United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 1999 Decided February 8, 2000
No. 99-5147
Jeffrey Van Ee,
Appellant
v.
Environmental Protection Agency and
U.S. Office of Government Ethics,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 95cv02079)
John A. Flyger argued the cause for appellant. With him
on the briefs were Arthur B. Spitzer and Cynthia L. Taub.
Seth A. Goldberg entered an appearance.
Peter R. Maier, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
David W. Ogden, Acting Assistant Attorney General, Michael
Jay Singer and Michael E. Robinson, Attorneys, and Wilma
A. Lewis, U.S. Attorney.
Before: Ginsburg, Rogers, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Jeffrey Van Ee, an employee of the
Environmental Protection Agency ("EPA"), appeals the grant
of summary judgment to appellees, EPA and the Office of
Government Ethics ("OGE"). The district court ruled that
Van Ee could not act as a spokesperson for environmental
groups of which he has been a long-time member in connec-
tion with such groups' public comments on draft environmen-
tal impact statements and similar land-use plans issued by
federal agencies other than EPA because doing so would
violate a criminal conflict-of-interest statute, 18 U.S.C. s 205,
under which a federal employee may not act as an agent or
attorney for a private party in any "particular matter" in
which the United States has an interest. See Van Ee v. EPA,
55 F.Supp.2d 1 (D.D.C. 1999). Van Ee contends that EPA
and the district court have read the statute too broadly, and
that if they have not, the statute unconstitutionally infringes
his First Amendment rights of free speech and free associa-
tion. Alternatively, Van Ee contends that even if the statute
constitutionally applies, an OGE regulation requiring federal
government employees to endeavor to avoid the appearance
of violating s 205, 5 C.F.R. s 2635.101(b)(14) (1999), is uncon-
stitutionally vague as applied.
We hold that s 205 is inapplicable to Van Ee's uncompen-
sated communications on behalf of public interest groups in
response to requests by an agency at which he is not em-
ployed for public comment on proposed environmental impact
statements related to land-use plans; these proceedings lack
the particularity required by the statute, will not result in a
direct material benefit to the public interest groups, and do
not create a real conflict of interest or entail an abuse of
position by Van Ee. Accordingly, we do not reach Van Ee's
contentions concerning the First Amendment's application to
s 205 or the appearance regulation, and we reverse the grant
of summary judgment and remand the case for entry of a
declaratory judgment in Van Ee's favor in accordance with
this opinion.
I.
Van Ee is an electrical engineer in the Office of Research
and Development in the Characterization Research Division
of the National Exposure Research Laboratory in Las Vegas,
Nevada. The laboratory is part of EPA. Van Ee is a career
civil service employee, paid at the rate of a grade 13 on the
General Schedule. His work entails monitoring contaminants
in air, water and soil, and recently he has been involved in
developing and using computer software to characterize haz-
ardous waste sites.
For more than twenty-five years, Van Ee has lived in the
Las Vegas area, and during that time he has been an active
volunteer member of various state and local environmental
groups, even serving as an officer of the local chapter of
certain groups.1 The federal government owns more than 85
percent of the land in Nevada, and consequently Van Ee's
volunteer work has included contact with various federal
agencies, including the Bureau of Land Management
("BLM"), the Department of the Interior, the U.S. Forest
Service ("Forest Service"), and the Departments of Energy
and Defense. Until recent years, Van Ee communicated regu-
larly with these agencies regarding wildlife and public lands
issues; none of his communications was related to his respon-
sibilities at EPA.
After EPA had initiated various disciplinary actions against
Van Ee and had issued advisory warnings to him concerning
his representational activities, Van Ee sued EPA and OGE in
1995 in the district court seeking declaratory and injunctive
relief. The complaint alleged that in 1990 EPA reprimanded
Van Ee for participating in a meeting with the BLM, which
focused on a proposed land transfer and the appropriate
__________
1 These include the Southern Nevada Group of the Toiyabe
Chapter of the Sierra Club ("Sierra Club"); Nevada Wildlife Feder-
ation ("NWF"); and the Nevada Outdoor Recreation Association
("NORA") (collectively "the Nevada groups").
treatment of endangered desert tortoises, on the ground that
under 18 U.S.C. s 205 he had impermissibly acted as an
"agent" of the Sierra Club Legal Defense Fund in the meet-
ing. EPA referred the matter to the United States Attor-
ney's Office, which did not prosecute Van Ee. The complaint
further alleged that Van Ee was warned that additional
violations of s 205 could result in disciplinary action, includ-
ing termination of his employment. Thereafter, through
counsel, Van Ee sought guidance from EPA on how he might
continue his volunteer activities without violating s 205.
As is discussed more fully below, s 205 prohibits a federal
employee from acting as the "agent or attorney" of a private
group in relation to a list of proceedings such as an "investi-
gation", "contract", or "other particular matter" in which the
United States has an interest. See 18 U.S.C. s 205(a)(2), (h).
EPA advised Van Ee by letter of May 24, 1994, that he could
not communicate with federal agencies on behalf of any group
in an attempt to influence federal policy with respect to any
"particular matter," which EPA interpreted broadly to in-
clude certain policymaking proceedings such as those in
which Van Ee sought to participate, and further that Van Ee
could not communicate on his own behalf in a way that would
"create the appearance" that he is acting on behalf of another
in such a matter. The complaint asserts that s 205 does not
apply to proceedings in which Van Ee seeks to present the
views of membership organizations in response to agency
requests for public comment on land-use and wildlife conser-
vation proposals. Alternatively, the complaint asserts that
the statute unconstitutionally denies him his First Amend-
ment rights of free speech and association. It also challenges
the OGE regulation as unconstitutionally vague, providing
virtually no standards to which Van Ee can conform without
risking the loss of his job.
