| Memoranda & Opinions | Overview
of Document |
PARTICIPATION BY PROCESSOR-OWNED
CATCHER VESSELS IN INSHORE COOPERATIVES UNDER THE AMERICAN FISHERIES ACT OF 1998
pollockopinionfinal
| Section 210(b)
of the American Fisheries Act of 1998 permits catcher vessels owned by shoreside
processors to participate in AFA-authorized fishery cooperatives.
December 10, 1999 |
TRIBAL
RESTRICTIONS ON SHARING OF INDIGENOUS KNOWLEDGE ON USES OF BIOLOGICAL RESOURCES
biodiv14
| The Indian
Civil Rights Act, rather than the federal Constitution, limits the power of an
Indian tribe vis-a-vis its members. In interpreting provisions of the ICRA, it
is appropriate to look to precedents under analogous constitutional provisions
constraining federal and state action, although particular facts about tribal
structure and traditions may be relevant to the analysis.
In
some factual circumstances, a tribal ordinance prohibiting members from sharing,
with researchers or others outside the tribe, information on possible commercial
uses of biological resources would raise concerns under the free speech provision
of the ICRA. The legality of such an ordinance would depend on a number of factorsincluding
how widely known the information is; whether those who hold the information have
a particular relationship of trust with the tribe; the magnitude of the tribal
interest underlying the tribe's effort not to disclose the information; and whether
the information can be viewed as tribal property under an intellectual property
regime that is otherwise consistent with applicable law.
October
12, 1999 |
APPOINTMENT
OF A SENATE-CONFIRMED NOMINEE
marbury_ltr
|
The President is not legally obligated to appoint a nominee
to whom the Senate has given its advice and consent. Until the President takes
the final public act necessary to complete the appointment, which in the case
of a Senate-confirmed official is customarily evidenced by the President's signing
the commission, the President retains full discretion not to appoint the nominee.
October 12, 1999 |
PROPOSED
CHANGE IN EEOC REGULATIONS CONCERNING RIGHT-TO-SUE NOTICES FOR PUBLIC SECTOR EMPLOYEES
eeocop
| The Equal
Employment Opportunity Commission proposal to amend its procedural regulations
to permit the Commission to issue a right-to-sue notice where it has failed to
make a reasonable cause determination within 180 days after the filing of a charge
against a state or local governmental entity is not permissible under Title VII
of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990.
October 7, 1999 |
APPLICABILITY OF EEOC PROPOSED FINAL RULE TO
THE DEPARTMENT OF VETERANS AFFAIRS
eeova
|
The Veterans' Benefits Act is not inconsistent with the proposed
Equal Employment Opportunity Commission final rule on hearings for federal employees'
EEO complaints, and therefore the Department of Veterans Affairs would be subject
to the rule to the same extent as other executive branch agencies.
September
28, 1999 |
ASSERTION OF
EXECUTIVE PRIVILEGE WITH RESPECT TO CLEMENCY DECISION
falnpotus
|
Executive privilege may properly be asserted in response to a congressional subpoena
seeking documents and testimony concerning the deliberations in connection with
President's decision to offer clemency to sixteen individuals.
Executive
privilege may properly be asserted in response to a congressional subpoena seeking
testimony by the Counsel to the President concerning the performance of official
duties on the basis that the Counsel serves as an immediate adviser to the President
and is therefore immune from compelled congressional testimony.
September 16, 1999 |
APPLICABILITY
OF 18 U.S.C. § 219 TO REPRESENTATIVE MEMBERS OF FEDERAL ADVISORY COMMITTEES
219new
| Representative members
of federal advisory committees - i.e., members who are chosen only to present
the views of a private interest - are not "public officials" covered by 18 U.S.C.
§ 219.
September 15, 1999 |
OFFICE
OF PERSONNEL MANAGEMENT PETITIONS FOR RECONSIDERATION OF NON_PRECEDENTIAL MERIT
SYSTEMS PROTECTION BOARD DECISIONS
frtibfinlast
|
The Director of the Office of Personnel Management is authorized
to petition the Merit Systems Protection Board to reconsider a non_precedential
decision of the Board if, and only if, the Director concludes that such decision
has a substantial impact on a civil service law, rule, regulation, or policy directive.
September 13, 1999 |
RESTRICTIONS
ON TRAVEL BY VOICE OF AMERICA CORRESPONDENTS
voabal
|
The Secretary of State and Chiefs of Mission may restrict travel
by Voice of America correspondents in foreign countries in order to protect their
safety, but only under conditions ensuring, to the greatest extent possible, the
independence of VOA correspondents.
