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Opinions of the Office of Legal Counsent - DOJ

U.S. Department of Justice

Office of Legal Counsel

1994 Memoranda & Opinions

Overview of Document

AUTHORITY OF THE FEDERAL FINANCIAL SUPERVISORY AGENCIES UNDER THE COMMUNITY REINVESTMENT ACT
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The federal financial supervisory agencies lack authority under the Community Reinvestment Act of 1977 to provide by regulation that financial institutions that do not meet the credit needs of their communities may be subject to administrative enforcement actions under 12 U.S.C. § 1818.

December 15, 1994

WHETHER URUGUAY ROUND AGREEMENTS REQUIRED RATIFICATION AS A TREATY
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The Uruguay Round Agreements concluded under the auspices of the General Agreement on Tariffs and Trade did not require ratification by the Senate as a treaty, but could constitutionally be executed by the President and approved and implemented by Act of Congress.

November 22, 1994

CONGRESSIONAL TESTIMONY OF AN ASSISTANT UNITED STATES ATTORNEY ON BEHALF OF THE NATIONAL ASSOCIATION OF ASSISTANT UNITED STATES ATTORNEYS
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The Department of Justice correctly takes the position that it may not prohibit an Assistant United States Attorney ("AUSA") from testifying before Congress in his or her personal capacity on behalf of the National Association of Assistant United States Attorneys.

The Department of Justice rules regulating such testimony are consistent with the First Amendment. Those rules require that the AUSA make it clear that he or she is not speaking for the Department, avoid using or permitting the use of his or her official title or position in connection with the testimony (except as one of several biographical details), and comply with rules on the protection of confidential information.

November 7, 1994

APPLICATION OF 18 U.S.C. § 205 TO COMMUNICATIONS BETWEEN THE NATIONAL ASSOCIATION OF ASSISTANT UNITED STATES ATTORNEYS AND THE DEPARTMENT OF JUSTICE
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The restrictions of 18 U.S.C. § 205 preclude current federal employees from representing the National Association of Assistant United States Attorneys ("NAAUSA") before the Department of Justice regarding compensation, workplace issues, and other issues that focus on the interests of Assistant United States Attorneys ("AUSAs") or another discrete and identifiable class of persons or entities.

Section 205 does not preclude several other kinds of communications between the Department and NAAUSA or similar associations. The Department is not precluded from dealing with individual AUSAs or groups of AUSAs in their official capacities on matters affecting AUSAs, even if those AUSAs are coincidentally members of NAAUSA. Nor does section 205 place any restrictions on representatives who are not current federal employees, such as NAAUSA's executive director or former AUSAs no longer employed by the government. Finally, discussions of broad policy directed towards a large and diverse group of persons would be permissible under the statute.

November 7, 1994

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES
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This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.

November 2, 1994

THE TWENTY-SECOND DECENNIAL CENSUS
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Neither the Enumeration Clause of the Constitution nor the Census Act precludes the Bureau of the Census from statistically adjusting "headcounts" in the decennial census for the year 2000 or conducting the non-response follow-up on a sample basis. The provision in the Census Act prohibiting sampling for purposes of apportionment of the House of Representatives does not preclude reliance upon statistical adjustments that would improve the accuracy of "headcount" data.

October 7,1994

AVAILABILITY OF MONEY DAMAGES UNDER THE RELIGIOUS FREEDOM RESTORATION ACT
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Section 3(c) of the Religious Freedom Restoration Act, which makes available "appropriate relief" in judicial proceedings against federal and state government entities, does not waive or abrogate the sovereign immunity of federal and state governments against the award of money damages. 

October 7, 1994

DEPLOYMENT OF UNITED STATES ARMED FORCES INTO HAITI
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The President possessed the legal authority to deploy United States Armed Forces into Haiti. 

The planned deployment accorded with the sense of Congress, satisfied the requirements of the War Powers Resolution, and was not a "war" with the meaning of the Constitution.

September 27, 1994

CONSTITUTIONALITY OF LEGISLATION EXTENDING THE TERMS OF OFFICE OF UNITED STATES PAROLE COMMISSIONERS
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Legislation extending the term of an officer who serves at will does not violate the Appointments Clause of the United States Constitution. Because United States Parole Commissioners may be removed by the President at will, Pub. L. 101-650, § 316, which extends the terms of office of certain Parole Commissioners, does not violate the Appointments Clause.

