18 U.S.C. § 207 and the Government of Guam
18 U.S.C. § 207(a)(1) prohibits a form er Department of the Navy employee from representing the
Governm ent o f Guam before the Federal Maritime Commission in a litigation in which he partici
pated personally and substantially while employed by the Navy.
September 12, 1996
M e m o r a n d u m O p in io n f o r t h e D ir e c t o r
O f f ic e o f G o v e r n m e n t E t h ic s
Y o u have asked for our opinion whether 18 U.S.C. § 207(a)(1) bars a former
employee from representing the Government of Guam in a litigation in which
he participated personally and substantially while employed by the Department
of the Navy. See Letter for Walter Dellinger, Assistant Attorney General, Office
of Legal Counsel, from Stephen D. Potts, Director, Office of Government Ethics
(June 25, 1996) (“ Potts Letter” )- We conclude that the statute forbids the rep
resentation. 1
While an attorney with the Navy’s Military Sealift Command (“ MSC” ), the
former employee represented the MSC in a case before the Federal Maritime Com
mission (“ FMC” ), Government o f Guam v. Sea-Land Service, Inc., Docket No.
89-26. He has now joined the law firm representing the Government of Guam
in the case. He wishes to appear on behalf of Guam before the FMC and in any
subsequent judicial review proceedings.
Section 207(a)(1) provides:
Any person who is an officer or employee . . . of the executive
branch of the United States . . ., or of the District of Columbia,
and who, after the termination of his or her service or employment
with the United States or the District of Columbia, knowingly
makes, with the intent to influence, any communication to or ap
pearance before any officer or employee of any department, agency,
court, or court-martial of the United States or the District of Colum
bia, 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 . . . is a party or has a direct and
substantial interest,
1 Section 207(a)(1) covers a former em ployee’s “ communication to or appearance before1' agencies and courts,
made “ w ith the intent to influence." Here, w e use forms o f the word “ represent” as a shorthand, without meaning
to specify the exact scope o f the statute. T here is no dispute in the present case that the former employee would
be engaged in “ co m m u n icatio n ^]” and ” appearance[s]M within the meaning o f the law.
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(B) in which the person participated personally and substantially
as such officer or employee, and
(C) which involved a specific party or specific parties at the time
of such participation,
shall be punished as provided in section 216 of this title.
Here, the former employee, while with the MSC, “ participated personally and
substantially” in the “ particular matter” in question, which involves “ specific
parties.” See Potts Letter at 2. The former employee, however, makes two basic
arguments that the statute does not apply. First, he argues that Guam is not a
“ person” under §207 and that his representation is, therefore, not “ on behalf
of any other person.” See Memorandum for the Director, U.S. Office of Govern
ment Ethics, from Former Employee, Re: Request fo r Advisory Opinion Con
cerning the Application o f 18 U.S.C. § 207(a)(1), at 3 (Feb. 26, 1996). Second,
he argues that his representation is not on behalf of a person “ except the United
States,” because Guam is an instrumentality of the United States. Id. at 3-4. He
maintains, in addition, that his representation would square with the policy of
the statute because Guam and the MSC have no adverse interests in the FMC
proceedings, and he urges the relevance of the principle that criminal statutes must
be strictly construed. Id. at 4-5. These arguments are unpersuasive.
First, although Guam is not a “ person” under some other statutes, see, e.g.,
Ngiraingas v. Sanchez, 495 U.S. 182 (1990) (Guam not a “ person” under 42
U.S.C. § 1983), it is a “ person” under §207. That provision treats even the United
States and the District of Columbia as persons; it applies to representation of “ any
other person (except the United States or the District of Columbia).” It also treats
state and local governments as “ persons” : a one-year “ cooling o f f ’ period for
representation by former high-level officials of “ persons other than the United
States,” 18 U.S.C. § 207(c), (d) & (e), is expressly made inapplicable to represen
tation undertaken by employees of state and local governments, on behalf of those
governments. See id. §207(j)(2)(A). Representation of state or local governments
by former federal employees, therefore, could violate § 207(a)(1), the provision
at issue here. By providing exemptions for work on behalf of the United States,
the District of Columbia, and (in some circumstances) state and local governments,
and by restricting certain other work on behalf of state and local governments,
the statute bespeaks an intent to cover units of government as “ persons.” Cf.
