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Volume 22 Includes Office of Legal Counsel Opinions That the Department of Justice Has Determined Are Appropriate for Publication

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Volume 22 Includes Office of Legal Counsel Opinions That the Department of Justice Has Determined Are Appropriate for Publication OPINIONS OF THE OFFICE OF LEGAL COUNSEL OF THE UNITED STATES DEPARTMENT OF JUSTICE CONSISTING OF SELECTED MEMORANDUM OPINIONS ADVISING THE PRESIDENT OF THE UNITED STATES, THE ATTORNEY GENERAL AND OTHER EXECUTIVE OFFICERS OF THE FEDERAL GOVERNMENT IN RELATION TO THEIR OFFICIAL DUTIES VOLUM E 22 1998 WASHINGTON 2005 Attorney General Janet Reno Acting Assistant Attorneys General Office o f Legal Counsel Dawn E. Johnsen Randolph D. Moss Deputy Assistant Attorneys General Office o f Legal Counsel Daniel L. Koffsky (Acting) Randolph D. Moss Beth Nolan Todd David Peterson William M. Treanor OFFICE OF LEGAL COUNSEL Attorney-Advisers (1998) David J. Barron Martin S. Lederman Lisa Schultz Bressman Robin A. Lenhardt Paul P. Colbom Herman Marcuse Robert J. Delahunty Rosemary Nidiry Sarah E. Freitas J. Paul Oetken Eric Dodson Greenberg James Orenstein Daniel H. Halberstam Jeffrey P. Singdahlsen Rosemary A. Hart Patricia L. Small Jeffrey P. Kehne George C. Smith Daniel L. Koffsky Karen L. Stevens Caroline D. Krass Ursula Werner FOREWORD The Attorney General has directed the Office of Legal Counsel to publish selected opinions on an annual basis for the convenience of the executive, legisla- tive, and judicial branches of the government, and of the professional bar and the general public. The first twenty-one volumes of opinions published covered the years 1977 through 1997; the present volume covers 1998. Volume 22 includes Office of Legal Counsel opinions that the Department of Justice has determined are appropriate for publication. A substantial number of Office of Legal Counsel opinions issued during 1998 are not included. The authority of the Office of Legal Counsel to render legal opinions is derived from the authority of the Attorney General. Under the Judiciary Act of 1789 the Attorney General was authorized to render opinions on questions of law when requested by the President and the heads of executive departments. This authority is now codified at 28 U.S.C. §§511-513. Pursuant to 28 U.S.C. § 510 the Attorney General has delegated to the Office of Legal Counsel responsibility for preparing the formal opinions of the Attorney General, rendering opinions to the various federal agencies, assisting the Attorney General in the performance of her function as legal adviser to the President, and rendering opinions to the Attorney General and the heads of the various organizational units of the Department of Justice. 28 C.F.R. §0.25. Opinions of the Office of Legal Counsel in Volume 22 Contents Page Application of 18 U.S.C. §203 to Maintenance of Contingent Interest in Expenses Recoverable in Litigation Against the United States (January 28, 1998) ............. 1 Statute of Limitations and Settlement of Equal Credit Opportunity Act Discrimination Claims Against the Department of Agriculture (January 29, 1998) ..................................................................................................................................... 11 Reimbursement of Expenses Under 5 U.S.C. § 5503(a) (February 2, 1998) ................ 29 Applicability of 18 U.S.C. §§431-433 to Limited Partnership Interests in Government Leases (February 17, 1998) ..................................................................... 33 Applicability of 18 U.S.C. § 431 to Limited Partnership Interests in Government Leases (March 13, 1998) .................................................................................................. 41 The Vacancies Act (March 18, 1998) .................................................................................... 44 Interpretation of Inspector General Act (March 20, 1998) ............................................... 50 Application of the Double Jeopardy Clause to Disgorgement Orders Under the Federal Trade Commission Act (April 9, 1998) ......................................................... 56 Possible Bases of Jurisdiction for the Department of Justice to Investigate Matters Relating to the Assassination of Martin Luther King, Jr. (April 20, 1998) ......... 61 Coverage Issues Under the Indian Self-Determination Act (April 22, 1998)............... 65 Authority of Executive Office of the President to Require Independent Agencies to Conduct Background Checks of Noncareer SES Candidates (April 30, 1998) 76 Constitutionality of Proposed Limitations on Tobacco Industry (May 13, 1998)....... 79 Whistleblower Protections for Classified Disclosures (May 20, 1998) ......................... 