After filing his complaint, Van Ee continued to seek guid-
ance from EPA. In 1996 he requested an advisory opinion
from EPA, see 5 C.F.R. s 2635.107(b), as to whether certain
proposed activities and comments he intended to provide on
behalf of the Nevada groups would subject him to disciplinary
action either for violating, or appearing to violate, s 205.2
For example, in response to a proposed environmental impact
statement, see 42 U.S.C. s 4332(2)(C), issued by BLM con-
cerning its plan for managing public lands in southern Neva-
da, Van Ee sought to provide comments on behalf of the
Sierra Club related to mining, endangered species, land ex-
change, recreational use, and wilderness designation and
management. In response to EPA's request for details, Van
Ee elaborated that he considered it likely that some of his
comments would focus on use of specific parcels of land and
on the siting of power lines by two utility companies, as well
as BLM's acquisition of environmentally-sensitive lands in
which a mining company had an interest.
In its response, by letter of April 5, 1996, EPA advised Van
Ee that it would consider his communications to be in relation
to a matter covered by s 205 if the focus were on the
__________
2 Van Ee proposed: (1) to give written and verbal comments on
behalf of the Sierra Club on a BLM environmental impact state-
ment ("EIS") regarding a plan to manage all public lands in
Southern Nevada; (2) to attend meetings with and/or hearings
before BLM and the U.S. Fish and Wildlife Service concerning a
proposed habitat plan for the desert tortoise (including meetings to
which NWF was exclusively invited); (3) to give written and verbal
comments on behalf of NORA or the Sierra Club on the Forest
Service's master plan for the Spring Mountain Recreational Area;
(4) to give written and verbal comments on behalf of NORA on the
"scoping phase" of BLM's EIS for the Red Rock National Conser-
vation Area; (5) to comment on behalf of the Sierra Club on the
Southern Nevada Water Authority's plans to expand the water
system feeding Las Vegas; and (6) to comment for the Sierra Club
on the siting of a BLM-proposed hydroelectric facility. Van Ee also
proposed to request a group camping permit from the Forest
Service for NWF. It is unclear whether this last request remains
at issue because EPA indicated such a request would be permissible
to the extent that approval of the permit was solely ministerial. In
the absence of record evidence that a concrete dispute remains, we
decline to address whether such a permit request would be prohibit-
ed by s 205, and if it were, whether Van Ee's First Amendment
rights would be implicated.
interests of discrete and identifiable persons.3 With respect
to the BLM resource management plan, EPA advised that
although such a plan itself would "probably not focus[] upon
the interests of specific persons, or a discrete and identifiable
class of persons,.... it is possible that an aspect of the Plan
which Mr. Van Ee wants to discuss would [so] focus ... and
thus constitute a 'particular matter.' " With respect to the
other proposed communications, EPA similarly advised Van
Ee that these would violate 18 U.S.C. s 205 because they
would in some way focus on "discrete and identifiable per-
sons" and would therefore relate to a "particular matter"
covered by the statute. EPA indicated, however, that Van
Ee could express his personal views to federal agencies, could
assist the organizations of which he was a member in prepar-
ing their remarks for presentation to federal agencies, and
could even respond to press inquiries about the views ex-
pressed by these organizations. Since receiving this EPA
advice, Van Ee has significantly reduced his volunteer ap-
pearances and communications with federal agencies, and he
is no longer an officer of the Sierra Club.
II.
It is EPA's interpretation of the scope of s 205(a)(2) set
forth in its letter of April 5, 1996, that continues to cause Van
Ee to refrain from engaging in certain communications as a
spokesperson for the Nevada groups and that Van Ee chal-
lenges now. Van Ee sought a broad declaration from the
district court that he had the right to communicate with
federal agencies on behalf of the Nevada groups with respect
to any issue unrelated to his work at EPA, see Van Ee, 55
F.Supp.2d at 4, but the issue before this court is limited to
whether Van Ee may represent the Nevada groups in the
types of administrative settings addressed in EPA's April
__________
3 Noting that no regulations had been promulgated to interpret
s 205, EPA purported to rely for its advice to Van Ee on 5 C.F.R.
s 2635.402(b)(3), an OGE regulation interpreting "particular mat-
ter" as used in 18 U.S.C. s 208, a related conflict-of-interest provi-
sion prohibiting federal employees from participating in matters in
which they have a financial interest.
1996 advisory letter.4 Consequently, the issue on appeal is
whether Congress intended s 205 to prohibit, on penalty of
fine or imprisonment, see 18 U.S.C. s 216, a career federal
employee from presenting the views of citizens' groups of
which the employee is a member, without receiving compen-
sation, in response to requests for public comment on pro-
posed land-use plans issued by federal agencies other than
the employing agency. See supra n.[2]. Interpreting the
scope of matters covered by s 205(a)(2) is an issue of first
impression in this circuit.
EPA implicitly determined in its 1996 advisory opinion that
none of the specific terms in s 205(h) covered the public
comment phase on a federal agency's environmental impact
statement, as required by the National Environmental Policy
Act, 42 U.S.C. s 4332(2)(C) (1994); 40 C.F.R. s 1503.1(4)
(1999). Nonetheless, EPA, and subsequently the district
court, concluded that s 205's catchall phrase, "other particu-
lar matter," covered commentary on such EIS-related mat-
ters and similar federal land-use proposals. See Van Ee, 55
F.Supp.2d at 6-7. Our review of the district court's ruling on
summary judgment is de novo. Independent Bankers Ass'n of
Am. v. Farm Credit Admin., 164 F.3d 161, 166 (D.C. Cir.