United States v. Smith, 499 U.S. 160, 167 (1991) (quoting Andrus v. G lover
Constr. Co., 446 U.S. 608, 616-17 (1980)) (“ ‘Where Congress explicitly enumer
ates certain exceptions to a general prohibition, additional exceptions are not to
be implied, in the absence of evidence of a contrary legislative intent.’ ” ). Guam
is therefore a “ person” under §207.
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Second, although Guam is an “ instrumentality of the federal government” for
some purposes, see Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1286,
1289 (9th Cir. 1985), cert, denied, 475 U.S. 1081 (1986) (Commerce Clause and
antitrust laws), it is not the “ United States” for purposes of §207. It would be
anomalous for Guam to be an instrumentality of the United States under a statute
that even treats the United States and the District of Columbia as separate entities.
Section 207(a)(1) applies to “ any communication to or appearance before any
officer or employee . . . of the United States or the District of Columbia, on
behalf of any other person (except the United States or the District of Columbia),”
and clarifies that former officials of the United States may communicate to or
appear before officers and employees of the District of Columbia, and vice versa.
18 U.S.C. § 207(a)(3). Thus, the District of Columbia is not covered by the term
“ the United States” in §207, and there is no apparent reason why an unincor
porated territory with its own government, see, e.g., 48 U.S.C. §§1421-1423,
should receive different treatment.
Furthermore, § 207 is aimed, among other things, at preventing former employ
ees of the United States from “ switching sides” in particular matters involving
specific parties, such as litigation. See, e.g., 5 C.F.R. § 2637.101(c)(1) (1996).2
Guam and the United States may now appear separately in litigation and take
opposite sides. As Judge (now Justice) Kennedy explained, “ the executive branch
of the Government of Guam [before 1971] might have been deemed under the
control of the United States” as to litigation, because the Governor was appointed
by the President with the advice and consent of the Senate, but
[o]nce the Governorship of Guam was made an elected office, the
United States relinquished its control over the executive of the Gov
ernment of Guam. The executive branch is responsible now to the
people of Guam. That the Government of Guam is now capable
of acting independently of the United States in deciding whether
to sue the United States is evidenced by the institution of the
present action.
G overnm ent o f Guam v. United States, 744 F.2d 699, 701 (9th Cir. 1984). Given
this possibility of conflict between the United States and Guam and given the
statutory structure, we believe that Guam does not fall within the term “ the United
States” as used in §207.
To be sure, there may be some instances where, even within the executive
branch of the federal government, an employee who leaves one agency and joins
2 H ie statute is also designed to restrict trading on past friendships and associations and prevent the unfair use
o f inside information. 5 C.F.R. §2637.101(c)(2), Roswell B. Perkins, The New Federal Conflict-of-interest Law ,
76 Harv. L. Rev. 1113, 1121 (1963). (The regulation cited, 5 C.F.R. §2637.I01(c), applies only to persons who
left the governm ent before statutory amendments became effective on January 1, 1991, but the earlier regulations
“ remain []persuasive” to the extent the statute has not changed. Office o f Government Ethics, Summary o f Post-
Em ploym ent R estrictions o f 18 U.S.C. §207, at 1 (Nov. 4, 1992).)
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18 U.S.C. § 207 and the Government o f Guam
another might “ switch sides” in some sense, and yet §207 would not apply:
“ A prime example of this is the activities of the Federal Labor Relations Author
ity. It is basically an intra-govemmental regulatory body whose employees some
times come from other agencies having worked on pending matters before the
FLRA or who may wish to leave [the] FLRA for an agency which has a matter
pending at the FLRA in which they are officially involved.” OGE Informal Opin
ion 86x1 (1986). We do not believe, however, that these instances are analogous
to the present case. The employee who transfers from one executive agency to
another remains under the control of the executive branch and subject to its ethics
regulations. As the Office of Government Ethics has noted, “ [t]he FLRA . . .
has been very sensitive to these situations and has used its standards of conduct
to provide guidance for its employees.” Id. Congress has left these conflicts to
be policed by regulations issued by agencies plainly within the United States gov
ernment; it hardly follows that §207 should be construed as inapplicable to an
entity “ capable of acting independently of the United States.” Government o f
Guam, 744 F.2d at 701.
