March 30, 2000
DO-00-015
MEMORANDUM
TO: Designated Agency Ethics Officials
FROM: Stephen D. Potts
Director
SUBJECT: Van Ee v. Environmental Protection Agency
On February 8, 2000, the United States Court of Appeals for
the District of Columbia Circuit issued its decision in Van Ee v.
Environmental Protection Agency (No. 99-5147). The decision
construes 18 U.S.C. § 205(a)(2), which bars executive branch
employees and others from "act[ing] as agent or attorney" for
others "before any department, agency, [or] court" in connection
with certain "covered matters" in which "the United States is a
party or has a direct and substantial interest." The Court
concluded that section 205(a)(2) does not prohibit the
communications which the plaintiff in the case, a career employee,
proposed to make:
We hold that § 205 is inapplicable to Van Ee's
uncompensated communications on behalf of public interest
groups in response to requests by an agency at which he
is not employed 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.
The Court's decision is available on the Court of Appeals Web
site at www.cadc.uscourts.gov.
The employee had argued that the statutory bar of
section 205(a)(2) applies only in the context of formal,
adversarial proceedings and only in connection with formal, legal
"agent or attorney" relationships. He also claimed that, if
section 205(a)(2) did apply to his activities, then the prohibition
would be unconstitutional under the First Amendment. The District
Court rejected both his arguments, 55 F.Supp.2d 1 (D.D.C. 1999),
and the employee appealed. Because the Court of Appeals determined
that the statute does not apply to the employee's proposed
communications, albeit for reasons other than those advanced by the
employee, the Court was able to avoid, and consequently did not
address, the First Amendment issue.
In view of the very narrow grounds on which further review by
the Court of Appeals or the Supreme Court may be sought, the
Government has decided not to seek further review. Accordingly,
the case will now be remanded to the District Court for entry of a
declaratory judgment in the employee's favor, in accordance with
the ruling by the Court of Appeals.
If you are asked to advise on the application of
section 205(a)(2) to facts similar to those in the van Ee case,
please consider the Court of Appeals decision and feel free to
consult with OGE.