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Personal Satisfaction of Immigration and Nationality Act Oath Requirement: Letter Opinion for the General Counsel, Immigration and Naturalization Service [April 18, 1997]
"You have requested advice concerning whether section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (1994), requires some sort of accommodation for persons who are unable to form the mental intent necessary to take the naturalization oath of allegiance prescribed by section 337 of the Immigration and Nationality Act ('INA'), 8 U.S.C. § 1448 (1994). Memorandum for Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, from David A. Martin, General Counsel, Immigration and Naturalization Service (Feb. 10, 1997). More specifically, your memorandum of February 10 asks us to consider the question whether, in the case of a person who cannot form the requisite intent, the oath requirement might be fulfilled by a guardian or other legal proxy. Id. As we recently advised you, it is our conclusion that the oath requirement of section 337 may not be satisfied by a guardian or legal proxy. This letter briefly sets forth the reasoning underlying that conclusion."
United States. Department of Justice. Office of Legal Counsel
1997-04-18
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Calculating Rate of Pay of Department of Justice Employees for Purposes of 'Covered Persons' Determination Under Independent Counsel Act: Memorandum Opinion for the Acting Deputy Attorney General [April 2, 1997]
"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. Under 28 U.S.C. § 591(b)(4) (1994), the class of 'covered persons' subject to investigation by an Independent Counsel includes 'any individual working in the Department of Justice who is compensated at a rate of pay at or above level III of the Executive Schedule under section 5314 of title 5.' You have asked whether the term 'rate of pay' in this section includes '[l]ocality-based comparability payments' under 5 U.S.C. § 5304 (1994). We conclude that it does not."
United States. Department of Justice. Office of Legal Counsel
1997-04-02
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Applicability of Executive Order No. 12976 to the FDIC: Memorandum for the General Counsel, Office of Management and Budget [April 22, 1997]
"You have asked us to consider whether Executive Order No. 12976, 3 C.F.R. § 412, 'Compensation Practices of Government Corporations' ('EO 12976'), applies to the Federal Deposit Insurance Corporation ('FDIC'). EO 12976 provides that government corporations should not pay bonuses in excess of those authorized by section 4501 through section 4507 of Title 5 of the United States Code. It also directs government corporations to submit certain compensation information to the Office of Management and Budget ('OMB') and requires wholly owned government corporations to refrain from approving bonuses in excess of the statutory bonus ceilings until OMB has had an opportunity to review the information. The FDIC maintains that EO 12976 does not apply to it because it has statutorily vested broad discretion to determine the compensation of its employees and because it is an independent agency. As we explain below, neither of these premises supports the conclusion that EO 12976 is inapplicable to the FDIC. Accordingly, we believe that EO 12976 applies to the FDIC."
United States. Department of Justice. Office of Legal Counsel
1997-04-22
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Obligation to Sell Governors Island, Memorandum Opinion for the Acting General Counsel, General Services Administration [April 24, 2001]
"The statutory requirement that the Administrator of General Services sell Governors Island at fair market value continues to apply notwithstanding the President's subsequent reservation of Governors Island as a national monument under the Antiquities Act."
United States. Department of Justice. Office of Legal Counsel
2001-04-24
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Authority of State Officials to Share Motor Vehicle Record Information with the Department of Defense or Its Contractors, Memorandum Opinion for the Acting General Counsel, Department of Defense [May 24, 2001]
"The Drivers' Privacy Protection Act permits state Department of Motor Vehicles offices to release covered information in motor vehicle records to both the Department of Defense and private entities acting on DoD's behalf, provided that the records are used for a statutorily approved purpose of DoD, such as military recruitment."
United States. Department of Justice. Office of Legal Counsel
2001-05-24
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Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy, Memorandum Opinion for the General Counsel, Federal Emergency Management Agency [September 25, 2002]
"The Stafford Disaster Relief and Emergency Assistance Act of 1974 and its implementing regulations permit FEMA to provide federal disaster assistance for the reconstruction of Seattle Hebrew Academy, a private religious school that was damaged in an earthquake in 2001. The Establishment Clause of the First Amendment does not pose a barrier to the Academy's receipt of such aid."
