IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10712
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellee,
versus
EXXON CORPORATION,
Defendant-Appellee,
versus
UNITED STATES DEPARTMENT OF
JUSTICE,
Appellant.
Appeal from the United States District Court
For the Northern District of Texas
January 28, 2000
Before HIGGINBOTHAM and SMITH, Circuit Judges, and DUPLANTIER,
District Judge.*
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Today we decide whether the Ethics in Government Act permits
two former government attorneys to act as fact or expert witnesses
for a private party in a suit brought by the government. On
interlocutory appeal, we affirm the district court’s holding that
the attorneys may testify in both capacities and may be compensated
for expert testimony. We also conclude that their testimony need
not be disallowed under the District of Columbia’s Bar rules.
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
I
The EEOC alleges that Exxon’s substance abuse policy, which
permanently bars employees who have undergone substance abuse
treatment from holding certain safety-sensitive positions, violates
the Americans with Disabilities Act. Two of Exxon’s defenses are
relevant to this appeal. Exxon asserts the suit is improper
because the government required the policy as a condition of
settling criminal charges arising out of the 1989 Valdez oil spill.
That earlier suit involved charges that Exxon’s failure to monitor
an employee’s alcoholism had contributed to the accident. Exxon
also contends that given this history, the ADA does not require it
to accommodate employees with a history of substance abuse
treatment in the designated positions.
To support these defenses, Exxon hired two former government
attorneys to act as fact and expert witnesses. The attorneys,
Richard Stewart and Stuart Gerson, were senior Department of
Justice officials involved in the prosecution and settlement of the
Valdez matter. In their expert witness disclosures, Stewart and
Gerson proposed to testify about the events leading up to Exxon’s
settlement with the government, as well as the potential legal
consequences to Exxon if it abandoned its substance abuse policy
and another accident occurred. Gerson, who worked on ADA issues
during his government tenure, additionally proposed to testify
about Exxon’s duty to reasonably accommodate the plaintiffs under
the statute.
2
The Department of Justice advised Stewart and Gerson that they
could not testify under the Ethics in Government Act (“EIGA”), and
they conditionally withdrew. Exxon filed a motion to allow their
testimony. The magistrate judge recommended that the district
court hold that Gerson and Stewart did not fall under the
prohibitions of the EIGA and alternatively that even if they did,
a court order permitting the testimony should issue as long as the
testimony was limited to publicly-known information. The district
court adopted that recommendation, and the Justice Department
appealed as a non-party.
II
We first must decide whether we have jurisdiction of this
interlocutory appeal under the collateral order doctrine. The
collateral order doctrine is applicable where (1) the order
conclusively determines the disputed question; (2) the issue is
important and separate from the merits of the case; and (3) the
order is effectively unreviewable on appeal from final judgment.
See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 144-45 (1993).
We agree that this case satisfies the requisite elements for
collateral order jurisdiction. The determination as to Gerson’s
and Stewart’s eligibility as experts is conclusive and collateral
to the merits of the underlying litigation. DOJ may be unable to
appeal the order if EEOC ultimately prevails on the merits.
3
III
The Ethics in Government Act permanently bars former Executive
branch employees from making certain communications to a court or
agency:
on behalf of any other person (except the United States
or the District of Columbia) in connection with a
particular matter --
(A) in which the United States or the District of
Columbia is a party or has a direct and substantial
interest. . . .
18 U.S.C. § 207(a) (1999). Exxon argues that the statute is
inapplicable because the events surrounding the Valdez litigation
and the current ADA suit are not the same “particular matter.” The
statute defines “particular matter” as including:
any investigation, application, request for a ruling or
determination, rulemaking, contract, controversy, claim,
charge, accusation, arrest, or judicial or other
proceeding.
§ 207(i)(3). The Seventh Circuit has articulated a standard which
requires the same specific parties, subject matter, and
“substantially” overlapping facts. See United States v. Medico
Indus., Inc., 784 F.2d 840, 843 (7th Cir. 1986).