We may assume, as the former employee argues, that the United States and
Guam do not have adverse interests in the action before the FMC and that there
is no “ reasonably probable scenario” for future adversity. See Memorandum from
MSC Designated Agency Ethics Official, Re: Government o f the Territory o f
Guam et al. v. Sea-Land and APL, FMC D ocket No. 8 9 -2 6 (Feb. 23, 1996). But
§207 is a prophylactic statute that is “ intended to prevent even the appearance
of wrongdoing and that may apply to conduct that has caused no actual injury
to the United States.” Crandon v. United States, 494 U.S. 152, 164 (1990) (de
scribing another conflict of interest law, 18 U.S.C. §209). It creates a prohibition
applicable to specified types of circumstances, as listed in the statute, where con
flicts may arise. On its face, the language of § 207 draws no distinction between
matters in which the interests of the person represented by the former employee
coincide with the interests of the United States and those in which the interests
diverge or are adverse. The statute reaches ‘‘any investigation, application, request
for a ruling or determination, rulemaking, contract, controversy, claim, charge,
accusation, arrest, or judicial or other proceeding.” 18 U.S.C. §207(i)(3) (empha
sis added). Thus, “ [a] former employee does not act on behalf of the United
States . . . merely because the United States may share the same objective as
the person whom the former employee is representing.” Office of Government
Ethics, Summary o f Post-Employment Restrictions o f 18 U.S.C. § 2 0 7 , at 4 (Nov.
4, 1992).
Although (under an earlier version of § 207) we found that a former employee
would not be an agent of another person with regard to a contract unless there
was “ an ingredient of at least inchoate adversariness,” Former Officers and Em
ployees— Conflict o f Interest (18 U.S.C. § 2 0 7 ) — Contract— Disqualification
Connected with Form er D uties or Official Responsibilities, 2 Op. O.L.C. 313,
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316 (1978), the justification for this conclusion was that “ [a]side from a contract,
the other listed matters [in the definition of ‘particular matter’] appear to be preg
nant with at least some adversariness (in the sense of urging a point of view)
in all their aspects,” id. See a lso OGE Informal Opinion 80x4 (1980); 5 C.F.R.
§2637.201 (b)(5) (1996). With regard to litigation in which the United States is
a party or has a direct and substantial interest and in which a former employee
represents a participant in the case, it is irrelevant whether the former employee
will be advancing a position aligned with the government’s:
An attorney participated in preparing the Government’s antitrust ac
tion against Z Company. After leaving the Government, she may
not represent Z Company in a private antitrust action brought
against it by X Company on the same facts involved in the Govern
ment action. N or may she represent X Company in that matter.
5 C.F.R. §2637.201 (c)(5), Ex. 1 (emphasis added). That the interests of the United
States and Guam are aligned in the present case does not alter our conclusion
about the applicability of § 207.3
RICHARD L. SHIFFRIN
D eputy A ssistant Attorney General
Office o f Legal Counsel
3 The form er em ployee also relies on the rule o f lenity, under which “ ‘when choice has to be made between
tw o readings o f what conduct Congress has m ade a crim e, it is appropriate, before we choose the harsher alternative,
to require that Congress should have spoken in language that is clear and d efin ite/ ” United States v. Bass, 404
U.S. 336, 347 (1971) (quoting United States v. Universal CJ.T. Credit Corp., 344 U.S. 218, 221-22 (1952)). There
m ay be som e doubt how that rule applies to prospective ethics advice, where the “ need for fair w arning” underlying
the rule is met by the advice itself. See United States v. R.L.C., 503 U.S. 291, 306 n.6 (1992) (plurality opinion);
Liparota v. United States, 471 U.S. 419, 427 (1985); but see R.L.C., 503 U.S. at 309 (Scalia, J., concurring in
part and concurring in the judgment) (rule o f lenity also ‘‘assur[es] that the society, through its representatives,
has genuinely called for the punishment to b e meted o u t” ). In any event, we believe that §207(a) is unambiguous
in its application here and so do not resort to the rule o f lenity for guidance. See Lewis v. United States, 445
U.S. 55, 65 (1980) (the “ touchstone” of the rule o f lenity “ is statutory ambiguity” ).
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