United States. Department of Justice. Office of Legal Counsel
2002-09-25
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Legal Authority to Approve Changes in use of Property Under Section 414 of the Housing and Urban Development Act of 1969: Memorandum Opinion for the General Counsel, General Services Administration [March 5, 1996]
"The proposed sale of property at its fair market value in order to raise funds to build low and moderate income housing on different property constitutes a change in the use of property under section 414 of the Housing and Urban Development Act of 1969 and the terms of the deed of the 1974 sale of the property. The Department of Housing and Urban Development and the General Services Administration could approve the proposed sale of property to a public body without violating section 414."
United States. Department of Justice. Office of Legal Counsel
1996-03-05
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Transactions Between the Federal Financing Bank and the Department of the Treasury: Memorandum for Edward Knight, General Counsel, Department of the Treasury [February 13, 1996]
"This opinion reviews a possible Federal Financing Bank [FFB] sale of loan assets to the Civil Service Retirement and Disability Fund and other possible related transactions between the FFB and the Department of the Treasury, and concludes that the contemplated transactions would be permissible under existing law."
United States. Department of Justice. Office of Legal Counsel
1996-02-13
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Relationship Between Section 203(d) of the Patriot Act and the Mandatory Disclosure Provision of Section 905(a) of the Patriot Act, Memorandum Opinion for the Assistant Attorney General, Office of Legal Policy [September 17, 2002]
"The sweeping authority to share information set forth in section 203(d) of the Patriot Act has a significant impact on the scope of the mandatory information-sharing obligation set forth in section 905(a) of the Patriot Act. Section 905(a) requires disclosure of foreign intelligence to the Director of Central Intelligence unless disclosure is otherwise prohibited by law. Because of the sweep of section 203(d), however, it is always lawful to disclose information that comes under that section in order to assist a federal official in the performance of his official duties. As a result, the preemptive effect of section 203(d) on all other non-disclosure provisions means that, absent an exception provided for by the Attorney General, foreign intelligence that would assist the Director of Central Intelligence in the performance of his official duties must be disclosed pursuant to section 905(a) because no other applicable law can be said to provide otherwise."
United States. Department of Justice. Office of Legal Counsel
2002-09-17
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Legality of Government Honoraria Ban Following U.S. v. National Treasury Employees Union: Memorandum to the Attorney General [February 26, 1996]
"Last year, the Supreme Court held that § 501(b) of the Ethics in Government Act of 1978 -- which imposes a government-wide ban on the receipt of honoraria by any government employee -- violates the First Amendment. […] This memorandum examines, at the request of the Civil Division, the question what, if any, portion of § 501(b) survives the NTEU [National Treasury Employees Union] decision. As explained more fully below, we conclude that the answer to this question must be 'none.' Following the Supreme Court's invalidation of § 501(b) with respect to the vast majority of the statute's targeted audience, what remains is a very different statute from the one Congress enacted. We cannot know, nor should we speculate, whether Congress would have enacted an honoraria ban as limited in scope as that portion of § 501(b) which the Supreme Court declined to strike down. The special constitutional solicitude accorded First Amendment rights, moreover, cautions against any intrusion upon those rights without the prior reflective judgment of the legislature."
United States. Department of Justice. Office of Legal Counsel
1996-02-26
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Brady Act Implementation Issues: Memorandum Opinion for the General Counsel, Federal Bureau of Investigation [February 13, 1996]
"The Attorney General may impose an expiration date on the validity of a check, conducted pursuant to the Brady Act by the national instant criminal background check system ('NICS'), that authorizes the transfer of a firearm. Information from NICS may be disclosed to law enforcement agencies to further their criminal investigations, but disclosures may not be made for the purpose of establishing firearms registries and non-consensual disclosures may not be made for employment and licensing purposes. The Privacy Act places no restrictions on the Attorney General's express authority under the Brady Act to request information from federal agencies identifying individuals who fall within the categories of persons prohibited from possessing firearms."