1999); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
__________
4 Although Van Ee urges this court to hold broadly that s 205
does not bar "federal employees ... from speaking on behalf of
others to federal agencies in connection with issues of public
concern outside the context of legal or administrative claims or
proceedings or formal, adversarial legal relationships such as con-
tracts," the examples in his letter giving rise to EPA's response of
April 5, 1996, are more confined. See supra n.2. The broadly
phrased relief sought by Van Ee encompasses a variety of types of
communications, many of which he may have no interest in pursuing
and some of which may fall within s 205 and thus require consider-
ation of his First Amendment challenge. Because the court will not
reach a constitutional question if the "issue has 'not been formulat-
ed to bring it into focus, and the evidence has not been offered or
appraised to decide it,' " Fortson v. Dorsey, 379 U.S. 433, 439 (1965)
(citation omitted), our review is limited to the type of communica-
tion in which Van Ee has concretely indicated he wishes to engage.
We first by examine the text in light of the design of the
statute and the principles that a criminal statute must give
fair notice of its reach and that the court should avoid where
possible difficult constitutional questions. But because the
text of s 205 does not precisely define the scope of covered
matters, we follow the instruction of the Supreme Court that
"it is ... appropriate, in a case that raises questions about
the scope of the prohibition, to identify the specific policies
that the provision serves as well as those that counsel against
reading it too broadly." Crandon v. United States, 494 U.S.
152, 165 (1990). We therefore look to the history and pur-
poses of the statute, and conclude that Congress had a more
limited view of s 205's coverage than is evidenced by EPA's
and the district court's interpretation.
A.
Section 205 applies to federal employees, employees of the
District of Columbia, and "special Government employee[s],"
defined as those serving for 130 days or less in a calendar
year. See 18 U.S.C. s 202(a). Section 205(a), applicable to
regular federal employees such as Van Ee, has two parts, one
barring an employee from assisting with, or sharing in, a
private party's claim against the United States, s 205(a)(1),
the other subjecting a federal employee to criminal or civil
penalties if the employee "acts as an agent or attorney for
anyone before any department [or] agency ... in connection
with any covered matter in which the United States is a party
or has a direct and substantial interest...." 18 U.S.C.
s 205(a)(2). A "covered matter" is defined in s 205(h) as
"any judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest, or other particular
matter." Id. s 205(h).
When considering the scope Congress intended for the
phrase "other particular matter," the court must construe
such a provision narrowly enough to avoid rendering the
preceding terms superfluous but broadly enough to avoid
rendering the catchall phrase superfluous. See, e.g., Trans
Union Corp. v. FTC, 81 F.3d 228, 233-34 (D.C. Cir. 1996).
Endeavoring to give effect to each term that Congress used,
see, e.g., Crandon, 494 U.S. at 171 (Scalia, J., concurring in
the judgment), we are persuaded that the length of the list in
s 205 serves to provide more particularized coverage than
might have been true had a single broad phrase been used.
For example, superficially broad terms such as "judicial or
other proceeding" or "controversy" cannot be read to render
the remaining terms mere surplusage. Furthermore, not
only is the scope of "other particular matter" limited by the
need to give its neighboring terms independent meaning, but
two familiar canons of construction lead us to presume that
Congress intended "other particular matter" to be limited to
administrative or judicial settings of a similar nature that
share the same attributes as the preceding terms. See, e.g.,
Babbitt v. Sweet Home, 515 U.S. at 701-02 (applying doctrine
of noscitur a sociis or "known by the company it keeps");
Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (same);
Bazuaye v. United States, 83 F.3d 482, 484 (D.C. Cir. 1996)
(applying doctrine of ejusdem generis or "of the same kind,
class, or nature").
We do not agree with Van Ee's contention that the terms
preceding "particular matter" are limited to adversarial pro-
ceedings or formal legal relationships, for the conflicting
interests at which s 205 is aimed could be equally present, for
example, were a federal employee to represent a private
party in its uncontested application for a broadcast license,
patent, or other valuable benefit. But the fact that Congress
specified that s 205 applies with respect to an "application"
or "request for a ruling or other determination" so as to
criminalize situations in which a private party seeking a
governmental benefit enlists the representational assistance
of a federal employee, who potentially could use confidential
information or abuse his office or position to assist such a
party, gives rise to the negative inference that Congress did
not intend s 205 to act as a general gag order on federal
employees.
Rather, looking solely to the text, we tentatively conclude
that the limiting principle guiding Congress with respect to
s 205 is that it is to apply only to matters in which the
governmental decision at stake is focused on conferring a
benefit, imposing a sanction, or otherwise having a discerna-
ble effect on the financial or similarly concrete interests of
discrete and identifiable persons or entities. These are situa-
tions in which a federal employee, acting as a private party's
agent or attorney, could be perceived as having divided
loyalty and as using his or her office or inside information to
corrupt the government's decisionmaking process.5
This interpretation of s 205's "particular matter" is in
accord with judicial and administrative interpretations of the
phrase as it is used in related conflict-of-interest provisions,
enacted along with s 205 as part of an "Act to strengthen the
criminal laws relating to bribery, graft, and conflicts of inter-
est, and for other purposes," Pub. L. No. 87-849, 76 Stat.
1119 (1962) ("1962 Act").6 The circuits that have interpreted
__________
5 Section 205 distinguishes between a "covered matter" applica-
ble to regular federal employees and a "covered matter involving a
specific party or parties" applicable to special Government employ-
ees. Compare s 205(a)(2) with s 205(c). Section 203 makes a
similar distinction and s 207, applicable to former employees, also
uses the "specific party or parties" limitation. See 18 U.S.C.
ss 203(c); 207(a)(1)(C), (a)(2)(C). This distinction suggests poten-
tially broader coverage of the relevant provisions for regular em-
ployees. The legislative history indicates that the "specific party or
parties" language was added to render the provisions inapplicable
to rulemakings with respect to special Government and former
employees. See 108 Cong. Rec. 21981 (Oct. 3, 1962); S. Rep. No.
