Medical and Public Health Law Site
Opinions of the Office of Legal Counsent - DOJ
U.S. Department of Justice
Office of Legal Counsel
1999 Memoranda & Opinions
Overview of Document
PARTICIPATION BY PROCESSOR-OWNED CATCHER VESSELS IN INSHORE COOPERATIVES
UNDER THE AMERICAN FISHERIES ACT OF 1998
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Section 210(b) of the American Fisheries
Act of 1998 permits catcher vessels owned by shoreside processors to participate
in AFA-authorized fishery cooperatives.
December 10, 1999
TRIBAL RESTRICTIONS ON SHARING
OF INDIGENOUS KNOWLEDGE ON USES OF BIOLOGICAL RESOURCES
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The Indian Civil Rights Act, rather than the federal Constitution,
limits the power of an Indian tribe vis-a-vis its members. In interpreting provisions
of the ICRA, it is appropriate to look to precedents under analogous constitutional
provisions constraining federal and state action, although particular facts about
tribal structure and traditions may be relevant to the analysis.
In some factual circumstances, a tribal ordinance prohibiting members from
sharing, with researchers or others outside the tribe, information on possible
commercial uses of biological resources would raise concerns under the free speech
provision of the ICRA. The legality of such an ordinance would depend on a number
of factorsincluding how widely known the information is; whether those who hold
the information have a particular relationship of trust with the tribe; the magnitude
of the tribal interest underlying the tribe's effort not to disclose the information;
and whether the information can be viewed as tribal property under an intellectual
property regime that is otherwise consistent with applicable law.
October 12, 1999
APPOINTMENT
OF A SENATE-CONFIRMED NOMINEE
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The President is not legally obligated to appoint a nominee
to whom the Senate has given its advice and consent. Until the President takes
the final public act necessary to complete the appointment, which in the case
of a Senate-confirmed official is customarily evidenced by the President's signing
the commission, the President retains full discretion not to appoint the nominee.
October 12, 1999
PROPOSED
CHANGE IN EEOC REGULATIONS CONCERNING RIGHT-TO-SUE NOTICES FOR PUBLIC SECTOR EMPLOYEES
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The Equal Employment Opportunity
Commission proposal to amend its procedural regulations to permit the Commission
to issue a right-to-sue notice where it has failed to make a reasonable cause
determination within 180 days after the filing of a charge against a state or
local governmental entity is not permissible under Title VII of the Civil Rights
Act of 1964 or the Americans with Disabilities Act of 1990.
October 7, 1999
APPLICABILITY
OF EEOC PROPOSED FINAL RULE TO THE DEPARTMENT OF VETERANS AFFAIRS
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The
Veterans' Benefits Act is not inconsistent with the proposed Equal Employment
Opportunity Commission final rule on hearings for federal employees' EEO complaints,
and therefore the Department of Veterans Affairs would be subject to the rule
to the same extent as other executive branch agencies.
September 28, 1999
ASSERTION OF EXECUTIVE PRIVILEGE WITH RESPECT TO CLEMENCY
DECISION
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Executive privilege may properly
be asserted in response to a congressional subpoena seeking documents and testimony
concerning the deliberations in connection with President's decision to offer
clemency to sixteen individuals.
Executive privilege may properly be asserted
in response to a congressional subpoena seeking testimony by the Counsel to the
President concerning the performance of official duties on the basis that the
Counsel serves as an immediate adviser to the President and is therefore immune
from compelled congressional testimony.
September 16, 1999
APPLICABILITY OF 18 U.S.C. § 219
TO REPRESENTATIVE MEMBERS OF FEDERAL ADVISORY COMMITTEES
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Representative
members of federal advisory committees - i.e., members who are chosen only to
present the views of a private interest - are not "public officials" covered by
18 U.S.C. § 219.
September 15, 1999
OFFICE OF PERSONNEL MANAGEMENT PETITIONS
FOR RECONSIDERATION OF NON_PRECEDENTIAL MERIT SYSTEMS PROTECTION BOARD DECISIONS
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The Director of the Office of Personnel
Management is authorized to petition the Merit Systems Protection Board to reconsider
a non_precedential decision of the Board if, and only if, the Director concludes
that such decision has a substantial impact on a civil service law, rule, regulation,
or policy directive.