United States. Department of Justice. Office of Legal Counsel
1996-02-13
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[Constitutionality of 13 C.F.R. § 124.103 Establishing Citizenship Requirement for Participation in 8(a) Program: Memorandum for Eric S. Benderson, Associate General Counsel, U.S. Small Business Administration, March 4, 1996]
"You have requested our opinion as to the constitutionality of a regulation of the Small Business Administration ('SBA'), 13 C.F.R. § 124.103, that limits eligibility for the SBA's 8(a) program for disadvantaged contractors to businesses owned by U.S. citizens. The SBA has defended the validity of its 8(a) citizenship requirement on the grounds that such a requirement is consistent with congressional intent. We agree with this conclusion, although we do so based upon a different legal analysis than the one relied upon by the SBA."
United States. Department of Justice. Office of Legal Counsel
1996-03-04
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Federal Reserve Board Efforts to Control Access to Buildings and Open Meetings, Memorandum Opinion for the General Counsel for the Board of Governors of the Federal Reserve System [July 9, 2002]
"The Board of Governors of the Federal Reserve System may, consistent with its obligations under the Government in the Sunshine Act, place observers of an open meeting of the Board in a separate room to watch the meeting on closed-circuit television. It is permissible under both the Sunshine Act and the Piracy Act for the Board to require disclosure of personal information and satisfaction of a security check as a condition of entering the Board's buildings for access to the separate room to observe an open meeting."
United States. Department of Justice. Office of Legal Counsel
2002-07-09
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Application of 44 U.S.C. § 1903 to Procurement of Printing of Government Publications, Memorandum Opinion for the Administrator for Federal Procurement Policy, Office of Management and Budget [August 22, 2002]
"44 U.S.C. § 1903 does not prevent executive agencies from using private printers at agency expense to print copies of government publications for their own use while at the same time requisitioning depository copies from the Government Printing Office [GPO] at GPO expense."
United States. Department of Justice. Office of Legal Counsel
2002-08-22
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Whether the District of Columbia's Clean Air Compliance Fee May Be Collected from the Federal Government: Memorandum for Emily C. Hewitt, General Counsel, General Services Administration [January 23, 1996]
"The District of Columbia's Clean Air Compliance Fee is a tax and may not be imposed on the federal government, because the D.C. Council lacks authority to impose taxes on the property of the United States. This memorandum responds to your request for our opinion on whether the District of Columbia ('District') may collect from the General Services Administration the Clean Air Compliance Fee ('Clean Air Fee' or 'Fee') established by a District of Columbia statute, the Clean Air Compliance Fee Act of 1994 ('Act'), D.C. Act 10-387, reprinted in 42 D.C. Reg. 86 (Jan. 6, 1995). As discussed below, we conclude that the District may not collect the Fee with respect to property owned by the United States."
United States. Department of Justice. Office of Legal Counsel
1996-01-23
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Centralizing Border Control Policy Under the Supervision of the Attorney General, Letter Opinion for the Deputy Counsel to the President [March 20, 2002]
"In general, the President may not transfer the functions of an agency statutorily created within one Cabinet department to another Cabinet department without an act of Congress. The President may not delegate his presidential authority to supervise and control the executive departments to a particular member of the Cabinet where no statutory authority exists to do so. The President may exercise his own power to establish a comprehensive border control policy for the federal Government and direct a single Cabinet member to lead and coordinate the efforts of all Cabinet agencies to implement that policy."