2213 at 2-3 (1962). However, this distinction is muddled by the
addition of s 207(i), which specifically defines "particular matter" to
include "rulemaking" while s 207 elsewhere retains the "specific
party or parties" limitation, in the Ethics Reform Act of 1989, Pub.
L. No. 101-194, 18 U.S.C. s 207(i). Assuming that s 205 covers at
least some rulemakings with respect to regular employees and none
with respect to special Government employees, that fact sheds little
light on whether Congress intended s 205(a)(2) to extend beyond
rulemakings to the types of administrative settings at issue in the
instant case.
6 Other than in the 1962 Act, the phrase "particular matter"
appears in certain agency-specific conflict-of-interest provisions,
"particular matter" in these related provisions have similarly
construed the term to be limited to situations in which a real
danger of conflicting interests might be present.7 Likewise,
the Department of Justice's Office of Legal Counsel ("OLC")
has concluded that "[t]he purpose of this language, ["particu-
lar matter"], throughout the federal conflict of interest laws is
to limit application of the laws to actions focusing upon
particular, distinct, and identifiable sets of facts with reason-
ably measurable implications and consequences." See Appli-
cation of 18 U.S.C. s 205 to Communications Between the
Nat'l Ass'n of Assistant U.S. Attorneys and the Dept. of
Justice, 18 U.S. Op. Off. Legal Counsel 212, 219 (1994)
(internal quotations omitted). OLC explained that "whether
the object of deliberation, decision, or action constitutes a
particular matter will depend upon how closely analogous the
object of the deliberation, decision or action is to the object of
a typical judicial proceeding, claim, application or other mat-
ter enumerated in section 208." Id. (quotation and citation
omitted). Both OLC and OGE have recognized that s 205
does not reach "representation ... made in connection with a
broad policy matter that is directed to the interests of a large
and diverse group of persons rather than one that is focused
on the interest of a discrete and identifiable class." Id.
(quoting OGE advisory opinion). In defining "particular mat-
__________
some of which were enacted after the 1962 Act. See 7 U.S.C.
s 2008j(f)(10)(A) (prohibiting members of Board of Directors of the
National Sheep Industry Improvement Center from voting on inter-
ested transactions); 7 U.S.C. s 5903(j)(1) (same for Board members
of the Alternative Agricultural Research and Commercialization
Corporation); 40 U.S.C. app. s 108(a) (similar provision for mem-
bers of Appalachian Regional Commission); 43 U.S.C. s 1355 (post-
employment provision applicable to former high-ranking Depart-
ment of Interior employees).
7 See United States v. Wallach, 979 F.2d 912, 920-21 (2d Cir.
1992); United States v. Williams, 705 F.2d 603, 622 (2d Cir. 1983);
cf. United States v. Meyers, 692 F.2d 823, 857 (2d Cir. 1982);
United States v. Medico Indus., Inc., 784 F.2d 840, 843-44 (7th Cir.
1986); see also CACI, Inc. v. United States, 719 F.2d 1567, 1576
(Fed. Cir. 1983).
ter" as used in s 208's ban on a federal employee's partic-
ipation in a matter in which the employee has a financial
interest, OGE has codified its view of the term:
The term particular matter encompasses only matters
that involve deliberation, decision, or action that is fo-
cused upon the interest of specific persons, or a discrete
and identifiable class of persons. Such a matter is
covered by this subpart even if it does not involve formal
parties and may include governmental action such as
legislation or policy-making that is narrowly focused on
the interest of such a discrete and identifiable persons.
The term particular matter, however, does not extend to
the consideration or adoption of broad policy options that
are directed to the interests of a large and diverse group
of persons.
5 C.F.R. s 2635.402(b)(3) (1999).
However, neither the text nor this interpretive consensus
concerning the general distinction between covered and un-
covered matters fully addresses the more difficult issue pre-
sented in Van Ee's appeal, namely, to determine how particu-
larized the focus of decision or action in a proceeding must be
for it to be a "particular matter" under s 205. EPA advised
Van Ee that even though the public comment phase on a
resource management plan or similar land-use proposal would
appear to be a broad policymaking matter outside the scope
of s 205, if an aspect of such a plan might focus on "a discrete
and identifiable class of persons" that would turn the proceed-
ing into a covered "particular matter." While determining the
scope of "particular matter" is fact-specific to a degree,
because s 205 is a criminal statute, it must be interpreted so
as to afford fair warning of its reach. See Crandon, 494 U.S.
at 160; cf. Meyers, 692 F.2d at 857.
Moreover, although our interpretation of s 205's scope
rests on independent grounds, it is compatible with the
principle that in interpreting the reach of the statute, a court
must bear in mind that "where a statute is susceptible of two
constructions, by one of which grave and doubtful constitu-
tional questions arise and by the other of which such ques-
tions are avoided, our duty is to adopt the latter." Jones v.
United States, 119 S.Ct. 1215, 1222 (1999) (internal quotations
and citations omitted). As a public employee Van Ee retains
his First Amendment rights to speak on matters of public
concern upon entry into public service. See e.g., United
States v. National Treasury Employees Union, 513 U.S. 454,
465 (1995); Pickering v. Board of Ed. of Township High Sch.
Dist. 205, 391 U.S. 563, 568 (1968); Sanjour v. EPA, 56 F.3d
85, 90 (D.C. Cir. 1995) (in banc). The district court deter-
mined that Van Ee's proposed communications were related
to matters of public concern, e.g., Van Ee, 55 F.Supp.2d at 9-
10, and concluded that even though under s 205 Van Ee
remained free to state his own views on any matter, to join
any organization and represent it in any non-federal forum,
and to assist the person who represents an organization
before a federal agency in preparing the organization's state-
ment, id. at 9, his First Amendment interests were nonethe-
less burdened by EPA's application of s 205 that "discour-
age[s] speech by undermining the motive and opportunity for
the speech." Id. at 10. We need not endorse or reject this
formulation of the First Amendment issues to agree that Van
Ee has raised a serious question about the constitutionality of
applying s 205 to his proposed communications.
