Application of 18 U.S.C. § 205 to Communications Between the National Association of Assistant United States Attorneys and the Department of Justice

Application of 18 U.S.C. § 205 to Communications Between the
National Association of Assistant United States Attorneys and
the Department of Justice

T h e re s tric tio n s o f 18 U .S .C . § 2 0 5 p re c lu d e c u rre n t fe d e ra l e m p lo y e e s from re p re s e n tin g th e N atio n al
A s s o c ia tio n o f A ss is ta n t U n ite d States A tto rn e y s b e fo re th e D e p a rtm e n t o f J u stic e re g a rd in g c o m ­
p e n s a tio n , w o rk p la c e is su e s , and o th e r is su e s th a t fo c u s o n the in te re sts o f A ss is ta n t U n ite d S tates
A tto rn e y s o r a n o th e r d is c re te an d id e n tifia b le c la ss o f p e rs o n s o r e n titie s

S e c tio n 2 0 5 d o e s n o t p re c lu d e several o th e r k inds o f c o m m u n ic a tio n s b e tw e e n the D e p a rtm e n t and
N A A U S A o r s im ila r a sso c iatio n s. T h e D e p a rtm e n t is n o t p re c lu d e d from d e a lin g w ith in d iv id u a l
A U S A s o r g ro u p s o f A U S A s in their o ffic ia l c a p a c itie s o n m a tte rs a ffe c tin g A U S A s, e v e n if those
A U S A s a re c o in c id e n ta lly m em b ers o f N A A U S A N o r d o e s s e c tio n 205 p la c e an y re s tric tio n s o n
re p re s e n ta tiv e s w h o a re n o t cu rren t fe d e ra l e m p lo y e e s , su ch a s N A A U S A ’s e x e c u tiv e d ire c to r or
fo r m e r A U S A s n o lo n g e r em p lo y e d b y the g o v e rn m e n t F in a lly , d isc u ssio n s o f b ro a d p o lic y d i­
re c te d to w a rd s a la rg e a n d d iv erse g ro u p o f p e rso n s w o u ld b e p e rm is sib le u n d e r the statu te.

N ovem ber 7, 1994

M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l

Y ou have asked for our opinion as to whether and how the provisions of 18
U.S.C. § 205 apply to communications between employee members of the National
A ssociation o f A ssistant United States Attorneys (“NAAUSA”) and officials of the
D epartm ent. A fter consulting w ith the Office of Government Ethics (“OGE”),
whose views on this question were provided to us in an advisory opinion dated
Septem ber 28, we have concluded that while discussions of broad policy options
are not “covered m atters” within the m eaning o f the statute, several o f the issues
N A A U SA may wish to present constitute “covered matters” under § 205. Ac­
cordingly, that section’s prohibition on representational activities would bar a fed­
eral em ployee from representing N A A U SA ’s position on those matters before
departm ent officials.
Section 205 is not a barrier to other types of communications between the D e­
partm ent and N A A U SA or similar associations. The Department is in no way pre­
cluded from dealing with individual or groups of A ssistant United States Attorneys
(“A U SA s”) in their official capacities on matters affecting AUSAs, even if those
A U SA s are coincidentally members of NAAUSA. N or does § 205 place any re­
strictions on representatives who are not current federal employees, such as
N A A U S A ’s executive director or any form er AUSAs no longer employed by the
governm ent. Finally, discussions o f broad policy directed towards a large and di­
verse group o f persons would be perm issible under the statute.

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 A pplication o f 18 U S C. § 205 to C om m unications Between the N ational A ssociation o f
A ssistant U nited States A ttorneys an d the D epartm ent o f Justice