United States. Department of Justice. Office of Legal Counsel
2002-03-20
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Role of Legal Guardians or Proxies in Naturalization Proceedings, Memorandum Opinion for the General Counsel, Immigration and Naturalization Service [March 13, 2002]
"You have asked for our opinion whether the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (1994 & Supp. IV 1998), requires the Immigration and Naturalization Service ('INS') as a reasonable accommodation to permit a legal guardian or other proxy to represent a mentally disabled applicant in naturalization proceedings. For the reasons set forth below, we conclude that the Rehabilitation Act does require such accommodation."
United States. Department of Justice. Office of Legal Counsel
2002-03-13
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Application of 18 U.S.C. § 203 to Former Employee's Receipt of Attorney's Fees in Qui Tam Action, Memorandum Opinion for the Deputy General Counsel and Designated Agency Ethics Official, Executive Branch Department [February 28, 2002]
"18 U.S.C. § 203 would not bar a former federal employee from sharing in attorney's fees in a qui tam action, provided that those fees, calculated under the lodestar formula, are prorated such that the former employee does not receive any fees attributable to his time in the government."
United States. Department of Justice. Office of Legal Counsel
2002-02-28
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Application of Consumer Credit Reporting Reform Act of 1996 to Presidential Nomination and Appointment Process: Memorandum Opinion for the Counsel to the President [December 11, 1997]
"The Consumer Credit Reporting Reform Act of 1996 ('CCRRA'), 15 U.S.C.A. § 1681s-2 (West Supp. 1997), offers heightened protections to individuals whose credit histories are being examined by prospective employers. Section 2403(b)(3) of the CCRRA amends section 604 of the Fair Credit Reporting Act ('FCRA') to require any person 'using a consumer report for employment purposes' to notify the consumer prior to taking 'any adverse action based in whole or in part on the report.' Id. You have requested our advice whether section 2403(b)(3) would apply to the process used by the President in considering individuals for nomination and appointment with the advice and consent of the Senate or appointment to his personal staff. As explained briefly below, we conclude that this provision of the CCRRA does not apply to the President's decisions affecting such positions."
United States. Department of Justice. Office of Legal Counsel
1997-12-11
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Authority of the Chemical Safety and Hazard Investigation Board to Delegate Power, Letter Opinion for the U.S. Chemical Safety and Hazard Investigation Board [April 19, 2002]
"Although the Chemical Safety and Hazard Investigation Board may not name an 'Acting Chairperson,' it may delegate administrative and executive authority to a single member while the position of chairperson is vacant."
United States. Department of Justice. Office of Legal Counsel
2002-04-19
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Reappointment of a Retired Judge to the Court of Federal Claims: Memorandum Opinion for Sarah Wilson, Deputy Assistant Attorney General, Office of Policy Development [December 3, 1997]
"This memorandum responds to your request for our opinion concerning whether the President may reappoint to the United States Court of Federal Claims a nominee who has completed a fifteen-year term on that court and is a retired, 'senior judge' as of the time of her nomination and subsequent reappointment. For the reasons set forth below, we conclude that the President may nominate and, with the advice and consent of the Senate, appoint a retired judge to the Court of Federal Claims."
United States. Department of Justice. Office of Legal Counsel
1997-12-03
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Application of Federal Advisory Committee Act to Non-Governmental Consultations, Letter Opinion for the General Counsel, Department of Defense [December 7, 2001]
"The Federal Advisory Committee Act does not apply to the consultations that the Department of Defense plans to conduct with various individuals from outside the government regarding the policies and procedures that DOD is developing for military commissions."
United States. Department of Justice. Office of Legal Counsel
2001-12-07
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Authority of Military Exchanges to Lease General Purpose Office Space: Memorandum for the General Counsels of the Department of Defense and the General Services Administration [August 1, 1997]
"The Navy Exchange Service Command, a nonappropriated 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."