September 13, 1999
RESTRICTIONS ON TRAVEL BY VOICE
OF AMERICA CORRESPONDENTS
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The Secretary of State and
Chiefs of Mission may restrict travel by Voice of America correspondents in foreign
countries in order to protect their safety, but only under conditions ensuring,
to the greatest extent possible, the independence of VOA correspondents.
September 10, 1999
INTERNAL
REVENUE SERVICE REQUEST FOR DOCUMENTS IN DEFENSE DEPARTMENT POSSESSION
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The Defense Contract Audit Agency is not under a legal obligation,
imposed by 26 U.S.C. § 7602(a), to comply with an Internal Revenue
Service request for documents in its possession.
September 1, 1999
ELIGIBILITY OF A DUAL UNITED STATES
CITIZEN FOR A PAID POSITION WITH THE DEPARTMENT OF JUSTICE
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Section 606 of the Treasury and General Government Appropriations
Act of 1999 does not bar the Department of Justice from employing, in a paid position,
a United States citizen who is also a citizen of another country.
August 26, 1999
THE
INAPPLICABILITY OF FEDERAL VACANCIES REFORM ACT'S REPORTING OBLIGATIONS FOR PAS
OFFICERS SERVING UNDER STATUTORY HOLDOVER PROVISIONS
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There is no "vacancy" within the meaning of the Federal Vacancies
Reform Act of 1998 when a presidentially appointed, Senate-confirmed officer continues
to hold a position under a statutory holdover provision and therefore the holdover
service is not reportable under the Act.
July 30, 1999
TESTIMONY CONCERNING THE FEDERALISM
ACCOUNTABILITY ACT
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Provisions of the proposed Federalism
Accountability Act that would alter the rules under which courts determine whether
Congress has preempted state law by statute or authorized preemption by regulation
could have far reaching and unintended consequences and should only be enacted
if Congress determines that existing preemption doctrine has systematically frustrated
congressional intent and that statutory rules of construction would produce better
results.
Provisions of the bill that would instruct courts
to resolve ambiguities in federal law in favor of preserving the authority of
the states could frustrate the intentions of Congress and rulemaking agencies
and should not be enacted.
July 14, 1999
AUTHORITY OF THE UNITED STATES
TO ENTER SETTLEMENTS LIMITING THE FUTURE EXERCISE OF EXECUTIVE BRANCH DISCRETION
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Attorney General may enter into settlements
that would limit the future exercise of executive branch discretion when that
discretion has been conferred upon the executive branch pursuant to statute and
there exists no independent statutory limitation on the authority of the executive
branch to so limit the future exercise of that discretion.
The
Attorney General's power to enter into settlements that would limit the future
exercise of discretion that has been conferred upon the executive branch directly
by the Constitution is constrained by the very constitutional provisions that
vest discretionary authority in the President and therefore necessarily preclude
the President from subjecting the exercise of that discretion to the control of
the other party to a settlement or to judicial enforcement.
Article
III of the Constitution does not preclude the executive branch from entering into
judicially enforceable discretion limiting settlements as a general matter or
bar federal courts from entering consent decrees that limit executive branch discretion
whenever such decrees purport to provide broader relief than a court could have
awarded pursuant to an ordinary injunction. Article III limitations may arise,
however, when, for example, the terms of the governmental promise are too amorphous
to be susceptible to Article III federal judicial enforcement.
Although
there may be sound policy reasons to reaffirm Attorney General Meese's 1986 policy
regulating the use of discretion limiting settlements, the concerns that led to
its adoption do not, in general, amount to legally binding limitations on the
scope of the executive branch's power to settle litigation in a manner that may
limit the future exercise of executive branch discretion.
June 15, 1999
TERM OF A MEMBER OF THE MISSISSIPPI
RIVER COMMISSION
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The term of a member of the Mississippi
River Commission is set by the statute governing his office, and the term dictated
by the statute applies even though the language of his nomination, confirmation,
and commission calls for a different term.
May 27, 1999
ACCESSIBILITY GUIDELINES AND FEDERAL
LEASE RENEWALS
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The
Architectural and Transportation Barriers Compliance Board may require, pursuant
to the Architectural Barriers Act of 1968, that buildings first leased by federal
agencies after 1976 be brought into compliance with current accessibility standards
when the agency negotiates renewal of the lease.
May 26, 1999
USMS OBLIGATION TO TAKE STEPS TO
AVOID ANTICIPATED APPROPRIATIONS DEFICIENCY
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Under the apportionment provisions of the Antideficiency Act,
the United States Marshals Service has an affirmative obligation to take steps
to avoid a deficiency in its Federal Prisoner Detention budget and any drastic
curtailment of its prisoner detention services by reducing current expenditures
and/or exploring alternative sources of funding that would not depend upon the
receipt of additional funds from Congress.
