clause that would raise serious constitutional
concerns regarding the constitutionality of the bill. July
28, 1998 |
APPROPRIATE
SOURCE FOR PAYMENT OF JUDGMENTS AND SETTLEMENTS IN UNITED STATES v. WINSTAR CORP.
AND RELATED CASES winstarfinal | The Federal
Savings and Loan Insurance Corporation Resolution Fund is the appropriate source
of payment for judgments against, and settlements by, the United States in United
States v. Winstar Corp. and similar cases arising from the breach of certain agreements
to which the Federal Savings and Loan Insurance Corporation was a party.
July 22, 1998 |
WAIVER
OF STATUTES OF LIMITATIONS IN CONNECTION WITH CLAIMS AGAINST THE DEPARTMENT OF
AGRICULTURE solmem_612 | The Supreme
Court's decision in Irwin v. Department of Veterans Affairs made no alteration
in the fundamental rules governing waivers of sovereign immunity in actions against
the United States. Irwin and the cases following it therefore provide no support
for the novel conclusion that the executive branch has the discretion to dispense
with a congressional mandated statute of limitations in litigation or the compromise
of claims. Unless Congress provides to the contrary, adherence to the relevant
statute of limitations remains a strict and non-waivable condition on suits against
the federal government.
Enactment of legislation authorizing the payment
of claims barred by the statute of limitations under the Equal Credit Opportunity
Act is the necessary and constitutionally appropriate means of satisfying such
claims. June 18, 1998 |
ACCESS
TO CRIMINAL HISTORY RECORDS BY NON-GOVERNMENTAL ENTITIES PERFORMING AUTHORIZED
CRIMINAL JUSTICE FUNCTIONS chriltr004 |
Non-governmental entities performing authorized criminal justice
functions under contract with government law enforcement agencies may be granted
access to criminal history records maintained under the authority of 28 U.S.C.
§ 534, subject to effective controls to guard against unauthorized use and to
insure effective oversight by the Department of Justice.
Because
Department of Justice regulations implementing 28 U.S.C. § 534 do not affirmatively
authorize dissemination of criminal history records to non_governmental entities
under contract to assist law enforcement agencies, those regulations should be
amended to provide such authorization before access is granted to those entities.
June 12, 1998 |
APPOINTMENT
OF VICE CHAIR OF FEDERAL RESERVE BOARD TO SERVE CONCURRENTLY AS CHAIR OF THE DISTRICT
OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY reserve
|
The Vice Chair of the Federal Reserve Board may also serve as
Chair of the District of Columbia Financial Responsibility and Management Assistance
Authority without violating sections 205 or 208 of title 18. Her dual service
would also have to comply with the Federal Reserve Act's "entire-time" requirement.
June 1, 1998 |
EFFECT
OF POSSE COMITATUS ACT ON PROPOSED DETAIL OF CIVILIAN EMPLOYEE TO THE NATIONAL
INFRASTRUCTURE PROTECTION CENTER pca1fnl |
The proposed detail of a civilian employee of Department of Defense
to the National Infrastructure Protection Center, a component of the Federal Bureau
of Investigation, is permissible under the Posse Comitatus Act.
May
26, 1998 |
WHISTLEBLOWER
PROTECTIONS FOR CLASSIFIED DISCLOSURES whistle_housetestimony_olc
| A Senate
bill addressing the disclosure to Congress of classified “whistleblower”
information concerning the intelligence community is unconstitutional because
it would deprive the President of the opportunity to determine how, when and under
what circumstances certain classified information should be disclosed to Members
of Congress.
A House bill addressing the same subject is constitutional
because it contains provisions that allow for the exercise of the President's
constitutional authority.
May 20, 1998 |
CONSTITUTIONALITY OF PROPOSED LIMITATIONS ON
TOBACCO INDUSTRY tobacco_lr. | Congress
has the authority under the Constitution to impose significant new regulations
on tobacco companies, including (1) restrictions on advertising and marketing
of tobacco products that are tailored to prevent access to advertising by minors;
(2) contingent monetary exactions, to be collected from tobacco companies if tobacco
use by minors fails to meet prescribed targets; and (3) requirements that companies
disclose certain documents to the public and to federal regulators.
Consent by the tobacco companies to increased federal regulation, which those
companies might grant in order to qualify for federally prescribed limits on liability,
would permit Congress to establish additional restrictions on tobacco advertising
that it could not impose directly.
May 13, 1998 |
LEGAL AUTHORITY OF EXECUTIVE OFFICE OF THE PRESIDENT
TO REQUIRE INDEPENDENT AGENCIES TO CONDUCT BACKBROUND CHECKS OF NONCAREER SES
PERSONNEL CANDIDATES ses004
|
No office or agency within the Executive Office of the President may require
independent agencies to conduct certain background checks of candidates for noncareer
Senior Executive Service positions.