I. Background

NAAUSA characterizes itself as a professional, non-governmental association
with the primary objective of promoting and protecting the career and professional
interests of AUSAs. It is incorporated as a non-profit corporation in the D istrict of
Columbia, and is organized to operate as a business league or trade association
within the meaning of § 501(c)(6) of the Internal Revenue Code. NA AUSA Arti­
cles of Incorporation. N A A U SA ’s membership, currently numbering almost
1,000, is open to all current and former AUSAs, including supervisors and m anag­
ers. The founders of NAAUSA patterned the organization after the Federal Bu­
reau of Investigation Agents Association, founded in 1981, and also compare their
activities to those of national, state, and local bar associations. According to its
promotional materials, N A A U SA ’s immediate priorities include soliciting the
views of its members on legal and law enforcement issues and presenting those
views to the Department, Congress and the public; seeking greater AUSA com pen­
sation from the Department and from Congress, including a retirement plan com pa­
rable to those enjoyed by other law enforcement personnel, bonuses and cash
awards; and working with the Department on workplace issues, such as parental
leave and child care. M embership solicitation letter from Lawrence J. Leiser,
President, NAAUSA (Jan. 1994); see also Newsletter of the NAAUSA, vol. 1,
issue 1 (June 1994).
The executive director of NAAUSA, who is not a federal employee, and its
president, an AUSA, have requested meetings with the Attorney General,
the Attorney General’s Advisory Committee (“AGAC”), the Executive O ffice of
U.S. Attorneys (“EOUSA”), and other department officials to discuss their con­
cerns on behalf of NAAUSA and its members. You have asked us to identify any
restrictions § 205 would place on N A A U SA ’s communications with department
officials.

II. Section 205: Overview

Section 205 subjects any “officer or employee of the United States in the ex­
ecutive, legislative, or judicial branch of the Government or in any agency o f the
United States” who, “other than in the proper discharge of his official duties . . .
acts as agent or attorney for anyone before any department, agency, court, court-
martial, officer, or civil, military, or naval commission in connection with any cov­
ered matter in which the United States is a party or has a direct and substantial in­
terest” to penalties including imprisonment for up to one year and a civil fine of
not more than $50,000. 18 U.S.C. §§ 205(a), 216. For the purposes of § 205, the
term “covered matter” is defined as “any judicial or other proceeding, application,
request for a ruling or other determination, contract, claim, controversy, investiga­
tion, charge, accusation, arrest, or other particular matter.” Id. § 205(h).

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T here are several classes of representations which are not restricted in any way
by § 205. R epresentations before Congress, w hich is not a department, agency, or
court, are not covered by § 205.' In addition, since § 205’s prohibitions apply only
to officers and em ployees of the U nited States, any non-federal employee repre­
sentative o f NAAUSA, such as its current executive director or a former AUSA no
longer em ployed by the government, may represent NAAUSA before the Depart­
ment w ithout violating the statute.2
W here a federal employee wishes to represent NAAUSA before the Depart­
ment, the OGE has stated, and we concur, that

[a]s a general proposition, it seems clear that § 205 would bar an
em ployee from representing an employee organization before the
G overnm ent unless the representation was part o f the em ployee’s
official duties, or otherwise m et one of the exceptions in the statute,
or was undertaken in accordance with a statute that explicitly ex­
em pted the activity from the proscription of § 205. There is no in­
dication that Congress intended to generally exempt employees
from the prohibition of § 205 when representing employee interest
groups.

OGE Opinion at 2 (footnote omitted).

A. O fficia l D u ties

By its terms, § 205 does not apply to activity undertaken pursuant to an em ­
ployee’s official duties. For this reason, the activities o f employees such as the
U.S. Attorney m em bers of the AGAC are not restricted by § 205. The members of
the A G A C, at the direction of the Attorney General, participate in a process estab-

1 W e a d d ress in a sep arate opinion certain F irst A m en d m en t and related issues pertaining to testim ony by
an A U S A o n leg islatio n m w hich the D epartm ent has an interest, w here the A U SA is not authorized to speak
on b e h a lf o f the D epartm ent b u t rather is ap p earin g in a personal capacity on beh alf o f N A A U SA
" S ectio n 205 d o es not apply to representations m ade by an em ployee on his ow n behalf, or to purely
factual co m m u n ic atio n s As the O G E has e x p lain ed ,
B ecau se § 205 d o es n o t p rohibit self-representation, an em ployee m ay represent his ow n view s
b efo re the G o v ern m en t in connection w ith a particular m a tte r even if those view s are the sam e as
th o se held by an o rg an izatio n in which th e em ployee h a p p en s to be a m em ber. . [A ]n e xam i­
n atio n o f all o f the circum stances surrounding the co m m u n ication m ight[, how ever,] indicate that
the e m p lo y ee w as in fact representing th e organization to the G overnm ent on the m atter. For ex ­
am p le, if the e m p lo y e e ’s view s were su b m itte d in w riting on the o rg a n iz a tio n ’s stationery, or if
the em p lo y ee id en tified h im se lf as an o ffic e r o r m em ber o f the organization in staling his views,
the G o v e rn m e n t m ight p roperly conclude that the em p lo y ee was really acting as the organiza­
tio n 's rep resen tativ e
Letter for the H onorable W alter Dellinger, A ssista n t A ttorney G eneral, O ffice o f Legal C ounsel, from S te ­
phen D Potts, D irector, O ffice o f G overnm ent E thics al 2-3 (S ep t 28, 1994) (“O G E O pinion") Finally,
O G E a lso n o ted lhat the p ro h ib itio n s o f § 205 are not applicable to “ [cjom m um cations o f a purely m inisterial
n ature,” such as “resp o n d in g to requests from th e G o v ern m en t fo r factual inform ation " Id at 3