May 11, 1999
ACCESSIBILITY GUIDELINES AND FEDERAL
LEASE RENEWALS
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The
Architectural and Transportation Barriers Compliance Board may require, pursuant
to the Architectural Barriers Act of 1968, that buildings first leased by federal
agencies after 1976 be brought into compliance with current accessibility standards
when the agency negotiates renewal of the lease.
May 26, 1999
WHETHER AND UNDER WHAT CIRCUMSTANCES
GOVERNMENT REPRODUCTION OF COPYRIGHTED MATERIALS IS A NONINFRINGING "FAIR USE"
UNDER SECTION 107 OF THE COPYRIGHT ACT OF 1976
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Although government reproduction of copyrighted material for
governmental use would in many contexts be a noninfringing fair use under section
107 of the Copyright Act of 1976, such government reproduction of copyrighted
material does not invariably qualify as a "fair use."
An agency that decides
to negotiate a photocopying license should seek to limit the scope of the licensing
agreement so as not to cover those photocopying practices that the agency, in
good faith, concludes are not infringing.
In order to determine whether
a particular government photocopying practice is a "fair use," the ultimate question
to be answered is whether permitting the government to continue to engage in the
practice without paying a licensing fee would stimulate productive thought and
public instruction, or yield other societal benefits, without excessively diminishing
the incentives for creativity.
April 30, 1999
APPLICABILITY OF TRADE SECRETS
ACT TO INTRAGOVERNMENTAL EXCHANGE OF REGULATORY INFORMATION
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The disclosure to certain federal financial regulatory agencies
of propriety information of the Office of Federal Housing Enterprise Oversight
obtained from the finance institutions it regulates would be "authorized by law"
within the meaning of the Trade Secrets Act and therefore would not violate that
Act's prohibitions against unauthorized agency disclosures of trade secrets or
other confidential business information.
April 5, 1999
GUIDANCE ON APPLICATION OF FEDERAL
VACANCIES REFORM ACT OF 1998
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This memorandum provides guidance on the application of the Federal Vacancies Reform Act of 1998 to vacancies in Senate-confirmed offices within the executive branch.
March 22, 1999
GULF WAR VETERANS HEALTH STATUTES
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Section 1604 of the Persian Gulf
War Veterans Act of 1998 is constitutionally invalid and ineffective insofar as
it purports to nullify prospectively certain described legislation that might
be enacted in the future.
Overlapping provisions of the Veterans
Programs Enhancement Act of 1998 and the Persian Gulf War Veterans Act of 1998,
although redundant and burdensome in some respects if both statutes are given
effect, are not inherently conflicting or mutually exclusive, and therefore the
provisions of both laws must be treated as valid and effective.
March 12, 1999
ATTORNEY'S
FEES FOR LEGAL SERVICE PERFORMED PRIOR TO FEDERAL EMPLOYMENT
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18
U.S.C. § 205 prohibits a Civil Division attorney from receiving attorney's fees
for work in a case against the United States performed prior to federal employment
when the right to payment depends on a finding of liability and award against
the United States that takes place after the attorney's entry into federal employment.
February 11, 1999
APPLICABILITY OF 18 U.S.C. § 208 TO NATIONAL GAMBLING IMPACT STUDY COMMISSION
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The National Gambling Impact Study
Commission is not an "independent" agency for purposes of a criminal conflict
of interest statute, 18 U.S.C. § 208.
January 26, 1999
APPLICATION OF 18 U.S.C. § 205
TO EMPLOYEES SERVING ON AN INTERGOVERNMENTAL PERSONNEL ACT ASSIGNMENT
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A
federal employee assigned to a state or local government or other non-federal
entity under the Intergovernmental Personnel Act is not prohibited by 18 U.S.C.
§ 205 from representing the interest of the non-federal entity before the federal
government, including the employee's agency, if such representational activity
is affirmatively included with the scope of the employee's assignment as determined
by the federal agency head.
January 11, 1999
APPLICABILITY OF 18 U.S.C. § 1721
TO COLLECTION OF FEE FOR STAMPED CARDS
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The Postal Service may charge a fee for stamped cards in addition
to the face value of the postage without violating 18 U.S.C. § 1721.
January 07, 1999