April
30, 1998 |
COVERAGE ISSUES
UNDER THE INDIAN SELF-DETERMINATION ACT isdafin |
The 1990 amendment to the Indian Self-Determination and Education
Asistance Act of 1975 covers only those torts for which the Federal Tort claims
Act waives the sovereign immunity of the United States.
The 1990
amendment does not authorize or otherwise address representation of tribes or
tribal employees who are sued in their individual capacities for constitutional
torts.
April 22, 1998 |
POSSIBLE BASES OF JURISDICTION FOR THE DEPARTMENT OF JUSTICE TO INVESTIGATE MATTERS
RELATING TO THE ASSASSINATION OF MARTIN LUTHER KING, JR. mlkjurfnl |
The Department of Justice may conduct an investigation relating
to the assassination of Martin Luther King, Jr., to investigate the commission
of federal crimes for which the applicable statute of limitations has run, in
order to establish the facts of the crime, independent of whether such facts may
lead to a prosecution.
April 20, 1998 |
APPLICATION OF THE DOUBLE JEOPARDY CLAUSE TO
DISGORGEMENT ORDERS UNDER THE FEDERAL TRADE COMMISSION ACT disgorgement |
In a civil suit brought by the Federal Trade Commission challenging
unfair trade practices, the Double Jeopardy Clause of the Fifth Amendment is not
implicated by a judgment requiring restitution and ordering that, in the event
restitution is impracticable, the defendant pay money to the United States Treasury.
April 9, 1998 |
INTERPRETATION
OF PHRASE "RECOMMENDATION THAT FUNDS BE PUT TO BETTER USE" IN INSPECTOR GENERAL
ACT fbuop2 |
Although it is a close question, the better interpretation of
the Inspector General Act is that Congress did not intend to limit the phrase
"recommendation that funds be put to better use" to only those audit recommendations
that achieve identifiable monetary savings.
March
20, 1998 |
THE VACANCIES
ACT vacan_tes | The Vacancies
Act is not the exclusive authority for temporarily assigning the duties of a Senate-confirmed
office. Statutes vesting an agency's powers in the agency head and allowing delegation
to subordinate officials also may be used to assign, on an interim basis, the
duties of certain vacant Senate-confirmed offices.
March
18, 1998 |
APPLICABILITY
OF 18 U.S.C. § 431 TO LIMITED PARTNERSHIP INTERESTS IN GOVERNMENT LEASES
UNDER PROPOSED MODIFIED TRANSACTION Leaseop2
| A
modified version of the proposed real estate transaction described in the February
17, 1998 opinion that gives the blind trusts no interest in any government contracts
is permissible under 18 U.S.C. § 431.
March 13, 1998 |
APPLICABILITY OF 18 U.S.C. §§ 431-433 TO
LIMITED PARTNERSHIP INTERESTS IN GOVERNMENT LEASES UNDER PROPOSED TRANSACTION
Lease6 | The interests of two
Members of Congress under a proposed real estate transaction involving limited
partnership interests in government leases would fall within the prohibition of
18 U.S.C. § 431.
February 17, 1998 |
REIMBURSEMENT OF EXPENSES UNDER 5 U.S.C. §
5503(a) Recess | 5 U.S.C.
§ 5503(a) does not prohibit individuals reappointed to the Board of Directors
of the Civil Liberties Public Education Fund during a congressional recess from
receiving reimbursement for travel, subsistence, and other necessary expenses
associated with performing their functions.
February 2,
1998 |
STATUTE OF LIMITATIONS
AND SETTLEMENT OF EQUAL CREDIT OPPORTUNITY ACT DISCRIMINATION CLAIMS AGAINST THE
DEPARTMENT OF AGRICULTURE usdafinl
| The
Attorney General may not waive the statute of limitations in the litigation or
compromise of pending claims against theUnited States.
Absent a specific
provision to the contrary, a statute of limitations on civil actions also should
apply to administrative settlements of claims arising under that statute pursuant
to 31 U.S.C. § 3702.
31 U.S.C. § 3702 does not authorize
USDA to pay compensatory damages in an administrative settlement of an ECOA claim
if ECOA's two year statute of limitations has run.
Filing an administrative
claim with USDA does not toll ECOA's statute of limitations.
ECOA's
statute of limitations is, in appropriate circumstances, subject to the doctrines
of equitable tolling and equitable estoppel.
January 29,
1998 |
18 U.S.C. §
203 AND CONTINGENT INTERESTS IN EXPENSES RECOVERABLE IN LITIGATION AGAINST THE
UNITED STATES govservice98 | 18 U.S.C.
§ 203 does not prohibit a prospective government officer from maintaining
upon his entry into government service a contingent interest in expenses recoverable
in litigation involving the United States.
January 28, 1998 |