While there are many differences between the Valdez litigation
as a whole and the current case, we find it more appropriate to
compare the narrower issue of the Valdez settlement with this suit.
Only the government’s requirements for settlement, not the entire
litigation, are relevant to Exxon’s defenses here. The Valdez
settlement and this suit do satisfy the statutory requirements.
The settlement is a “contract,” a term included in the statutory
definition. Both matters involve the federal government and Exxon,
4
and each deals with Exxon’s substance abuse policy. Gerson’s and
Stewart’s testimony would have little value if the facts were not
substantially overlapping.
That the two events qualify as the same matter, however, does
not end our inquiry. To the extent the witnesses will testify as
to facts and opinions regarding the Valdez settlement, the EIGA
does not prohibit their conduct. The statute specifically creates
an exception to § 207(a)(1) for testimony under oath. See
§ 207(j)(6). The government concedes that this testimony is not
barred by the EIGA.
Some of the proposed testimony -- regarding Exxon’s potential
future liability and the ADA -- would properly be characterized as
expert testimony. This testimony is subject to the lifetime ban of
§ 207(a)(1). Section 207(j) provides that the exception for
testimony does not extend to serving as an expert witness. See
§ 207(j)(6)(A). The legislative history indicates that Congress
specifically sought to include expert witnesses in the bar of
§ 207(a). See SEN. REP. NO. 95-170, at 48 (1978), reprinted in 1978
U.S.C.C.A.N. 4217, 4264.
The statute allows a former employee covered by § 207(a)(1) to
serve as an expert witness only pursuant to court order. See
§ 207(j)(6). The statute is silent as to when an order may issue,
but regulations issued by the Office of Government Ethics under the
pre-1988 version of the EIGA provide some guidance.2 The
2
The OGE has not adopted formal regulations for the relevant
provision of the amended statute. 5 C.F.R. § 2637 note. Because
we conclude that the expert testimony at issue is not prohibited
5
regulations carve out two exceptions allowing a former employee to
testify as an expert. The first, relied upon by the district
court, provides that the employee may serve as expert:
(1) To the extent that the former employee may testify
from personal knowledge as to occurrences which are
relevant to the issues in the proceeding, including those
in which the former Government employee participated,
utilizing his or her expertise. . . .
5 C.F.R. § 2637.209(1) (1992). Gerson’s and Stewart’s testimony
fits this exception. Their expert testimony flows from their
participation in the Valdez settlement and other matters handled
during their government employment.
The Justice Department argues that even if the exception
applies, it does not permit paid expert testimony. The Department
cites an informal advisory letter from the OGE, which states that
“compensated expert testimony” is not permitted under the
exception. Off. Gov’t Ethics Ltr., 1989 WL 253555, at *4 (Dec. 21,
1989). The letter suggests that compensation would be permissible
only for witnesses fitting the second exception, 5 C.F.R.
§ 2637.209(2), which permits an employee to serve as an expert when
no other expert can be obtained. See id.
An advisory opinion is entitled to deference if it is
reasonable and harmonizes with the plain language of the statute,
its origin and purposes. See Fort Hood Barbers Ass’n v. Herman,
137 F.3d 302, 307 (5th Cir. 1998) (regarding interpretive
regulation). The OGE, however, offers no statutory authority or
under the OGE regulations, we need not decide whether those
regulations have any legal force.
6
explanation for its view. While there might be some appeal to a
rule that limits compensation to “emergency” experts, we can find
no support in the statute to create a category of unpaid experts.
The federal bribery statute cited by the Justice Department, 18
U.S.C. § 201, clearly characterizes “expert witnesses” as those who
may be compensated for their time:
[This provision] shall not be construed to prohibit . .
. the payment, by the party upon whose behalf a witness
is called and receipt by a witness, of the reasonable
cost of travel and subsistence incurred and the
reasonable value of time lost in attendance at any such
trial, hearing, or proceeding, or in the case of expert
witnesses, a reasonable fee for time spent in the
preparation of such opinion, and in appearing and
testifying.
