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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