September 10, 1999 |
INTERNAL REVENUE SERVICE REQUEST FOR DOCUMENTS IN DEFENSE
DEPARTMENT POSSESSION
irs_opinion
|
The Defense Contract Audit Agency is not under a legal obligation,
imposed by 26 U.S.C. § 7602(a), to comply with an Internal Revenue Service request
for documents in its possession.
September 1, 1999 |
ELIGIBILITY OF A DUAL UNITED STATES CITIZEN FOR
A PAID POSITION WITH THE DEPARTMENT OF JUSTICE
dualcitizen
|
Section 606 of the Treasury and General Government Appropriations
Act of 1999 does not bar the Department of Justice from employing, in a paid position,
a United States citizen who is also a citizen of another country.
August
26, 1999 |
THE INAPPLICABILITY
OF FEDERAL VACANCIES REFORM ACT'S REPORTING OBLIGATIONS FOR PAS OFFICERS SERVING
UNDER STATUTORY HOLDOVER PROVISIONS
damusholdover
|
There is no "vacancy" within the meaning of the Federal Vacancies
Reform Act of 1998 when a presidentially appointed, Senate_confirmed officer continues
to hold a position under a statutory holdover provision and therefore the holdover
service is not reportable under the Act.
July 30, 1999 |
TESTIMONY CONCERNING THE FEDERALISM ACCOUNTABILITY
ACT
test714a
| Provisions
of the proposed Federalism Accountability Act that would alter the rules under
which courts determine whether Congress has preempted state law by statute or
authorized preemption by regulation could have far reaching and unintended consequences
and should only be enacted if Congress determines that existing preemption doctrine
has systematically frustrated congressional intent and that statutory rules of
construction would produce better results.
Provisions of the bill that
would instruct courts to resolve ambiguities in federal law in favor f preserving
the authority of the states could frustrate the intentions of Congress and rulemaking
agencies and should not be enacted.
July 14, 1999 |
AUTHORITY OF THE UNITED STATES TO ENTER SETTLEMENTS
LIMITING THE FUTURE EXERCISE OF EXECUTIVE BRANCH DISCRETION
consent.decrees2
| Attorney General may
enter into settlements that would limit the future exercise of executive branch
discretion when that discretion has been conferred upon the executive branch pursuant
to statute and there exists no independent statutory limitation on the authority
of the executive branch to so limit the future exercise of that discretion.
The Attorney General's power to enter into settlements that would limit the
future exercise of discretion that has been conferred upon the executive branch
directly by the Constitution is constrained by the very constitutional provisions
that vest discretionary authority in the President and therefore necessarily preclude
the President from subjecting the exercise of that discretion to the control of
the other party to a settlement or to judicial enforcement.
Article III
of the Constitution does not preclude the executive branch from entering into
judicially enforceable discretion limiting settlements as a general matter or
bar federal courts from entering consent decrees that limit executive branch discretion
whenever such decrees purport to provide broader relief than a court could have
awarded pursuant to an ordinary injunction. Article III limitations may arise,
however, when, for example, the terms of the governmental promise are too amorphous
to be susceptible to Article III federal judicial enforcement.
Although
there may be sound policy reasons to reaffirm Attorney General Meese's 1986 policy
regulating the use of discretion limiting settlements, the concerns that led to
its adoption do not, in general, amount to legally binding limitations on the
scope of the executive branch's power to settle litigation in a manner that may
limit the future exercise of executive branch discretion.
June 15,
1999 |
TERM OF A MEMBER
OF THE MISSISSIPPI RIVER COMMISSION
mrc2
|
The term of a member of the Mississippi River Commission is
set by the statute governing his office, and the term dictated by the statute
applies even though the language of his nomination, confirmation, and commission
calls for a different term.
May 27, 1999 |
ACCESSIBILITY GUIDELINES AND FEDERAL LEASE RENEWALS
barrieropfin2
| The Architectural
and Transportation Barriers Compliance Board may require, pursuant to the Architectural
Barriers Act of 1968, that buildings first leased by federal agencies after 1976
be brought into compliance with current accessibility standards when the agency
negotiates renewal of the lease.