92 Permissibility Under Posse Comitatus Act of Detail of Defense Department Civilian Employee to the National Infrastructure Protection Center (May 26, 1998)....... 103 Appointment of Vice Chair of Federal Reserve Board to Serve Concurrently as Chair of the District of Columbia Financial Responsibility and Management Assistance Authority (June 1, 1998) ............................................................................. 109 Access to Criminal History Records by Non-Governmental Entities Performing Authorized Criminal Justice Functions (June 12, 1998) ........................................... 119 Waiver of Statutes of Limitations in Connection with Claims Against the Department o f Agriculture (June 18, 1998) ................................................................. 127 Appropriate Source for Payment of Judgments and Settlements in United States v. Winstar Corp. (July 22, 1998) .................................................................................... 141 Constitutional Concerns Raised by the Collections of Information Antipiracy Act (July 28, 1998) .................................................................................................................... 166 Ineligibility of New Jersey Transit Corporation Board Member for Appointment to Amtrak Board of Directors (July 30, 1998) ............................................................ 194 Application of 18 U.S.C. § 208 to Service by Federal Officials on the District of Columbia Downtown Business Improvement District Corporation Board of Directors (August 7, 1998) .............................................................................................. 198 Construction of State Reporting Requirements in Section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act (August 18, 1998) .... 204 vii Application of 18 U.S.C. § 208 to Service by Executive Branch Employees on Boards of Standard-Setting Organizations (August 24, 1998)................................ 210 Authority of the D.C. Council Under the Home Rule Act to Amend the Schedule o f Heights of Buildings (August 28, 1998) .................................................................. 213 Official Service by State Department Employees on the Boards of American- Sponsored Schools Overseas (September 11, 1998) .................................................. 220 Disclosure to the Government, During the Guilt Phase of a Tnal, of the Results of a Court-Ordered Mental Examination (September 21, 1998)............................. 222 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 (September 24, 1998) ........................................... 236 The Authonty of the Bureau of the Census to Adjust Population Data for Purposes O ther Than Apportionment (October 7, 1 9 9 8 )............................................................ 239 Presidential Determination Allowing Financial Assistance to Tibet (November 6, 1998) ...................................................................................................................................... 244 Miscellaneous Receipts Act Exception for Veterans’ Health Care Recoveries (December 3, 1998) ........................................................................................................... 251 Proposed Settlement of Diamond v. Department of Health & Human Services (Decem ber 4, 1998) ........................................................................................................... 257 viii OPINIONS O F THE OFFICE OF LEGAL COUNSEL ix Application of 18 U.S.C. § 203 to Maintenance of Contingent Interest in Expenses Recoverable in Litigation Against the United States 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 M emorandum Opinion for the Counsel to the President This memorandum responds to your request for our opinion whether 18 U.S.C. §203 prohibits a prospective government officer from maintaining a contingent interest in expenses recoverable in litigation involving the United States.* For the reasons set forth below, we conclude that § 203 would not prohibit the prospec- tive officer from maintaining such an interest upon his entry into government service. I. Background The prospective officer’s law firm represents plaintiffs on a contingency basis in a product liability suit against a corporation that petitioned for bankruptcy in May 1995, and the firm has continued to represent its clients in the bankruptcy proceeding. The law firm has advanced certain litigation expenses on behalf of its clients, making payments to cover, among other things, court costs, costs of medical examinations, telephone and facsimile charges, and deposition reporting costs. If the law firm’s clients secure damages against the corporation, the firm will deduct these expenses from the award and receive a percentage
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