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 A pplication o f 18 U .S C. § 205 to C om m unications B etw een the N ational A ssociation o f
A ssista nt U nited States A ttorneys a n d the D epartm ent o f Justice

lished and directed by department officials to accomplish the D epartm ent’s mis­
sion. See 28 C.F.R. § 0.10 (1994). AGAC members are clearly acting pursuant to
their official duties, and their representation of other employees or of the Com m it­
tee does not violate the statute.
NAAUSA cannot be characterized as an internal management committee akin to
the AGAC. As a corporation, NAAUSA has a legal identity independent o f that of
the Department or its members. Department officials played no role in its creation,
and exercise no control over its officers or its activities. NAA USA’s membership
includes individuals who are no longer employees o f the federal government.
W hile N A A U SA ’s agenda focuses on issues arising from its m em bers’ status and
responsibilities as AUSAs or former AUSAs, an em ployee’s decision to participate
in or represent NAAUSA is not an obligation of his employment, and, concom i­
tantly, not an official duty.

B. The Exceptions to Section 205

NAAUSA’s proposed activities do not fall within the scope o f the limited ex­
ceptions to § 2 0 5 ’s prohibitions. The exception for representation in “personnel
administration proceedings” is somewhat related to N AAUSA’s objectives. It pro­
vides that “[n]othing in subsection (a) or (b) prevents an officer or employee . . .
from acting [with or] without compensation as agent or attorney for, or otherwise
representing . . . any person who is the subject of disciplinary, loyalty, or other
personnel administration proceedings in connection with those proceedings.”
18 U.S.C. § 205(d)(1). When advising on the appropriateness of instituting crim i­
nal charges, we have declined to give the term “personnel administration proceed­
ings” an “overly narrow reading,” instead suggesting that it should be read as
applying to the general class of “personnel m atters.” M emorandum for the Deputy
Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of
Legal Counsel, Re: A U S A ’s R epresentation o f R em ovable Justice D epartm en t Of­
fic ia l at 5-6 (Aug. 31, 1982) (“Olson M em orandum ”). The personnel proceedings
exception, however, is limited to the representation of individual employees, and
cannot be read as permitting employees to represent associations or corporations in
personnel matters. OGE has rejected extending the exception for self­
representation to representations of employee associations “because it appears that
the same theory would necessarily apply in cases where an employee represents the
interest of any organization of which he is a mem ber.” OGE Opinion at 4. Our
conclusion that the personnel administration exception does not apply to the repre­
sentation of an employee association such as NAAUSA is consistent with this rea­
soning.
The legislative history of § 205 indicates that Congress included this exception
to allow “government employees, who are subject to disciplinary or other person­
nel action . . . to obtain a government lawyer to ensure the effective representation