May 26, 1999 |
USMS OBLIGATION TO TAKE STEPS TO AVOID ANTICIPATED
APPROPRIATIONS DEFICIENCY
draftop5
| Under
the apportionment provisions of the Antideficiency Act, the United States Marshals
Service has an affirmative obligation to take steps to avoid a deficiency in its
Federal Prisoner Detention budget and any drastic curtailment of its prisoner
detention services by reducing current expenditures and/or exploring alternative
sources of funding that would not depend upon the receipt of additional funds
from Congress.
May 11, 1999 |
WHETHER
AND UNDER WHAT CIRCUMSTANCES GOVERNMENT REPRODUCTION OF COPYRIGHTED MATERIALS
IS A NONINFRINGING "FAIR USE" UNDER SECTION 107 OF THE COPYRIGHT ACT OF 1976
pincusfinal430
| Although government
reproduction of copyrighted material for governmental use would in many contexts
be a noninfringing fair use under section 107 of the Copyright Act of 1976, such
government reproduction of copyrighted material does not invariably qualify as
a "fair use."
An agency that decides to negotiate a photocopying license
should seek to limit the scope of the licensing agreement so as not to cover those
photocopying practices that the agency, in good faith, concludes are not infringing.
In order to determine whether a particular government photocopying
practice is a "fair use," the ultimate question to be answered is whether permitting
the government to continue to engage in the practice without paying a licensing
fee would stimulate productive thought and public instruction, or yield other
societal benefits, without excessively diminishing the incentives for creativity.
April 30, 1999 |
APPLICABILITY OF TRADE SECRETS ACT TO INTRAGOVERNMENTAL
EXCHANGE OF REGULATORY INFORMATION
ofheoopfinsent
|
The disclosure to certain federal financial regulatory agencies
of propriety information of the Office of Federal Housing Enterprise Oversight
obtained from the finance institutions it regulates would be "authorized by law"
within the meaning of the Trade Secrets Act and therefore would not violate that
Act's prohibitions against unauthorized agency disclosures of trade secrets or
other confidential business information.
April 5, 1999 |
GUIDANCE ON APPLICATION OF FEDERAL VACANCIES REFORM ACT OF
1998
finalqa
| This memorandum
provides guidance on the application of the Federal Vacancies Reform Act of 1998
to vacancies in Senate-confirmed offices within the executive branch.
March
22, 1999 |
GULF WAR VETERANS
HEALTH STATUTES
gulfopfind2d3
| Section
1604 of the Persian Gulf War Veterans Act of 1998 is constitutionally invalid
and ineffective insofar as it purports to nullify prospectively certain described
legislation that might be enacted in the future.
Overlapping provisions
of the Veterans Programs Enhancement Act of 1998 and the Persian Gulf War Veterans
Act of 1998, although redundant and burdensome in some respects if both statutes
are given effect, are not inherently conflicting or mutually exclusive, and therefore
the provisions of both laws must be treated as valid and effective.
March
12, 1999 |
ATTORNEY'S FEES
FOR LEGAL SERVICE PERFORMED PRIOR TO FEDERAL EMPLOYMENT
attyfee
|
18 U.S.C. § 205 prohibits a Civil Division attorney from receiving
attorney's fees for work in a case against the United States performed prior to
federal employment when the right to payment depends on a finding of liability
and award against the United States that takes place after the attorney's entry
into federal employment.
February 11, 1999 |
APPLICABILITY OF 18 U.S.C. § 208 TO NATIONAL GAMBLING
IMPACT STUDY COMMISSION
hewitt4
| The National
Gambling Impact Study Commission is not an "independent" agency for purposes of
a criminal conflict of interest statute, 18 U.S.C. § 208.
January
26, 1999 |
APPLICATION
OF 18 U.S.C. § 205 TO EMPLOYEES SERVING ON AN INTERGOVERNMENTAL PERSONNEL ACT
ASSIGNMENT
fbi205
| A federal
employee assigned to a state or local government or other non-federal entity under
the Intergovernmental Personnel Act is not prohibited by 18 U.S.C. § 205 from
representing the interest of the non-federal entity before the federal government,
including the employee's agency, if such representational activity is affirmatively
included with the scope of the employee's assignment as determined by the federal
agency head.
January 11, 1999 |
APPLICABILITY
OF 18 U.S.C. § 1721 TO COLLECTION OF FEE FOR STAMPED CARDS
stampedcardsfin
|
The Postal Service may charge a fee for stamped cards in addition
to the face value of the postage without violating 18 U.S.C. § 1721.
January 07, 1999 |
