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Opinions of the Office of Legal Counsent - DOJ

U.S. Department of Justice

Office of Legal Counsel

1998 Memoranda & Opinions

Overview of Document

PROPOSED SETTLEMENT OF DIAMOND v. DEPARTMENT OF HEALTH & HUMAN SERVICES
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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
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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
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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

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
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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
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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

September 11, 1998

AUTHORITY OF THE D.C. COUNCIL UNDER THE HOME RULE ACT TO AMEND THE SCHEDULE OF HEIGHTS OF BUILDINGS
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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
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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
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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
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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
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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
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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
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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, 2000

APPROPRIATE SOURCE FOR PAYMENT OF JUDGMENTS AND SETTLEMENTS IN UNITED STATES v. WINSTAR CORP. AND RELATED CASES
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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

THE VACANCIES ACT
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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

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

REIMBURSEMENT OF EXPENSES UNDER 5 U.S.C. § 5503(a)
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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
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The Attorney General may not waive the statute of limitations in the litigation or compromise of pending claims against the United 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
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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