Medical and Public Health Law Site
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
fcra_dk (HTML)
fcra_dk
(WPD) Size 49.1K
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 (HTML)
wilson(WPD) Size 16K
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
(HTML)
209fbi (WPD) Size 25K
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 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 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 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 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. August
14, 1997 USE OF GENERAL AGENCY APPROPRIATIONS
TO PURCHASE EMPLOYEE BUSINESS CARDS 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 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 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 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 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 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 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 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 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 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 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 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
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. April 18,
1997 CALCULATING RATE OF PAY OF DEPARTMENT OF
JUSTICE EMPLOYEES FOR PURPOSES OF "COVERED PERSONS" DETERMINATION UNDER INDEPENDENT
COUNSEL ACT April 2, 1997
QUALIFICATION REQUIREMENT FOR ALIENS UNDER THE PERSONAL
RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996 March
27, 1997 PREEMPTIVE EFFECT OF THE BILL EMERSON
GOOD SAMARITAN FOOD DONATION ACT March 10, 1997 REVOCATION OF CITIZENSHIP 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 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 February 5, 1997 DELEGATION OF THE PRESIDENT'S POWER TO APPOINT MEMBERS
OF THE NATIONAL OCEAN RESEARCH LEADERSHIP COUNCIL January 29, 1997 PROPOSED AGENCY INTERPRETATION OF "FEDERAL MEANS-TESTED PUBLIC BENEFITS"
UNDER PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996
LEADERSHIP COUNCIL January 14, 1997 BUREAU OF PRISONS DISCLOSURE OF RECORDED INMATE TELEPHONE
CONVERSATIONS 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. January 14, 1997
opaop
(HTML)
opaop
whistop
(HTML)
whistop Size 76K
emols.ac.html
emols.ac.wpd (Size 40K)
gjicfinop1 (HTML)
gjicfinop1 (WPD) Size 103K
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).
gsabc (HTML)
gsabc Size 64K
antirotcmem (HTML)
antirotcmem
(WPD) Size 68.9K
raceout2mem (HTML)
raceout2mem
(WPD) Size 23K
naf1 (HTML)
naf1(WPD) Size 83K
removal (HTML)
removal (WPD) Size 68.9K
cleanair.op
(HTML)
cleanair.op Size: 72K
state3
(HTML)
state3 (WPD) Size 21.9K
18usc208
(HTML)
18usc208 (WPD) Size 63K
coll (HTML)
coll
(WPD)Size 14.1K
fed208 (HTML)
fed208.wpd
Size: 72K
smithsonop2 (HTML)
smithsonop2 (WPD) Size 12.4K
fdic_12_schultz(HTML)
fdic_12_schultz(WPD) Size 20.7.1K
oathrnd22 (HTML)
oathrnd22(WPD)
Size 53.7K
The oath requirement of section 337
may not be fulfilled by a guardian or other legal proxy.
icpay(HTML)
icpay(WPD)
Size 12.4K
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.
40Q9(Schultz)(HTML)
40Q9(Schultz)WPD) Size 27.4K
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.
bressman (HTML)
bressman Size: 20K
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.
ina340(HTML)
ina340(WPD)Size 9.05K
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.
deportation_212c (HTML)
deportation_212c (WPD) Size 73K
oathlltr3(HTML)
oathlltr3(WPD) Size 9.05K
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.
nolc(HTML)
nolc(WPD) Size 58K
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.
meanstst10(HTML)
meanstst10(WPD)Size
62.4K
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
prisons (HTML)
prisons(WPD)
Size 59.6K
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.
List
of Years for Memoranda and Opinions
Last
updated 05/01/02
doj/jmd/ls/lmj