Showing 1011–1020 of 2202

• 5/3/1983

  Applicability of Section 504 of the Rehabilitation Act to Certain Governmental Entities

  Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against qualified handicapped individuals in any program or activity conducted by any "Executive agency." The legislative history of the 1978 Amendments to the Act makes clear that Congress intended § 504 to apply to all "agencies and instrumentalities" in "the Executive branch," including independent regulatory agencies performing functions constitutionally committed to the Executive Branch. The term "Executive agency" as used in § 504 must be construed broadly to include all government entities which are not within either the legislative or judicial branches. All of the entities listed in the memorandum are "Executive agencies" under § 504. These are: the Architectural and Transportation Barriers Compliance Board, the Civil Aeronautics Board, the Commission of Fine Arts, the Federal Deposit Insurance Corporation, the Federal Labor Relations Authority, the Federal Maritime Commission, the National Transportation Safety Board, the National Labor Relations Board, the Railroad Retirement Board, the Securities and Exchange Commission, the Federal Communications Commission, and the Administrative Conference of the United States. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23506/download.

  5/3/1983

• 5/3/1983

  Application of Privacy Act to FBI Domestic Security Guidelines

  9/2/2022

• 4/25/1983

  The President's Authority to Adjust Sugar Quotas

  The President, pursuant to an executive agreement codified in the Tariff Schedules of the United States, Schedule 1, Part 10, Subpart A, Headnote 2, may reduce Nicaragua's share of the annual quota of imported sugar on the basis of foreign policy concerns, if he finds that it is in the best interests of the United States and he gives "due consideration," as defined by law, to Nicaragua's interests in the United States sugar market. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23501/download.

  4/25/1983

• 4/14/1983

  Removal of Members of the Commission on Federal Laws for the Northern Mariana Islands

  The basic presumption underlying the general law on the President's removal authority is that the power to appoint implies the power to remove. Although Congress may alter this presumption by an express indication to limit the President's removal authority, consistent with constitutional requirements, it has not done so in establishing the Commission on Federal Laws for the Northern Mariana Islands. Members of the Commission are appointed by the President. The covenant establishing the Commission and its legislative history indicate no intention to restrict Presidential removal power. Accordingly, in the absence of any congressional intent to the contrary, the President has the authority to remove Commission members in his discretion, even though the Commission performs no executive functions and provides services exclusively to the Legislative Branch. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23496/download.

  4/14/1983

• 3/21/1983

  Authority for the Removal of Fugitive Felons Apprehended Under 18 U.S.C. § 1073

  An individual charged with a violation of the Fugitive Felon Act, 18 U.S.C. § 1073, which makes it a federal offense to travel interstate to avoid a state felony prosecution, among other things, may be "prosecuted" only in the federal judicial district in which the original state crime was committed, or from which he fled, and "only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated." Under Rule 40 of the FedeAl Rules of Criminal Procedure, an individual who is charged with a federal offense in one district and is apprehended in another may be brought back before the court in which the federal charges are pending against him. A court's duty to order removal under Rule 40 is not dependent upon a subsequent federal prosecution. The Department of Justice has interpreted the term "prosecution" in the Fugitive Felon Act to include all steps in the federal criminal process after a fugitive has been taken into federal custody, including removal to the district in which the federal charges against him are pending, pursuant to Rule 40. The Department has also determined that the formal approval required by 18 U.S.C. § 1073 may not be given if the federal prosecution is not to be subsequently pursued. Although nothing in the legislative history of the Fugitive Felon Act or relevant case law mandates this interpretation, it is not clear whether a court would require formal written approval before issuing a Rule 40 removal order. Federal removal under Rule 40 has been upheld against a Fugitive Felon Act defendant's claim that he was constitutionally entitled to extradition under state law. However, the Fugitive Felon Act was not intended to supplant state extradition procedures, and federal removal procedures should not be used to accomplish a Fugitive Felon Act defendant's return for prosecution or other appropriate disposition by the State. The policy considerations involved in making such a determination underscore the wisdom o f the Department's requirement for formal approval for Rule 40 removal of Fugitive Felon Act defendants. The cost of transporting a Fugitive Felon Act defendant pursuant to a court order under Rule 40 may be paid out of funds appropriated for the authorized activities of the United States Marshal. All or part of the cost of transportation may voluntarily be borne by the State seeking the fugitive's return, although any monies received from a State must be deposited into the general fund of the Treasury. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23491/download.