July 15, 1994

UNITED STATES ASSISTANCE TO COUNTRIES THAT SHOOT DOWN CIVIL AIRCRAFT INVOLVED IN DRUG TRAFFICKING
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The Aircraft Sabotage Act of 1984 applies to the police and military personnel of foreign governments. In particular, the Act applies to the use of deadly force by such foreign governmental actors against civil aircraft in flight that are suspected of transporting illegal drugs. There is accordingly a substantial risk that United States Government officers and employees who provide flight tracking information or certain other forms of assistance to the aerial interdiction programs of foreign governments that have destroyed such aircraft, or that have announced an intent to do so, would be aiding and abetting conduct that violated the Act.

July 14, 1994

REVIEW OF 1988 OPINION CONCERNING THE APPLICABILITY OF SECTION 504 OF THE REHABILITATION ACT TO INDIVIDUALS INFECTED WITH HIV
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The 1988 Office of Legal Counsel opinion accurately describes the duties imposed by section 504 of the Rehabilitation Act with respect to individuals infected with the Human Immunodeficiency Virus. The subsequent passage of the Americans with Disabilities Act did not alter the analysis of cases arising under the Rehabilitation Act, although an amendment to section 504 now requires reference to standards set forth in the ADA. Application of the standards set forth under section 504 in any particular case requires consideration of current scientific understanding of HIV infection. Advances in the scientific understanding of HIV infection since 1988 may undermine some of the discussion in the 1988 opinion about the application of these standards to individual cases. 

July 8, 1994

APPLICABILITY OF 18 U.S.C. § 208 TO PROPOSED APPOINTMENT OF GOVERNMENT OFFICIAL TO THE BOARD OF CONNIE LEE ITI
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An executive branch officer or employee appointed to the Board of Directors of Connie Lee would be a "director" within the meaning of 18 U.S.C. § 208(a) and therefore would be disqualified from participating "personnally and substantially" in any "particular matter" implicating the financial interests of Connie Lee unless the conditions of subsection 208(b) are satisfied.

June 22, 1994

PRE-JUDGMENT INTEREST UNDER THE BACK PAY ACT FOR REFUNDS OF FEDERAL INSURANCE CONTRIBUTIONS ACT OVERPAYMENTS
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The Back Pay Act's authorization of prejudgment interest does not apply to the return of a Federal Insurance Contributions Act tax overpayment. Even if the Back Pay Act did apply to such returns, an agency's specific exemption from liability under FICA would override the provisions of the Back Pay Act.

May 31, 1994
 

DEPUTIZATION OF MEMBERS OF CONGRESS AS SPECIAL DEPUTY U.S. MARSHALS
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The deputization of members of Congress as special Deputy U.S. Marshals is inconsistent with separation of powers principles and with the statutory language and historical practice governing special deputation.

May 25, 1994

RECONSIDERATION OF APPLICABILITY OF THE DAVIS-BACON ACT TO THE VETERAN ADMINISTRATION'S LEASE OF MEDICAL FACILITIES
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Contrary to the view expressed in an earlier Opinion of the Office of Legal Counsel, the plain language of the Davis-Bacon Act does not bar its application to a lease contract on the ground that such contracts are per se not contracts for construction. The applicability of the Davis-Bacon Act to any specific lease contract can be determined only by considering the details of the particular contract.

May 23, 1994

AUTHORITY OF DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT TO INITIATE ENFORCEMENT ACTIONS UNDER THE FAIR HOUSING ACT AGAINST OTHER EXECUTIVE BRANCH AGENCIES
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Because substantial separation of powers concerns would be raised by construing the Fair Housing Act ("the Act") to authorize the Department of Housing and Urban Development ("HUD") to initiate enforcement proceedings against other executive branch agencies, the Act cannot be so construed unless it contains an express statement that Congress intended HUD to have such authority. Because the Act does not contain such an express statement, it does not grant HUD this authority. 

There is no basis for construing the Act so that the HUD investigative and administrative process under the Act may be deemed applicable, but the judicial enforcement procedures deemed inapplicable.

May 17, 1994

ELIGIBILITY OF INVOLUNTARY WARTIME RELOCATEES TO JAPAN FOR REDRESS UNDER THE CIVIL LIBERTIES ACT OF 1988
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The proposed Department of Justice change in its interpretation of the Civil Liberties Act of 1988 to extend redress under the Act to minors who accompanied their parents to Japan during World War II and to adults who are able to show that their relocation to Japan during that period was involuntary is a reasonable and permissible interpretation of the statute. Although an agency interpretation that has been modified or reversed is likely to receive less deference by a reviewing court than a consistent and contemporaneous interpretation, the fact of modification does not preclude the court from granting deference to the new interpretation.