United States. Department of Justice. Office of Legal Counsel
1997-08-01
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Constitutionality of the Rohrabacher Amendment, Memorandum Opinion for the Senior Associate Counsel to the President and National Security Council Legal Adviser [July 25, 2001]
"The Rohrabacher Amendment, which imposes a funding restriction on the Justice Department's ability to litigate matters relating to the Treaty of Peace with Japan, violates established separation of powers principles and, therefore, is unconstitutional."
United States. Department of Justice. Office of Legal Counsel
2001-07-25
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President's Authority to Remove the Chairman of the Consumer Product Safety Commission, Memorandum Opinion for the Counsel to the President [July 31, 2001]
"The Chairman of the Consumer Product Safety Commission serves at the pleasure of the President and the President has the constitutional authority to remove her for any reason."
United States. Department of Justice. Office of Legal Counsel
2001-07-31
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Designation of Acting Associate Attorney General, Memorandum Opinion for the Associate Counsel to the President [August 7, 2001]
"Phil Perry, who has already been designated as the first assistant to the office of the Associate Attorney General by virtue of his appointment as the Principal Deputy Associate Attorney General, may, consistent with the Vacancies Reform Act of 1998, serve as the Acting Associate Attorney General even though he was not the first assistant when the vacancy occurred. Because the President has not designated another person as the Acting Associate Attorney General under the Vacancies Reform Act, Mr. Perry, as the Principal Deputy, is required to perform the functions and duties of the office of the Associate Attorney General in an acting capacity."
United States. Department of Justice. Office of Legal Counsel
2001-08-07
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Indirect Aid to Faith-Based Organizations Under the Charitable Choice Provisions of the Community Solutions Act of 2001, Memorandum Opinion for the Associate Counsel to the President [June 22, 2001]
"The Establishment Clause of the First Amendment does not necessitate that the charitable choice provisions of H.R. 7, the Community Solutions Act, require faith-based organizations receiving indirect payments of federal money to segregate such funds into an account separate from the organizations' general operating accounts."
United States. Department of Justice. Office of Legal Counsel
2001-06-22
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President's Authority to Make a Recess Appointment to the National Labor Relations Board, Memorandum Opinion for the Counsel to the President [August 31, 2001]
"The President may make a recess appointment to the National Labor Relations Board of a person whose term as a Senate-confirmed member expired during the current recess of the Senate."
United States. Department of Justice. Office of Legal Counsel
2001-08-31
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Revocation of Citizenship: Memorandum Opinion for the General Counsel, Immigration and Naturalization Service [March 3, 1997]
"The Immigration and Naturalization Service [INS] 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. The INS has no authority to seek denaturalization if the INS examiner had discretion to find that an applicant was of good moral character, and in fact did exercise that discretion so as to find that the applicant was of good moral character, unless the INS establishes in its complaint by clear, unequivocal, and convincing evidence either that the applicant gave false testimony with the intention of obtaining an immigration benefit or that the examiner's decision resulted from the applicant's willful misrepresentation or concealment of a material fact. The INS may seek denaturalization if the applicant made a false oral statement under oath (regardless of whether the testimony is material) with the subjective intent of obtaining immigration benefits. Alternatively, the INS may seek denaturalization if the applicant procured naturalization by concealment or willful misrepresentation of a material fact. In either case, the INS must prove its complaint by clear, unequivocal, and convincing evidence."
United States. Department of Justice. Office of Legal Counsel
1997-03-03
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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: In Deportation Proceedings [February 21, 1997]
"At the request of the Commissioner of Immigration and Naturalization, the Board of Immigration Appeals ('BIA') referred its decision in this matter pursuant to 8 C.F.R. § 3.1(h)(iii). Respondent Soriano, a native and citizen of the Dominican Republic, was admitted to the United States in 1985 as a lawful permanent resident alien. In 1992, he was convicted under New York law of the offense of an attempted sale of a controlled substance. Based on that conviction, the Immigration and Naturalization Service ('INS') instituted deportation proceedings against him in 1994."
United States. Department of Justice. Office of Legal Counsel
1997-02-21