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of their rights w ithout having to incur the expense of hiring private counsel.” See
Olson M em orandum at 2 (internal quotation marks omitted). The advisory opin­
ions of the O ffice o f Government Ethics construing this exception involve the rep­
resentation o f individual employees in matters affecting them individually. See,
e.g., O.G.E. Inform al Adv. Op. 85 x 1, (Jan. 7, 1985) in Informal A dvisory L etters
an d M em oran da a n d F orm al O pinions 1979-1988, at 511 (1990) {"O G E Informal
O pinions ”) (noting application of this exception to appearances before Military
Discharge Review Boards and the B oards for the Correction of Military Records
on behalf o f an individual employee). There is no indication in either the legisla­
tive history of § 205 or in those advisory opinions that Congress intended, in addi­
tion to facilitating assistance for individual em ployees facing personnel action, to
authorize the representation of employee associations in such matters.3
W hile there are no decisions considering the application of the personnel ad­
ministration exception to representation of an association or corporation, this Of­
fice has addressed the question o f whether the implied exception for self-
representation under § 205 allows an employee to represent a corporation in which
he is the sole shareholder. In that opinion, we advised an agency that § 205 would
prohibit an em ployee from acting as agent or attorney on behalf of such a corpora­
tion. C on flict o f Interest-Litigation Involving a C orporation O w n ed by G overn ­
ment A ttorn ey, 1 Op. O.L.C. 7 (1977). Analyzing the same issue, OGE has
advised that

[t]he im plied exception in section 205 for self-representation does
not extend to the representation of a distinct legal entity such as a
corporation (e.g., through an appearance by its President). M oreo­
ver, there is nothing in the legislative history on section 205 that
would indicate that a corporation wholly owned by natural persons
enum erated in 18 U.S.C. § 205 should also be regarded as being
covered by the self-representation exception.

O.G.E. Inform al Adv. Op. 84 x 14 (Oct. 31, 1984) in O G E Inform al O pinions at
493, 494 (referring to the list of im m ediate family members the exception codified
in subsection (e) perm its an employee to represent in certain circumstances).

C . S ta tu to ry E xem ptions: L a b o r R ela tio n s S tatu tes

Section 7102 o f title 5 gives “em ployee” members o f “labor organization^]”
the right “to form, join, or assist any labor organization. . . . [S]uch right [i]ncludes

3 C o n g re ss 's co n sid eratio n and enunciation o f the principles governing collective em ployee activity are
found in the F ederal L ab o r R elatio n s statutes, not in the co n flict o f interest law s As w e explain infra, w ith
the ex cep tio n o f re p resen tatio n o n behalf o f a certified labor organization, the labor statutes do not evince
any in te n t to e x em p t asso ciatio n al representation from the eth ics provisions o f title 18.

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A ssistant U nited Slates A ttorneys and the D epartm ent o f Justice

the right . . . to act for a labor organization in the capacity of a representative and
the right, in that capacity, to present the views of the labor organization to heads of
agencies and other officials of the executive branch of the G overnm ent.”
5 U.S.C. § 7102. After consulting with the Justice M anagement Division, we have
concluded that § 7102 does not itself create any right to represent a labor organi­
zation or to “bargain” with an agency. Bargaining rights are available only to labor
organizations that satisfy the requirements for certification in §§ 7111-7114. U n­
der the labor management relations statutes, “bargaining” is not limited to negotia­
tions for a binding collective agreement. A “discussion” between an agency and a
labor organization of compensation or parental leave, for example, would probably
be considered “bargaining” for these purposes. Since NAAUSA is not certified to
bargain under the relevant provisions, § 7102 confers no representational rights on
its employee members. The Justice M anagement Division agrees with this conclu­
sion.

III. The Scope o f “Covered M atter” and N A A U SA ’s Objectives

Since an employee’s representation o f NAAUSA would not be an aspect o f his
official duties, would not fall under one of the exceptions to § 205, and would not
be undertaken pursuant to any statute exempting his actions from § 205, the prohi­
bitions of the statute would apply. Section 205 penalizes any federal employee
who “acts as agent or attorney for anyone before any department, agency, court,
court-martial, officer, or civil, military, or naval commission in connection with
any covered matter in which the United States is a party or has a direct and sub­
stantial interest.” 18 U.S.C. § 205(a)(2). A “covered matter” is defined for pur­
poses of the statute as “any judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy, investigation, charge,
accusation, arrest, o r oth er particu lar m atter.” Id. § 205(h) (emphasis added).

