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Opinions of the Office of Legal Counsent - DOJ

U.S. Department of Justice

Office of Legal Counsel

1997 Memoranda & Opinions

Overview of Document

APPLICATION OF CONSUMER CREDIT REPORTING REFORM ACT OF 1996 TO PRESIDENTIAL NOMINATION AND APPOINTMENT PROCESS
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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
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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
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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
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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
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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
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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
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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, including intelligence 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(e), 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 by attorneys for the Government even without prior court approval.

Section 104(a) of the National Security Act, as implemented by Executive Order No. 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
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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
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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

APPLICABILITY OF 3 U.S.C. § 112 TO DETAILEES SUPPORTING THE PRESIDENT'S INITIATIVE ON RACE
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3 U.S.C. § 112 does not apply to the details of employees to support the President's Initiative on Race.

August 1, 1997

AUTHORITY OF MILITARY EXCHANGES TO LEASE GENERAL PURPOSE OFFICE SPACE
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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

REMOVAL OF HOLDOVER OFFICIALS SERVING ON THE FEDERAL HOUSING BOARD AND THE RAILROAD RETIREMENT BOARD
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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 5, 1997

DELEGATION OF THE PRESIDENT'S POWER TO APPOINT MEMBERS OF THE NATIONAL OCEAN RESEARCH LEADERSHIP COUNCIL
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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 LEADERSHIP COUNCIL
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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
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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