Thus, we examine s 205 to determine whether it is suscep-
tible of being construed so that it does not apply to Van Ee's
conduct. Because the text of s 205 leaves ambiguous wheth-
er Congress intended to prohibit a federal employee from
acting as a representative of citizens' groups of which the
employee is a member in response to federal agencies' re-
quests for comment on proposed land-use plans, we turn to
the history and purpose of the statute for further guidance.
See National Labor Relations Bd. v. Catholic Bishop of
Chicago, 440 U.S. 490, 504 (1979).
B.
Section 205 was enacted in 1962 as part of what might be
viewed as a third major effort by Congress to define conflict-
of-interest restrictions for federal employees. The first phase
lasted until the mid-nineteenth century, during which only
limited and targeted prohibitions were in effect. In the
second phase, public pressure led to passage of seven statutes
of broader applicability, some of which were aimed at restrict-
ing federal employees from assisting private parties in prose-
cuting claims against the government. One of those, 18
U.S.C. s 283 (repealed 1962), was s 205's direct predecessor.
In the third phase, Congress enacted s 205 as part of an
effort to bring greater coherence to the separately-enacted
statutes from the Civil War era in view of the changed nature
of the federal government and the Cold War era.8
Prior to the mid-nineteenth century, federal conflict-of-
interest legislation applied only to specific departments and to
specific activities, leaving noticeable gaps.9 For example, no
provision prohibited federal employees from using their posi-
tion, influence, or inside knowledge to act as an agent or
attorney on behalf of private parties who had asserted claims
against the United States. This was problematic because
before the Court of Claims was established in 1855, private
claims against the government were handled either through
__________
8 Subsequent to s 205's enactment in 1962, Congress broadly
amended federal conflict-of-interest law in the Ethics in Govern-
ment Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (1978) and the
Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716,
1750-51 (1989), and Congress made minor amendments to s 205 in
Pub. L. No. 101-280 s 5(c) (1990) and in Pub. L. No. 104-177 s 2
(1996). These changes do not affect the issues presented in the
instant case.
9 An early statute prohibited the Secretary of the Treasury
from having certain private financial interests or engaging in cer-
tain transactions, such as purchasing public lands, that could con-
flict with his departmental responsibilities. See 1 Stat. 67 (1789), as
amended, Rev. Stat. s 243 (1875), 5 U.S.C. s 243 (repealed 1962).
By contrast, prior to the Civil War-era, other department heads and
Members of Congress were free to represent private parties in
court or before commissioners so as to prosecute claims against the
United States or to speculate in the market for public lands. See
Cong. Globe, 32d Cong., 2d Sess. 289-90 (1853) (remarks of Rep.
Stephens (Ga.)).
private acts of Congress or directly by the relevant executive
department. See Special Comm. on the Federal Conflict of
Interest Laws, Ass'n of the Bar of the City of New York,
Conflict of Interest and Federal Service [hereinafter "New
York City Bar Report" or "N.Y. Bar Rept."] 31-32 (1960)
(footnote omitted). Claim proceedings before the depart-
ments were often conducted ex parte and without adversary
proceedings. Id. This system led to influence peddling,
information selling, and the dissipation of public funds. Id.
Spurred by presidential pressure and increasing public
attention to such paradigmatic conflicts of interest, Congress
enacted seven statutes that applied to the executive branch
and, in some cases, to Congress. The first of these, s 205's
direct predecessor, was "An Act to Prevent Frauds on the
Treasury of the United States," 10 Stat. 170 s 2 (1853), as
amended, 18 U.S.C. s 283 (repealed 1962). Section 283 pro-
hibited an officer or employee of the United States or of the
Senate or House of Representatives from "act[ing] as an
agent or attorney for prosecuting any claim against the
United States, or aid[ing] or assist[ing] in the prosecution or
support of any such claim...." Id. In the 1860s, Congress
added further prohibitions, partially in response to high-
profile procurement scandals.10 Directly relevant here is
former 18 U.S.C. s 281, enacted at 13 Stat. 123 (1864), which
was closely related to former s 283.11 Of the remaining five
statutes, each also repealed by the 1962 Act, some shared
__________
10 For example, in one scheme, military employees purchased
defective rifles from the government for $3.50 each and then resold
the rifles to the government for $22. See N.Y. Bar Rept. at 34-35.
11 Section 281 prohibited receipt of "compensation for any ser-
vices rendered or to be rendered ... in relation to any proceeding,
contract, claim, controversy, charge, accusation, arrest, or other
matter" in which the United States has an interest. 18 U.S.C.
s 281 (repealed 1962) (emphasis added). Prior to 1948, the list
ended with "other matter or thing." E.g. United States v. Booth,
148 F. 112, 114 (C.C.D. Or.1906); see also Bayless Manning,
Federal Conflict of Interest Law 52 n.71 (1964).
s 283's limited application to matters involving a "claim
against the United States".12
As with current s 205, both former ss 283 and 281 were
directed at the problem of divided loyalty, targeting a federal
employee's assistance to outside interests in certain dealings
with the government. Section 283 focused on representation-
al assistance by an executive or legislative branch employee,
other than a Member of Congress, in connection with claims
against the government, regardless of whether the federal
employee received compensation. Section 281 reached a
broader range of assistance, covering not just prosecution of
claims against the United States but also the "rendering [of]
service" in relation to administrative proceedings in which the
United States has an interest, but applied only where the
federal employee received compensation for his or her ser-
vices. Cf. United States v. Meyers, 692 F.2d 823, 856-57 (2d
Cir. 1982).