A. Covered M atter: A Definition

Section 205 was enacted as part of the com prehensive reform of the governm ent
ethics laws in 1962. Act of Oct. 23, 1962, Pub. L. No. 87-849, 76 Stat.
1119, 1122 (“the Act”). In interpreting the term “covered matter” in § 205, it is
therefore appropriate to consider the language and structure of the other ethics
provisions contained in the same section of the Act. The portions o f the Act
codified at 18 U.S.C. §§ 203, 207-208 all restrict em ployees’ conduct in connec­
tion with “particular matters” or a list o f matters essentially identical to that in
§ 205(h). 4

4 As originally enacted, § 205 prohibited any em ployee o f the U nited States from acting as an agent or
attorney before any agency or departm ent "in connection with any proceeding, application, request for a
ruling or other determ ination, contract, claim , controversy, charge, accusation, arrest, or other p articular

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W e find the Office of Government E thics’ regulations and the opinions of this
Office construing § 208 especially helpful in interpreting the term “covered matter”
in § 205. Section 208 prohibits any executive branch officer or employee from
participating “personally and substantially” in any “judicial or other proceeding,
application, request for a ruling or other determ ination, contract, claim, contro­
versy, charge, accusation, arrest, or other particular matter” in which he has a
“financial interest.” 18 U.S.C. § 208(a). Like § 205, § 208 is designed to prevent
a governm ent em ployee from misusing his official position to advance the interest
of a non-governm ental entity. In addition, the list describing the official actions
covered by § 208 contains all but one of the terms listed as “covered matters” in
§ 205. C om pare § 208(a) (the term “ investigation” is not among the listed matters)
to § 205(h).
The O ffice of Government Ethics has issued regulations defining the term
“particular m atter” for the purposes of § 208. In those regulations, “particular
m atter” is defined as

en co m p assin g ] only matters that involve deliberation, decision, or
action that is fo c u se d upon the in terests o f specific persons, o r a
d isc rete a n d identifiable cla ss o f person s. 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 interests of such a discrete and iden­
tifiable class o f persons. T he term particular matter, however, does
n ot extend to the consideration o r adoption o f b ro a d p o licy options
th at are d ire c te d to the in terests o f a large an d diverse group o f
person s.

5 C.F.R. § 2635.402(b)(3) (1994) (em phasis added).

m atter ” 76 Stat at 1122. T he term “covered m atter” w as in tro d u ced in the 1989 am endm ents to the statute,
w hich also div id ed § 205 in to lettered subsections Ethics R eform A ct o f 1989, Pub L No. 101-194, § 404,
103 Stat. 1716, 1750. T h e la n g u ag e sanctioning a federal em p lo yee w ho acts as an agent or attorney was
placed in su b se c tio n (a), and m odified to p ro h ib it acting as an agent or attorney “in connection w ith any
co v ered m atter.” T h e list o f term s beginning w ith “proceeding, application, request for a ruling” w as m oved
to the d e fin itio n o f “co v ered m atter” in su b sectio n (h) Id.
Sectio n 203 p rohibits federal em ployees fro m seeking or accepting com pensation for any representational
service “ in relatio n to any proceeding, application, request for a ruling or other determ ination, contract,
claim , co n tro v ersy , ch arg e, accusation, arrest o r other p articu lar m atter m w hich the U nited States is a party
or has a d ire c t and su b stan tial in te re s t’’ 18 U .S .C § 203(a)(1).
S ectio n 2 0 7 (a) restricts fo rm er em ployees o f the ex ecu tiv e b ran ch from appearing before or com m unicat­
ing to federal em p lo y ees “ in connection with a particular m atter” in w hich the form er em ployee “participated
personally and su b stan tially ** A “ particular m atter” is d efin ed as including “any investigation, application,
request for a ruling or d eterm in atio n , rulem aking, contract, co n tro v ersy, claim , charge, accusation, a n est, or
ju d ic ia l o r o th e r p ro c e ed in g .” Id § 207(i)(3).

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A ssistant U nited Slates A ttorneys and the D epartm ent o f Justice

OGE has applied the same standard in construing the terms in § 205. In their
advisory opinion, OGE noted that

there may be situations where a member of an employee organiza­
tion wishes to represent the organization to the Government on a
matter which is not a “particular matter” within the meaning of
§ 205. In such a case, the representation would be made in connec­
tion with a b road p olicy m atter that is d ire cted to the in terests o f a
large and diverse group o f person s rather than one that is fo cu sed
on the interests o f a discrete an d identifiable class.