  3/21/1983

• 3/18/1983

  Special Deputations of Private Citizens Providing Security to a Former Cabinet Member

  The United States Marshals Service may not grant special deputy status to private citizens hired by a former cabinet member. By regulation, the Director of the Service may confer such status only upon selected federal officers or employees or state and local law enforcement officers. Although the Attorney General may deputize private citizens, such appointments must further federal law enforcement functions within the authority of the Marshals Service. 28 U.S.C. § 569(c). A federal law enforcement function sufficient to justify the appointment of special deputy marshals should be determined by the Marshals Service in the first instance, on the facts of each case in light of a number of different factors. In this case, no sufficient federal law enforcement function exists to permit the Attorney General to deputize these private security personnel. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23486/download.

  3/18/1983

• 3/13/1983

  Litigation Authority of the Equal Employment Opportunity Commission in Title VII Suits Against State and Local Governmental Entities

  In general, the Attorney General has plenary authority over the supervision and conduct of litigation to which the United States is a party. Courts have narrowly construed statutory grants of litigation authority to agencies to permit the exercise of such power only when the authorizing statutes are sufficiently clear and specific to ensure that Congress intended an exception to the general rule. The litigation authority of the Equal Employment Opportunity Corporation (EEOC) is limited by statute to suits brought on behalf of private sector employees. 42 U.S.C. §§ 2000e-4 to 2000e-6. Furthermore, litigation authority for Title VII "pattern or practice" suits against State and local government entities is specifically vested in the Attorney General. To permit the EEOC, an executive agency subject to the authority of the President, to represent on its own behalf a position in court independent of or contrary to the position of the United States, would be inconsistent with the constitutional principle of the unitary executive. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23481/download.

  3/13/1983

• 3/11/1983

  Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality

  An Assistant United States Attorney (AUSA), a federal employee in the "excepted" service, may not be terminated solely on the basis of his homosexuality, in the absence of a reasonable showing that his homosexuality has adversely affected his job performance. The burden would be on the Department of Justice to demonstrate a nexus between the AUSA's homosexuality and an adverse effect on his job performance. In this case, it is doubtful whether the Department could meet its burden, because the AUSA has consistently received superior ratings and has been granted a security clearance. Although it may be argued that a prosecutor who violates a state criminal law prohibiting homosexual acts demonstrates a disrespect for the law inconsistent with the Department's standard of prosecutorial conduct, the Department would have difficulty establishing the required nexus as a matter of law, because the state law is only enforced against public conduct. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23476/download.

  3/11/1983

• 3/4/1983

  Agency Rules as Constraints on the Exercise of an Agency's Statutory Discretion

  When an agency exercises discretion vested in it by statute by issuing a rule, the rule assumes the force and effect of law, and must be followed by the agency until it is amended or revoked. This principle applies notwithstanding an amendment to the authorizing statute affording greater discretion to the agency than is reflected in the existing rule. When a statute grants discretion to an agency, the agency is usually free to exercise that discretion on a case-by-case basis, rather than through the adoption of general rules, unless either the statute itself or the requirements of due process make the adoption of general rules mandatory. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/file/23471/download.

  3/4/1983

• 2/28/1983

  Appointment of Member of President's Family to Presidental Advisory Committee on Private Sector Activities

  This memo addresses whether a member of President Reagan's family can serve on a presidential advisory committee, and attaches past OLC opinions dealing with similar proposed appointments. The memo reiterates the conclusion of those prior opinions that the president cannot appoint a relative as an active member of an advisory committee. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at https://justice.gov/olc/page/file/1009466/download.

  2/28/1983