With the dramatic growth of the federal government, the
nature of federal service changed, giving rise to new potential
conflicts of interest. See N.Y. Bar Rept. at 131-34. In the
post-New Deal era, and after commencement of the Cold
War, increasing demand by administrative agencies and the
__________
12 The statutes repealed by the 1962 Act were: 18 U.S.C. s 216
(enacted in 1862, prohibiting compensation for assisting in procure-
ment of government contracts); id. s 434 (enacted in 1863, requir-
ing disqualification from matter in which employee had personal
interest); 5 U.S.C. s 99 (enacted in 1872, prohibiting former execu-
tive branch employee from prosecuting claim that had been pending
at the time of his federal employment); 18 U.S.C. s 284 (composite
of 1919 and 1944 acts as criminal analog to 5 U.S.C. s 99); id.
s 1914 (enacted in 1917, prohibiting compensation of government
employees from outside sources). See Pub. L. No. 87-849 ss 1(c),
2, 3, 76 Stat. 1119, 1127-28 (1962); see also Crandon, 494 U.S. at
160-63.
In addition to these branch-wide provisions, Congress peri-
odically enacted agency-specific prohibitions on outside inter-
ests. See, e.g., 24 Stat. 383 (1887) (ICC); 38 Stat. 717 (1914)
(FTC); 46 Stat. 797 (1930) (FPC); 48 Stat. 1066 (1934) (FCC);
52 Stat. 980 (1938) (CAB). For exemptions, see H.R. Rep. No.
86-2068 at 3-4 (1960). military for specialized government employees, particularly
scientists and attorneys, led to increased opportunities for
such employees to capitalize on government service in the
private sector. See e.g., S. Rep. No. 87-2213 at 6-7 (1962);
H.R. Rep. No. 86-2068 at 5-7 (1960); 107 Cong. Rec. 6836
(Apr. 27, 1961). Restrictive judicial interpretations of the
Civil War-era statutes made it apparent that legislation would
be required to respond to emerging forms of conflicts of
interest.13 In addition, the increasing number of potential
temporary government employees who rejected such posi-
tions for fear that the conflict-of-interest provisions, such as
the revolving door provision, would impede their return to the
private sector led Congress to adapt federal conflict-of-
interest law to such "special employees". See, e.g., Hearings
on H.R. 302, H.R. 3050, H.R. 3411, H.R. 3412, and H.R. 7189
Before the Antitrust Subcomm. (Subcomm. No. 5) of the
Comm. on the Judiciary of the House of Representatives,
87th Cong. 106-09, 120-22 (1961) [hereafter House Subcomm.
Hearings].
Thus Congress enacted the 1962 Act in response to the
judicial narrowing of the Civil War-era statutes and the
changing nature of federal service in an attempt to modern-
ize, clarify, and bring greater coherence to the separately-
enacted Civil War-era statutes. See Roswell B. Perkins, The
New Federal Conflict-of-Interest Law, 76 Harv. L. Rev. 1113,
__________
13 See, e.g, United States v. Bergson, 119 F.Supp. 459 (D.D.C.
1954), where the district court dismissed the indictment of a former
Justice Department attorney for his post-employment representa-
tion of corporate clients seeking pre-merger approval from the
Department on the ground that 18 U.S.C. s 284 (repealed 1962) did
not apply because such representation was not in connection with a
"claim against the United States." See also Hobbs v. McClean, 117
U.S. 567, 575 (1886); United States v. 679.19 Acres of Land, 113
F.Supp. 590, 593-94 (D.N.D.1953). Although the district court in
Bergson construed the term "claim" in the context of s 284, Con-
gress and the President understood the holding to apply to s 283 as
well. See, e.g., 107 Cong. Rec. 6836 (Apr. 27, 1961) (message from
the President); H.R. Rep. No. 87-748 at 21 (1961); S. Rep. No. 87-
2213 at 5.
1115-17, 1122-23 (1963). The 1962 Act was aimed at a host of
concerns, and s 205 is merely one strand of an intricate
scheme of regulations governing federal employees' conflicts
of interest.14 The history of the 1962 Act reflects congres-
sional focus on direct conflicts of interest, misuse of confiden-
tial government information, and abuse of position, confirm-
ing both that Congress intended to broaden the predecessor
representational-assistance provision, former s 283, beyond
claims for money or property, and also to limit the breadth to
other situations in which a private party might improve its
chances of obtaining a benefit or avoiding a sanction if its
agent or attorney in such a proceeding were a federal em-
ployee.
The final version of s 205 emerged as an amalgam of three
similar bills introduced during the 87th Congress. See gener-
ally House Subcomm. Hearings. With respect to the repre-
sentational-assistance provision, each bill expanded the cover-
age of former s 283 beyond claims against the government by
importing the list of proscribed proceedings that had been
covered by the compensated assistance provision, former
s 281, into what is now s 205.15 Although some language in
__________
14 For example, surrounding s 205 are provisions making it a
crime to bribe a federal employee or for such employee to accept a
bribe (s 201; cf. 18 U.S.C. s 217, 26 U.S.C. s 7214(a)(9) (1994)); to
compensate a federal employee for his or her assistance to anyone
involved in a proceeding in which the United States has a direct and
substantial interest (s 203); for certain federal employees to en-
gage in certain post-employment conduct involving the United
States (s 207); for an employee to participate in any decision or
proceeding relating to a matter in which she has a financial interest
(s 208), and for an employee to receive any "contribution to or
supplementation of salary" from a non-governmental source (s 209).
Cf. United States v. Sun-Diamond Growers of California, 119 S.Ct.
1402, 1408-09 (1999); see also Crandon, 494 U.S. at 158.