OGE Opinion at 4 (emphasis added).
With the OGE advice and regulations as guidance, we look also to our own
opinions examining the scope of the term “particular matter” as used in § 208. In
an unpublished 1990 opinion, this Office addressed that question in some detail.
M emorandum for C. Boyden Gray, Counsel to the President, from J. Michael
Luttig, Acting Assistant Attorney General, Office of Legal Counsel, Re: A p p lica ­
b ility o f 18 U.S.C. § 208 to G eneral P olicy D eliberations, D ecision s an d Actions
(Aug. 8, 1990) (“Gray M emorandum”). That analysis was driven by the principle
of ejusdem gen eris , the canon which directs that ‘“ a general statutory term should
be understood in light of the specific terms that surround it.’” Id. at 3 (quoting
Hughey v. U nited States, 495 U.S. 411, 419 (1990)). To determ ine the scope of
the term “particular matter” in § 208, it was therefore necessary to ascertain the
common characteristics of the more specific matters enumerated in the list of cov­
ered matters in § 208(a): a judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy, investigation, charge,
accusation, arrest, or other particular matter. Each of these specific terms, we con­
cluded, involves a determination of the interests o f “specific individuals or entities,
or a discrete and identifiable class of individuals or entities.” Id. at 5. “ ‘The pur­
pose of this [particular matter] language throughout the federal conflict of interest
laws is to limit application of the laws to actions focusing upon particular, distinct,
and identifiable sets o f facts with reasonably m easurable implications and conse­
quences.’” Id. at 5 n.8 (quoting R. Jordan, Ethical Issues Arising From P resen t o r
P ast G overnm ent Service, in P rofessional Responsibility' 171, 177 (1978)).
To illustrate these principles, that opinion observed:

[The] decision to pursue an administrative enforcem ent action
against a specific company or group of companies is sufficiently fo­
cused upon the interests of a specific entity or a discrete and identi­
fiable group of entities as to be comparable in particularity to an
“investigation,” a “judicial proceeding,” or a “contract” negotiation.
. . . In contrast, deliberations on the general merits of an omnibus

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bill, such as the Tax Reform A ct o f 1986, are too diffuse in their fo­
cus to be analogous to an “application,” “request for a ruling,” or a
“claim . . . In sum, whether or not the object of deliberation, de­
cision, or action constitutes a “particular m atter” will depend upon
how closely analogous the object o f deliberation, decision, or action
is to the object of a typical “judicial proceeding,” “claim ,”
“application,” or other m atter enum erated in section 208.

Id. at 6. W e also noted that “governmental action such as legislation or policy­
making that is n a rro w ly fo cu sed upon the in terests o f a specific industry o r a sp e ­
cific professio n is concerned with a ‘discrete and identifiable class’ and may
implicate section 208.” Id. at 7 (em phasis added).
A pplying these principles, we consider whether representations on behalf of
NAA U SA w ould constitute “covered m atters” under § 205.

B. A re N AAU SA’s Objectives Particular M atters?

N one o f the correspondence we have seen between NAAUSA and the EOUSA
identifies specific topics for discussion between NAAUSA and department offi­
cials. W e are of the opinion that m any of the issues listed as “ immediate objec­
tives” in N A A U S A ’s promotional materials, including those focusing upon the
terms and conditions o f employment for AUSAs, would qualify as “covered mat­
ters” under § 205.
A U SA s are a “discrete and identifiable class” by virtue of their employing
agency, their profession, and their position. See Gray M emorandum at 7
(governmental action such as legislation or policymaking that is narrowly focused
upon the interests o f a specific industry or a specific profession is concerned with a
“discrete and identifiable class”). W hether particular legislation or policy determ i­
nations constitute “covered matters” will depend upon how closely the matter fo­
cuses upon the interests o f AUSAs and upon whether the determination can be
expected to have a direct and predictable effect on those interests. The inquiry is
necessarily fact specific and not susceptible to bright line rules.
W ith that caveat, we are able to draw some general conclusions. The compen­
sation and workplace issues NAAUSA has identified as priorities for action will
generally be covered matters under § 205. Any determination or legislation that
addressed topics such as raising the AUSA salary cap, improving AUSA retirement
benefits, reinstating immunity for federal prosecutors, or allowing unscheduled
overtim e bonuses for AUSAs would be focused exclusively on the interests of the
class of AUSAs.
It is not as clear that discussions of general policy, such as the Crime Bill,
would inevitably be particular matters. It would be necessary to analyze the factual
context using the principles outlined above. For example, the question of the ap­