18 U.S.C. § 201(d) (1999). The statute confirms the ordinary
understanding of how the two categories of witnesses may be
compensated. We find the OGE’s announcement contrary to the plain
meaning of “expert”.
We also are not convinced by the Justice Department’s claims
that every former government employee will be able to receive
compensation through the exception. While some witnesses do
testify both as fact and expert witnesses, the evidentiary rules
requiring qualification as an expert will ensure that only those
with special knowledge will be so designated. See FED. R. EVID. 702
(1999). Similarly, the normal evidentiary channels will allow the
government to assert any claims of privilege.3
3
We do not decide whether the Justice Department’s Touhy
regulations, 28 C.F.R. § 16.21, were applicable to this matter.
Contrary to counsel’s assertions at oral argument, that issue was
not properly briefed to this court.
7
IV
The Justice Department also urges that we disallow the
testimony under the District of Columbia’s Bar Rule 1.11(a), which
prevents a lawyer from accepting other employment in connection
with a matter substantially related to one in which the lawyer
participated as a government employee.
We have held that issues regarding disqualification of counsel
are informed not only by the local ethical rules, but also by
ethical rules announced by the national legal profession in light
of the public interest and the litigants’ rights. See In re
American Airlines, 972 F.2d 605, 609-10 (5th Cir. 1992) (citing In
re Dresser Airlines, 972 F.2d 540, 543-44 (5th Cir. 1992)). Those
same sources logically should be consulted in determining the
propriety of testimony. Here, the relevant rules include the ABA
Model Rules, the Texas rules because of the venue of the suit, and
the rules of the District of Columbia, where Gerson and Stewart are
members of the Bar.
Upon reviewing the applicable ABA guidelines and the Texas
and District of Columbia rules, we conclude that the district court
did not abuse its discretion in allowing the testimony. Both ABA
Model Rule 1.9 and the corresponding Texas rule, 1.09(a), forbid an
attorney from successive representation, a prohibition against
acting as a lawyer for a client. ABA MODEL R. 1.9; TEX. BAR R.
1.09(a) (1999). Gerson and Stewart have not violated that
prohibition.
8
The D.C. Rule’s broader “employment” language suggests that
serving as an expert witness might also be disallowed. D.C. BAR R.
1.11(a) (1999). No District of Columbia court has so applied the
rule, however, and such an application would conflict with the EIGA
and various other rules, including those of the District of
Columbia. As we have seen, the EIGA allows fact and expert
witnesses under certain circumstances. The ABA Model Rules and the
corresponding state rules all permit a lawyer to use information
that has become publicly known. See ABA MODEL R. 1.9(C)(1); TEX. BAR
R. 1.05(b)(3); D.C. BAR R. 1.6 cmt. 8. These rules suggest that the
sharing of public information in itself does not present an ethical
bar.
Given the distinction in the ethical rules between testimony
and representation, we decline to apply Rule 1.11(a) so as to bar
the witness testimony. The Bar rule is intended to be less
prophylactic than the EIGA: rather than a blanket prohibition
designed to avoid even the appearance of impropriety, the rule
precludes successive employment only where there is established or
likely corruption of the litigation. See Brown v. District of
Columbia Bd. of Zoning Adjustment, 486 A.2d 37, 46-48 (D.C. App.
1984) (construing predecessor rule to 1.11(a)). Such danger
appears minimal here given the contours of Gerson’s and Stewart’s
participation in the lawsuit.
We conclude that the general prohibition of 18 U.S.C. §
207(a)(1) applies to Gerson and Stewart insofar as their services
are those of expert witnesses, but that the district court did not
9
err in issuing an order permitting the testimony under § 207(j)(6).
We also hold that local ethical rules do not bar the testimony as
limited by the district court.
AFFIRMED.
10