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Van Ee v. EPA

Citation: 30 ELR 20325
No. No. 99-5147, 202 F.3d 296/(D.C. Cir., 02/08/2000)

The court holds that 18 U.S.C. § 205, which prohibits federal employees from acting as an agent or attorney for a private party in any "particular matter" in which the United States has an interest, is inapplicable to a U.S. Environmental Protection Agency (EPA) employee's uncompensated communications on behalf of public interest groups in response to the Bureau of Land Management's request for public comments on a proposed environmental impact statement related to public land in southern Nevada. The court first holds that Congress did not intend § 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. Thus, contemporaneous interpretation of the proscribed list of matters covered by 18 U.S.C. § 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 court next holds that legislative history clarifies that EPA misinterpreted the scope of § 205. According to EPA, the scope of § 205 turns not on the nature of the matter but on the content of the federal employee's comments. EPA's elastic approach broadens § 205 beyond the range intended by Congress, is inconsistent with the regulation on which EPA purportedly relied in enacting the section, and fails to provide federal employees with a fair warning of the scope of permissible representational activities. Whether an administrative proceeding is a "particular matter" under § 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 at issue. Only where the decision is focused on a probable particularized impact on discrete and identifiable parties are the concerns animating § 205 implicated. Thus, EPA's advice to the EPA employee was flawed because it hinged on the specific nature of the comments that the employee sought to make and their possible relationship to aspects of the decision that might ultimately affect specific groups or individuals, rather than the overall proceeding itself. For these reasons, the court concludes that the prohibitions Congress established in § 205 are not so broad as EPA stated in its advice to the employee. Neither the text nor the legislative history demonstrates a congressional intent to prevent federal employees from representing nongovernmental 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 insubstantial. Therefore, the court remands the case for an entry of declaratory judgment in the employee's favor.

Counsel for Appellant
John A. Flyger
ACLU of the National Capital Area
1400 20th St. NW, Rm. 119, Washington DC 20036
(202) 457-0800

Counsel for Appellees
Peter R. Maier
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Ginsburg and Tatel, JJ.