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 A pplication o f 18 U.S C. § 205 to C om m unications B etw een the N ational A ssociation o f
A ssistant U nited States A ttorneys and the D epartm ent o f Justice

propriate emphasis that the Department should place on prevention programs may
not sufficiently focus on the interests of AUSAs to be deemed a particular matter,
while addressing a provision that would increase the num ber of prosecutors proba­
bly would.
It may thus be possible for department officials to m eet with employee repre­
sentatives of NAAUSA to discuss certain broad policy issues. All parties should
be aware of the limitations § 205 imposes on the discussion before such a meeting,
and the agenda should be reviewed to ensure that the discussion does not reach
“covered matters.”

IV . The C ovington M em ora n d u m

Upon learning that this Office would be drafting an opinion analyzing the appli­
cation of § 205 to communications with NAAUSA representatives, N A A U SA ’s
counsel submitted a memorandum for our consideration explaining why in their
view the restrictions of § 205 do not apply. S ee Memorandum for Carol DiBat-
tiste, Director, Executive Office for U.S. Attorneys, from Sean F. Foley, Counsel
to NAAUSA, Covington & Burling (Sept. 13, 1994) (“Covington M em orandum ”).
This section addresses the reasoning of that memorandum.
NA AUSA’s counsel makes three broad arguments that § 205 should not apply
to activities undertaken on behalf of NAAUSA. First, since the interests o f the
officers and members of NAAUSA are the interests of AUSAs qua AUSAs (or
former AUSAs), the interests served by contacts between NAAUSA and depart­
ment officials do not involve the outside, private interests that Congress sought to
restrict in § 205. Covington Memorandum at 6. Second, it is argued that the con­
tacts by NAAUSA involve “generalized legal and policy issues and do not pertain
to the day-to-day departmental proceedings covered by § 205.” Id. at 7; see a lso
discussion infra at p. 4. Finally, Covington argues that interpreting § 205 to re­
strict contacts between members of a professional association and employing agen­
cies would be inconsistent with the practice of the Federal Government as
evidenced by association participation in the National Performance Review, the
activities of the member associations of the Public Employees Roundtable, and the
absence of any discussion o f § 205 in the chapters of the rescinded Federal Person­
nel Manual which encouraged agencies to cultivate a working relationship with
professional associations. Id. at 8-9.

A. “O utside In terests” a n d th e P olicy U nderlying § 2 0 5

W e agree with N AAUSA’s counsel that the purpose o f § 205 is to prohibit a
Federal employee from representing outside, private interests. W e do not agree
with his contention that NAAUSA should not be considered an “outside” interest.
As a non-profit corporation with an independent legal identity, NAAUSA is a pri­

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vate entity with interests that are distinct from those o f the Department and its
members. N AAUSA has an institutional interest in raising funds, attracting new
m embers, increasing its visibility to the public, and building a reputation as a
credible, influential body. Gaining access to governm ent decisionmakers serves
these institutional interests, which cannot be characterized as internal to the D e­
partment. N or are these institutional interests necessarily identical to its m em bers’
interests as present or form er department employees.
The structure o f § 205 contradicts the contention that Congress did not intend
for the prohibition of § 205(a) to cover contacts related to employment matters. If
this were the case, there would have been no need to include the exception for rep­
resentation o f em ployees in “personnel adm inistration proceedings” in § 205(d).
M oreover, as explained in section II.B , this exception cannot be fairly extended to
cover representing a corporation o r association, even one entirely composed of
covered employees.

