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# Opinions

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## The Equal Employment Opportunity Commission’s Use of the Collateral Source Rule in Federal Sector Discrimination Cases

**Date of Issuance: **

August 12, 2024

When the Equal Employment Opportunity Commission awards past pecuniary damages against a federal agency pursuant to 42 U.S.C. § 2000e-16(b), it may apply the collateral source rule to decline to deduct insurance benefits that a claimant received through the Federal Employees Health Benefits program.

## Applicability of the Federal Credit Reform Act to Political Risk Insurance of Debt Issued by the United States International Development Finance Corporation

**Date of Issuance: **

May 29, 2024

The organic statute of the United States International Development Finance Corporation does not impliedly exempt DFC’s political risk insurance of debt from the budgeting and accounting rules imposed by the Federal Credit Reform Act of 1990.

## Questions Related to the Potential Rescheduling of Marijuana

**Date of Issuance: **

April 11, 2024

The approach that the Drug Enforcement Administration currently uses to determine whether a drug has a “currently accepted medical use in treatment in the United States” under the Controlled Substances Act is impermissibly narrow. An alternative, two-part inquiry proposed by the Department of Health and Human Services is sufficient to establish that a drug has a “currently accepted medical use” even if the drug would not satisfy DEA’s current approach.

Under 21 U.S.C. § 811(b), a recommendation by HHS that a drug has or lacks a “currently acceptable medical use” does not bind DEA. In contrast, the scientific and medical determinations that underlie HHS’s “currently acceptable medical use” recommendation are binding on DEA, but only until the initiation of formal rulemaking proceedings to schedule a drug. Once DEA initiates a formal rulemaking, HHS’s determinations no longer bind DEA, but DEA must continue to accord HHS’s scientific and medical determinations significant deference, and the CSA does not allow DEA to undertake a *de novo*assessment of HHS’s findings at any point in the process.

Neither the Single Convention on Narcotic Drugs nor the CSA requires marijuana to be placed into Schedule I or II of the CSA. Both the Single Convention and the CSA allow DEA to satisfy the United States’ international obligations by supplementing scheduling decisions with regulatory action, at least in circumstances where there is a modest gap between the Convention’s requirements and the specific restrictions that follow from a drug’s placement on a particular schedule. As a result, DEA may satisfy the United States’ Single Convention obligations by placing marijuana in Schedule III while imposing additional restrictions pursuant to the CSA’s regulatory authorities.

## Whether the United States Postal Service Bears Responsibility for the Cost of Certain Civil Service Retirement Benefits Paid to Its Employees

**Date of Issuance: **

March 26, 2024

The United States Postal Service is responsible for the full cost of retirement benefits owed to its employees under the Civil Service Retirement System attributable to pay increases that USPS granted on and after the date it was established, including with respect to increases in benefits accrued during those employees’ years of service at USPS’s predecessor, the Post Office Department.

## Application of the Statutory Pay Cap on Administratively Determined Pay in 5 U.S.C. § 5373 to the National Science Foundation

**Date of Issuance: **

November 29, 2023

The statutory pay cap on administratively determined pay in 5 U.S.C. § 5373 applies to the salaries that the National Science Foundation Director fixes under 42 U.S.C. § 1873(a)(1). Because some NSF employees are currently receiving salaries above section 5373’s cap, NSF must promptly take steps to come into compliance with the pay cap. NSF lacks the authority to continue to pay salaries above the cap for the purpose of mitigating the effect that implementing the cap will have on its employees.

## Retaining Private Counsel to Represent the DHS Secretary in Impeachment Processes

**Date of Issuance: **

January 4, 2023

The Department of Homeland Security may retain private counsel to assist the Department in representing itself and the Secretary in impeachment proceedings aimed at decisions or actions within the scope of the Secretary’s official duties and unaccompanied by any allegations of personal misconduct.

## Application of the Comstock Act to the Mailing of Prescription Drugs That Can Be Used for Abortions

**Date of Issuance: **

December 23, 2022

Section 1461 of title 18 of the U.S. Code does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully. Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.

## Application of the Anti-Terrorism Act of 1987 to Diplomatic Visit of Palestinian Delegation

**Date of Issuance: **

October 28, 2022

Section 1003(2) of the Anti-Terrorism Act of 1987, which prohibits the expenditure of funds from the Palestine Liberation Organization in the United States to further the PLO’s interests, is unconstitutional to the extent it prevents the exercise of the Presi-dent’s Article II authorities to receive public ministers and to determine the manner in which the Executive engages in diplomacy with foreign representatives. The ATA therefore does not prevent PLO representatives invited by the State Department to Washington, D.C., from spending PLO funds to attend diplomatic meetings with Ex-ecutive Branch officials, including for expenses that are necessary incidents to those meetings.

## Federal Vacancies Reform Act’s Application to a Vacancy for Which Prior Presidents Submitted Multiple Nominations

**Date of Issuance: **

October 21, 2022

Upon the inauguration of a new President, the Federal Vacancies Reform Act restarts the entire timing sequence for acting service in a position that was vacant on inauguration day, authorizing an acting official to serve for up to 300 days after inauguration day, during the pendency of the new President’s first and second nominations for the vacant position, and for 210 days following the rejection, withdrawal, or return of a first or second nomination submitted by the new President.

## Authority of the Department of Defense to Use Appropriations for Travel by Service Members and Dependents to Obtain Abortions

**Date of Issuance: **

October 3, 2022

The Department of Defense may lawfully expend funds to pay for service members and their dependents to travel to obtain abortions that DoD cannot itself perform due to statutory restrictions. DoD may lawfully expend funds to pay for such travel pursuant to both its express statutory authorities and, independently, the necessary expense doctrine.

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