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VAN EE v. E.P.A.

May 12, 1999

JEFFREY VAN EE, PLAINTIFF,
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John Garrett Penn, District Judge.

MEMORANDUM

Plaintiff, an employee of the U.S. Environmental Protection Agency ("EPA"), brings this action against the EPA and the U.S. Office of Government Ethics ("OGE") seeking declaratory and injunctive relief. Plaintiff desires to address federal agencies, other than the EPA, on behalf of various environmental groups on matters of public concern unrelated to his work for the EPA. Defendants maintain that such communications would violate 18 U.S.C. § 205, a criminal conflict of interest statute, and OGE ethics standards, or create the appearance of such violations. Pending before the Court are cross-motions for summary judgment.

BACKGROUND

Plaintiff Jeffrey van Ee is a GS-13 electrical engineer for the EPA. Second Amended Complaint ("Complaint") ¶ 2. His work is technical in nature; he is not involved in for the EPA. Id. For many years, plaintiff has been an active member and officer of numerous local environmental organizations in Nevada. Complaint ¶¶ 7, 8. These organizations interact frequently with agencies of the United States, which owns over 80% of the land in Nevada. Complaint ¶ 9.*fn1 On a number of occasions, plaintiff has communicated with federal agencies, other than the EPA, on behalf of local environmental groups, with the purpose to influence agency policies. Complaint ¶¶ 11, 13. Plaintiff maintains that the agency policies he sought to influence were wholly unrelated to his work at the EPA, and that he did not make the communications in his capacity as an EPA employee. Complaint ¶ 13.

In 1990, the EPA issued a reprimand to the plaintiff relating to his participation in a meeting with representatives of the Department of Interior, alleging that plaintiff had impermissibly acted as an "agent" of the Sierra Club Legal Defense Fund with respect to a "covered matter" in violation of 18 U.S.C. § 205, or had at least "created the appearance" of doing so, in violation of OGE ethics regulations. Complaint ¶ 14. Plaintiff was warned that further violations could result in disciplinary action, including termination.*fn2 Complaint ¶ 16.

In December 1993, plaintiff sought guidance from the EPA as to what communications he could engage in without contravening federal law. Complaint ¶ 18. In response, EPA informed plaintiff that he may not communicate with federal agencies on behalf of any group in an attempt to influence federal policy with respect to any "particular matter"*fn3 and that he may 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 manner. Complaint ¶ 20. Since receiving this response from the EPA in May 1994, plaintiff has significantly reduced his appearances before, and communications with, federal agencies, and has ceased being an officer of at least one organization. Complaint ¶¶ 28-33.

Plaintiff subsequently requested permission from the EPA to engage in six specific communications with other agencies.*fn4 Complaint ¶¶ 37, 38-43. After plaintiff provided the EPA with further information, the EPA responded that in its view, most of the activity suggested by plaintiff would be barred by § 205 and the remaining would "probably" be barred. Complaint ¶¶ 56-61. For example, plaintiff was told that § 205 would bar him from commenting at public hearings and in writing on behalf of the Southern Nevada Group of the Sierra Club to the Bureau of Land Management ("BLM") regarding mining, endangered species, land exchange and other issues, in anticipation of BLM's release of an Environmental Impact Statement. Complaint ¶ 38, 56; see Letter dated April 5, 1996, to plaintiff's counsel from EPA's Office of General Counsel ("April 5, 1996 Letter"), attached as Exhibit 6 to Memorandum in Support of Plaintiff's [First] Motion for Preliminary Injunction (12/9/96), at 1-6. Plaintiff would also be barred, according to the EPA, from commenting in writing and at public hearings on behalf of environmental groups, with the intent to influence the Forest Service with regard to management alternatives for a recreational forest area. Complaint ¶ 41, 58; April 5, 1996 Letter at 9-10. The EPA further informed plaintiff that § 205 might bar him from requesting, as a board member of, and on behalf of, the Nevada Wildlife Federation, permission from the U.S. Forest Service for a group camping permit for the Federation to hold its quarterly board meeting. Complaint ¶ 39, 57; April 5, 1996 Letter at 6-7. EPA explained that if "the permit request process were purely ministerial — if permits are granted, for example, on a first come-first served basis — we do not believe the request would violate § 205," but that if the process involved the "exercise of judgment" or "required persuasion," then the communication would "probably be barred." April 5, 1996 Letter at 7. Plaintiff then restated his question, asking whether "[i]n the event that a Forest Service employee does appear to have at least some discretion in the matter of issuing a camping permit, do EPA and OGE consider it a violation of 18 U.S.C. § 205 for Mr. van Ee to attempt to persuade the Forest Service employee to issue the camping permit by simply asserting its importance for the Nevada Wildlife Federation's quarter board meeting?" Id. EPA indicated that such a communication would be barred. Id. Finally, plaintiff also inquired regarding whether he could permissibly communicate his own views to BLM and the Fish and Wildlife Service, noting that he is a board member of the Nevada Wildlife Federation and that the hearings at which he would communicate his views may be attended predominantly or exclusively by members of the Nevada Wildlife Federation, and the federal government. April 5, 1996 Letter at 7-8. Plaintiff specifically asked whether in order to avoid creating an appearance of impropriety, it would be sufficient for him to state that he was speaking solely on his own behalf and not on behalf of any group. Id. at 8. EPA answered that plaintiff would not violate § 205 if his communications were "in fact his own views, made on his own, and not subject to the direction and control of the Nevada Wildlife Federation," even if plaintiff were at the same time a board member of the Nevada Wildlife Federation and even if his views are the same as those held by the organization. April 5, 1996 Letter at 8. In its response, EPA also explained that "[a]bsent any countervailing relevant facts," plaintiff's proposed communications would not violate the appearance principle. EPA explained that "countervailing relevant facts" might include plaintiff submitting his own views on Nevada Wildlife Federation stationary, or presenting Federation credentials at the meeting. Id.

