Medical and Public Health Law Site
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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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