May 10, 1994

EQUITABLE TRANSFERS OF FORFEITED MONIES OR PROPERTY
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When the federal government makes an equitable transfer of forfeited monies or property to a state or local law enforcement agency, that transfer is more appropriately characterized as a conditional gift to the agency rather than as a formal contract between the federal government and the agency. 

If the state or local agency fails to use the transferred property for law enforcement purposes, the federal government may be able to pursue restitution of the property.

April 19, 1994

MARAD RULEMAKING AUTHORITY UNDER CARGO PREFERENCE LAWS
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The U.S. Maritime Administration has the authority to promulgate rules establishing mandatory uniform charter terms for the carriage of cargoes subject to the Cargo Preference Act of 1954.

April 19, 1994

AUTHORITY OF USDA TO AWARD MONETARY RELIEF FOR DISCRIMINATION
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The Department of Agriculture has authority to award monetary relief, attorneys' fees, and costs to a person who has been discriminated against in a program conducted by USDA if a court could award such relief in an action by the aggrieved person. That question is controlled by whether the anti-discrimination provisions of the applicable civil rights statute apply to federal agencies, and if so, whether the statute waives the sovereign immunity of the United States against imposition of such relief.

The anti-discrimination provisions of Title VI of the Civil Rights Act of 1964 do not apply to federal agencies. Some anti-discrimination provisions in each of the other civil rights statutes addressed in the opinion do apply to federal agencies, but only one of the statutes, the Equal Credit Opportunity Act, waives sovereign immunity with respect to monetary relief, authorizing imposition of compensatory damages. The Fair Housing Act and the Rehabilitation Act do not waive immunity against monetary relief. Attorneys' fees and costs may be awarded pursuant to the waiver of immunity contained in the Equal Access to Justice Act.

April 18, 1994

SIXTH AMENDMENT IMPLICATIONS OF LAW ENFORCEMENT CONTACT WITH CORPORATE EXECUTIVES
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Law enforcement contacts with high-ranking executives of a corporation after criminal charges have been filed against the corporation violate the corporation's Sixth Amendment right to counsel. 

No Sixth Amendment violation occurs when law enforcement contacts with high-ranking executives occur while civil penalty proceedings are in progress against the corporation.

April 15, 1994

WHETHER MEMBERS OF THE SENTENCING COMMISSION WHO WERE APPOINTED PRIOR TO THE ENACTMENT OF A HOLDOVER STATUTE MAY EXERCISE HOLDOVER RIGHTS PURSUANT TO THE STATUTE
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Statutory provisions that allow members of the United States Sentencing Commission to hold over in office after their terms have expired apply to incumbent members who were appointed prior to the enactment of the holdover statute.

Commissioners who were appointed prior to the enactment of the holdover statute may constitutionally exercise such holdover rights without violating the Appointments Clause. 

April 5, 1994

APPLICATION OF THE BRADY ACT'S CRIMINAL PENALTIES TO STATE OR LOCAL LAW ENFORCEMENT OFFICERS
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The criminal penalties contained in the Brady Handgun Violence Protection Act do not apply to state or local law enforcement officers in the performance of their duties under the Brady Act. Accordingly, the United States lacks the authority to prosecute state or local officials for violations of the Brady Act.

March 16, 1994

OCC MORTGAGE LENDING TESTING PROGRAM
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Individuals who serve as "testers" in a proposed Office of the Comptroller of the Currency program designed to identify discriminatory lending practices by national banks would not violate any federal criminal laws if, as part of the program, they provide false information to targeted banks.

March 8, 1994

APPLICABILITY OF EMOLUMENTS CLAUSE TO EMPLOYMENT OF GOVERNMENT EMPLOYEES BY FOREIGN PUBLIC UNIVERSITIES
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The Emoluments Clause does not apply in the cases of government employees offered faculty employment by a foreign public university where it can be shown that the university acts independently of the foreign State when making faculty employment decisions.

March 1, 1994

WHETHER THE OFFICE OF THE VICE PRESIDENT IS AN "AGENCY" FOR PURPOSES OF THE FREEDOM OF INFORMATION ACT
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The Office of the Vice President is not an "agency" for purposes of the Freedom of Information Act. 

February 14, 1994

DENIAL OF PUBLIC ACCESS TO TRIAL EXHIBITS IN CHILD PORNOGRAPHY PROSECUTIONS
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February 10, 1994

RESPONSIBILITY FOR ISSUING REVISED HATCH ACT REGULATIONS
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The Office of Personnel Management, rather than the Office of Special Counsel, has the authority to promulgate regulations delimiting the scope and nature of permissible activities under the Hatch Act Reform Amendments of 1993. 

February 2, 1994