UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


VAN EE, JEFFREY

v.

EPA


99-5147a

D.C. Cir. 2000


*	*	*


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


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




__________

n 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


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


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 




__________

n 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


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


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 




__________

n 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).




__________

n 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


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


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 




__________

n 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




__________

n 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


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.


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


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


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




__________

n 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


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




__________

n 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 




__________

n 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


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, 




__________

n 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




__________

n 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


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 




__________

n 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) 




__________

n 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


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


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


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




__________

n 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


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




__________

n 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).