15 See House Subcomm. Hearings at 7-8, 19, 22-23. The list
initially imported, in slightly modified form, into early drafts of
s 205 was "any proceeding, contract, claim, controversy, charge,
accusation, arrest or other matter." Id. at 19 (rearranging and
omitting "investigation" and "judicial or other proceeding" from the
the legislative history suggests an understanding that this
textual change would cover "all" matters coming before a
federal agency, see H.R. Rep. No. 87-748 at 20, it is readily
apparent that Congress had a more limited view of its task,
inserting two additional terms--"application" and "request
for a ruling or other determination", House Subcomm. Hear-
ings at 53-54--to cover specific types of proceedings in which
a real conflict of interest might arise. See H.R. Rep. No. 87-
748 at 21; see also S. Rep. No. 87-2213 at 5.
In the 1962 Act, Congress did not intend s 205 to extend
beyond situations in which there was a real conflict of interest
or which potentially presented an opportunity for abuse of
office, misuse of confidential information, or similar conflicts
of interest to arise. Congressional reports explained that the
final bill limited s 205 to situations in which the federal
employee acts as an "agent or attorney" rather than merely
"aids or assists" a private party because "inclusion of the
term 'aids or assists' would permit a broad construction
embracing conduct not involving a real conflict of interest."
Id.16 Also, Congress narrowed the catchall phrase from
__________
s 281 list). The bills drafted by the Administration and in the New
York City Bar Report would have grouped these matters under an
umbrella phrase, "transaction involving the Government," indicating
an understanding that the list covered those administrative settings
in which private interests stood to experience ascertainable gains or
losses resulting from an administrative decision. See id. at 7, 23.
In 1989 Congress amended s 205 to group the terms under the
umbrella phrase "covered matter," defined by the same list of
matters as had been in subsection (a)(2), in newly added subsection
(h). See Ethics Reform Act of 1989 s 404, Pub. L. No. 101-194, 103
Stat. 1716, 1750-51 (1989).
16 Similarly, with respect to the revolving door provision, the
Senate Judiciary Committee opined:
Whatever the merit of this prohibition at a time when the
Government departments were fewer in number and much
smaller in size, it makes very little sense today. Thus, it is
hard to advance a reasonable justification for precluding a
former Commerce Department attorney, for 2 years or for any
length of time, from representing before the Treasury Depart-
"other matter" to "other particular matter," in order "to
emphasize that the restriction applies to a specific case or
matter and not to a general area of activity." H.R. Rep. No.
87-748 at 20.17
Contemporaneous interpretation of the proscribed list of
matters covered by s 205 also indicates that the section was
not intended to apply to a federal employee's volunteer
activities on behalf of environmental groups because such
activities would not give rise to the type of divided loyalty at
which the statute was aimed. The authors of the New York
City Bar Report wrote:
Whether an employee is intermittent or regular, his [or
her] political and other organizational affiliations and
activities will not be affected by the section except in the
most unusual situations. An employee who is a member
of an organization to protect wildlife, for example, will
not run afoul of section 4 [the Bar bill's very similar
version of s 205], even if he [or she] actively helps the
organization in its efforts to influence federal policy in
the direction of better wildlife protection.
N.Y. Bar Rept. at 209.
In sum, when crafting s 205, Congress did not intend to
bar a federal employee from representing outside interests in
all matters in which the United States has an interest.
Instead, Congress imported the list of proscribed activities
from the former compensated-assistance provision (s 281)
__________
ment a private client who has a claim for an income tax refund
with which the attorney never had any connection while in
Government service.
S. Rep. No. 87-2213 at 5-6.
17 When the House Judiciary Committee reported the bill, "oth-
er matter" had become "other particular matter" in the new com-
pensated-assistance provision, s 203, without reflecting a corre-
sponding change in s 205. See H.R. Rep. No. 87-748 at 1, 37, 39.
However, in the version of the bill on which the entire House voted,
"particular" was added before "matter" in s 205 as well. See H.R.
8140, as amended, 87th Cong. at 11 (Jul. 20, 1961).
into s 205, updated that list by extending coverage to an
"application" and "request for a ruling or other determina-
tion," and narrowed the catchall phrase, "other matter", in
former s 281 to "other particular matter."
C.
This history clarifies EPA's misinterpretation of the scope
of s 205. Under EPA's approach, the scope of s 205 turns
not on the nature of the matter but on the content of the
federal employee's comments. For example, EPA advised
Van Ee that because some of the comments he expected to
make as a spokesperson in relation to the BLM's plan for
managing public lands in southern Nevada would focus on use
of specific parcels of land and on the siting of power lines by
two utility companies, as well as BLM's proposed acquisition
of environmentally-sensitive lands in which a local mining
company had an interest, those comments would be in rela-
tion to a covered "particular matter." By contrast, EPA
advised, had Van Ee sought to convey to BLM only a
generalized concern about preserving sufficient recreational
space, Van Ee's acting as spokesperson would not have been
in relation to a "particular matter" even though the proceed-
ing--public comment on BLM's resource management plan--
was the same.
EPA's elastic approach broadens s 205 beyond the range
intended by Congress, is inconsistent with the OGE regula-
tion on which EPA purportedly relied, and fails to provide
federal employees with fair warning of the scope of permissi-
ble representational activities. Rather, whether an adminis-
trative proceeding is a "particular matter" under s 205 is
determined by the nature and focus of the governmental
decision to be made or action to be taken as a result of the
proceeding. Only where the decision is focused on a probable
particularized impact on discrete and identifiable parties are
the concerns animating s 205 implicated. Thus, EPA's ad-
vice to Van Ee was flawed insofar as it hinged upon the
specific nature of the comments that Van Ee sought to make
and their possible relationship to aspects of the decision that
might ultimately affect specific groups or individuals, rather
than upon the overall focus of the proceeding itself.