B. N A A U S A ’s O bjectives a re n o t C o vered M atters

The Covington Memorandum does not address the “particular m atter” language
in § 208 and the accompanying regulations. Counsel for NAAUSA relies instead
on the language o f § 207, portions o f which forbid conduct related to “particular
m atters” w hile others apply to “any matter on which such person seeks official
action.” Id. at 5 (com paring 18 U.S.C. § 207(i)(3) to § 207(c)&(d)). Given the use
of both terms in § 207, that memorandum argues that Congress could not have
m eant for the term “particular m atter” to include “every matter in which a Federal
em ployee m ight becom e involved in a representational capacity” in § 207, nor by
analogy in §§ 205 or 203. Id.
W e agree with the conclusion that matters such as the formulation of broad
policy are not necessarily “particular m atters” under § 205. As OGE stated in their
opinion, “[i]n such a case, the representation would be made in connection with a
broad policy m atter that is directed to the interests of a large and diverse group of
persons rather than one that is focused on the interests of a discrete and identifiable
class.” OGE Opinion at 4. A definition of “particular m atter” which is limited to
actions affecting a “discrete and identifiable class” is narrower in scope than the
language “any m atter on which such person seeks official action” in § 207, and is
consistent with previous constructions of “particular m atter” under § 208 and its
regulations.
The Covington Memorandum does not specify the “legal and policy positions
affecting A U SA s” that NAAUSA is interested in communicating. Determinations
regarding the com pensation, pensions, or working conditions of AUSAs, which
have been identified as NAAUSA objectives in NAAUSA publications, would
constitute covered matters under this definition. Any agent representing NAAUSA

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 Application o f 18 U.S C § 205 to C om m unications B etw een the N ational A ssociation o f
A ssista n t U nited Slates A ttorneys an d the D epartm ent o f Justice

in the discussion of such matters should therefore not be a current federal em­
ployee.

C. In con sisten cy with F ederal G overn m en t P ractice

The Covington Memorandum argues that interpreting § 205 as restricting con­
tacts between agency officials and professional associations would be inconsistent
with the practice of several federal agencies and groups, including the participation
of associations in the National Performance Review, the activities of the Public
Employees Roundtable associations, and the guidelines provided by form er chap­
ters 251 & 252 o f the Federal Personnel M anual. W e are not familiar with the pro­
cedures of the National Performance Review or of other federal agencies with
respect to communications with professional organizations. Com pliance with
§ 205 would not necessarily preclude achieving the objectives of the National Per­
formance Review. An employee’s participation in a working group or management
committee structured along the lines of the Attorney General’s Advisory Com m it­
tee could be undertaken pursuant to his official duties. Section 205 would not re­
strict that employee from representing the views of his colleagues or of his office in
that forum.
We have reviewed the former chapter 252 o f the Federal Personnel Manual,
which did indeed note that “an agency may consult with any association or organi­
zation on matters related to its mission and programs” and that “the relationship
between the agency and the association or organization may be very close and
mutually beneficial” without any mention of § 205 and its restrictions on commu-
nications. Federal Personnel M anual, ch. 252 at 3-4 (Jan. 16, 1990). These state­
ments are consistent with our conclusion that such an organization may make its
views known to the Department or meet with Department officials through the or­
ganization’s staff or members who are not government employees. However, it is a
sufficient response to the argument in the Covington M emorandum to state that the
Department and its employees cannot avoid complying with a criminal statute sim­
ply because it is not mentioned in the Federal Personnel Manual.

C O N C L U SIO N

We agree with the Office of Government Ethics that there is no general excep­
tion for employment related matters or employee associations from the restrictions
o f § 205. A deliberation, decision, or action focused upon the interests o f AUSAs
or another discrete and identifiable class would be a “covered matter,” and ac­
cordingly, communications between a current federal employee acting as a repre­
sentative of NAAUSA and the Department on those matters would violate the
statute.

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Section 205 is not an impediment to several other kinds of communications
betw een the D epartm ent and NAAUSA or sim ilar associations. The Department is
in no way precluded from dealing with individual or groups of AUSAs in their
official capacities on matters affecting AUSAs, even if those AUSAs are coinci­
dentally m embers o f NAAUSA. Nor does § 205 place any restrictions on repre­
sentatives who are not current federal em ployees, such as NA A U SA ’s executive
director or any former AUSAs no longer employed by the government. Finally,
discussions o f broad policy directed towards a large and diverse group o f persons
would be perm issible under the statute.

W A LTER DELLINGER
A ssista n t A ttorn ey G eneral
O ffice o f L egal Counsel

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