Even to the extent that some of Van Ee's comments would
have concerned proposed actions likely to have a discernible
impact on the interests of identifiable parties, see supra n. 2,
the focus of the decisions to be made are of a much broader
nature. For example, the focus of decision following the
public comment phase on a proposed EIS - what to include in
the final EIS - is not on the interests of particular groups or
individuals. As the court has recently reiterated, the heart of
the EIS is the requirement that an agency rigorously explore
and objectively evaluate the projected environmental impacts
of all reasonable alternatives for completing the proposed
action. City of Alexandria v. Slater, 1999 WL 1204341 *3
(Dec. 17, 1999) (citing 40 C.F.R. s 1502.14). Moreover, even
the types of proposed actions for which the relevant EIS's
were issued focused on diverse sets of interests, such as how
to reconcile or balance recreational, conservation, and com-
mercial interests in a land-use plan covering considerable
territory.
In other words, the concreteness that s 205 requires by
way of a "particular matter" is absent when a public interest
group is responding to an agency's call for public comment on
a broad plan for land management. Van Ee does not seek,
for example, to participate in proceedings involving the grant-
ing of a license to operate a concession on public lands or
some similar benefit. Rather, the proceedings in which Van
Ee seeks to participate call for the provision of the Nevada
groups' views as to the potential environmental impacts of
proposed action under consideration. Although in a very
broad sense such proceedings may serve to advance the
interests of a public interest group to the extent that the
agency adopts its views or moderates proposals to address
considerations of importance to the public interest group, this
is hardly the situation that caused Congress to enact a
criminal statute to preserve the integrity of governmental
service and decisionmaking. The OGE regulation expressly
reflects the understanding that "the term 'particular matter'
does not extend to the consideration or adoption of broad
policy options that are directed to the interests of a large and
diverse group of persons," 5 C.F.R. s 2635.402(b)(3). The
proceedings at issue here simply do not present the problems
that Congress sought to cure as nothing in the record remote-
ly suggests that Van Ee has a real conflict of interest or is
misusing government information or otherwise abusing his
position.
EPA also failed to acknowledge the implications of its
restrictive interpretation when it opined that the First
Amendment was not implicated because Van Ee could ex-
press his own views and even prepare the views of the public
interest groups of which he is a member and explain those
views to the media. Allowing Van Ee to do everything except
identify himself publicly as the author of a group's commen-
tary, would appear to foster secret influence peddling seem-
ingly oblivious to congressional concerns to avoid the misuse
of governmental information, office, or position.
For these reasons, we conclude that the prohibitions Con-
gress established in s 205 are not so broad as is stated in
EPA's advice of April 5, 1996, to Van Ee. Neither the text
nor the legislative history demonstrates a congressional in-
tent to prevent federal employees from representing non-
governmental interests without compensation in proceedings
in which broad policy issues are at stake because the causal
link giving rise to a conflict of interest would be too insub-
stantial. Cf. S. Rep. No. 87-2213 at 5-6. The legislative
record confirms that Congress intended s 205 to have a
broader reach than its predecessor but also that s 205 would
not reach the EIS and similar land-use proceedings in which
Van Ee seeks to participate as an agent of the environmental
groups of which he is a member.18 The interpretive consen-
__________
18 Van Ee also contends that s 205 does not apply to his
communications because he would not communicate as the "agent or
attorney" of the groups of which he is a member. See 18 U.S.C.
s 205(a)(2). Relying in part on this court's prior interpretation of
"agent or attorney," see Bailey, 498 F.2d at 679, the district court
rejected his contention. See Van Ee, 55 F.Supp.2d at 7-8. Our
sus lends further support to our conclusion that s 205 is
properly understood to apply to those matters in which a
federal employee's representational assistance could poten-
tially distort the government's process for making a decision
to confer a benefit, impose a sanction, or otherwise to directly
effect the interests of discrete and identifiable persons or
parties. As a result, s 205 leaves career federal civil ser-
vants free to voice the concerns of citizens' groups of which
they are members on broad policy issues because the likeli-
hood that such representational assistance could divide the
loyalty of the employee or distort the decisionmaking process
is minimal. Our interpretation of s 205's scope fully address-
es Congress' concerns about conflicts of interest that may
arise when federal employees assist outside interests in gov-
ernmental proceedings, while leaving federal employees such
as Van Ee free to play a representational role for groups of
which they are a member in certain settings, and also has the
salutary effect of avoiding potentially grave constitutional
concerns that would arise were s 205 construed to cover Van
Ee's acting as a spokesperson for the groups of which he is a
member. See Rust v. Sullivan, 500 U.S. 173, 190 (1991); see
also Jones v. United States, 119 S.Ct. at 1228.
Accordingly, without reaching Van Ee's constitutional chal-
lenges to s 205 or the appearance regulation, 5 C.F.R.
s 2635.101(b)(14), we reverse the judgment of the district
court and remand the case so that the district court may
award declaratory relief to Van Ee consistent with this opin-
ion.19
__________
holding that s 205 does not apply to Van Ee's proposed communica-
tions does not rest on Van Ee's proposed construction of "agent or
attorney." See Refine Const. Co. v. United States, 12 Cl.Ct. 56, 61
(1987); Community for Creative Non-Violence v. Reid, 490 U.S.
730, 739 (1989); Neder v. United States, 119 S.Ct. 1827, 1840 (1999);
Restatement (Second) of Agency s 1(1) & cmt. a, ss 12-14; Cf.
United States v. Sweig, 316 F. Supp. 1148, 1156-57 (S.D.N.Y. 1970).
19 Van Ee also sought injunctive relief, but the record before
this court does not provide a basis for such relief. Compare 28
U.S.C. s 2201 with Amoco Prod. Co. v. Village of Gambell, Alaska,
480 U.S. 531, 546 n. 12, 107 S. Ct. 1396, 94 L.Ed.2d 542 (1987);
Washington Metropolitan Area Transit Comm'n v. Holiday Tours,
Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).