Plaintiff seeks declaratory and injunctive relief. Plaintiff asserts that his communications with other agencies on his own behalf, regardless of whether he "appears" to speak on behalf of an organization, do not violate OGE standards by "creating an appearance" of violation of § 205. Complaint ¶ 92. Alternatively, if his communications do create an appearance of a violation of § 205, and therefore violate OGE standards, the OGE standards are unconstitutional. Id. ¶ 94. Plaintiff further states that his communications on behalf of organizations do not violate § 205 or OGE standards, or if they do, § 205 and/or the OGE standards are unconstitutional. Complaint ¶¶ 96, 98. In sum, "Plaintiff seeks the right in this case only to communicate with federal agencies other than EPA on behalf of the Nevada groups on a volunteer basis with respect to issues that have nothing to do with Plaintiff's work for EPA." Plaintiff's Mem. in Support of Motion at 2-3.

Statutory and Regulatory Provisions

This dispute implicates a number of statutory and regulatory provisions, which when read individually or in combination purportedly prohibit plaintiff's desired communications. Section 205 prohibits, under penalty of criminal prosecution, federal employees such as plaintiff from "act[ing] 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. § 205(a)(2).*fn5 The term "covered matter" is defined in § 205(h) to mean "any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter." OGE regulations define "particular matter" to include "matters that involve deliberation, decision, or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons." 5 C.F.R. § 2635.402(b)(3).*fn6

Finally, OGE's regulation requiring federal employees to "endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards" is also at issue in this case. That requirement, set forth at 5 C.F.R. § 2635.101(b)(14), dictates that "[w]hether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts."

Procedural Background

In his first motion for a preliminary injunction, filed along with his second amended complaint, plaintiff sought specifically to speak on behalf of the Nevada Wildlife Federation ("NWF") at a public meeting organized by the National Park Service regarding the creation of hiking trails in the Las Vegas area. See Memorandum Opinion, filed February 10, 1997, at 1. In an advisory ethics opinion, the EPA, citing 5 C.F.R. § 2635.101(b)(14), had warned plaintiff that he could speak at the meeting only on his own behalf and only if he affirmatively disavowed representation of the NWF. Id. at 2. In a Memorandum Opinion, the Court*fn7 denied plaintiff's motion, ruling that plaintiff was unlikely to succeed on the merits and that he failed to establish that he would be irreparably injured absent an injunction.*fn8 The parties subsequently filed cross-motions for summary judgment. Plaintiff also later filed a second motion for a preliminary injunction. This Court heard oral argument and took the motions under advisement. Plaintiff's second motion for a preliminary injunction recently was denied, and the cross motions for summary judgment are now before the Court.

DISCUSSION

Plaintiff seeks summary judgment arguing (1) § 205 does not cover his conduct; (2) if the Court construes § 205 to cover his conduct, the statute is unconstitutional as applied to plaintiff's speech; and (3) in any event, he cannot constitutionally be disciplined for merely creating an appearance of a violation of § 205. In their cross-motion for summary judgment and opposition to plaintiff's motion, defendants argue that § 205 prohibits plaintiff's conduct and that the law is constitutional, as is application of the appearance principle.

I. APPLICABILITY OF § 205

Plaintiff urges that § 205, by its express terms, does not apply to his conduct. He argues that the Court should narrowly construe § 205 to avoid serious constitutional questions and because it is a criminal statute and the rule of lenity applies.

Section 205 prohibits a federal employee from (1) "acting as an agent or attorney for anyone" (2) "before any department, agency, court, court-martial, officer, or civil, military, or naval commission" (3) "in connection with any covered matter in which the United States is a party or has a direct and substantial interest." Plaintiff does not dispute that he seeks to address federal departments and agencies, however he does dispute that he is acting as an "agent" of the various organizations or that he seeks to address a "covered matter." Plaintiff's position is that § 205(a) only prohibits formal legal or quasi-legal representation in formal proceedings or transactions involving the government. See Plaintiff's Mem. in Support of Motion at 4-5.

The Court starts, as it must, with the statutory language itself. Section 205 prohibits employees from acting as attorney or agent before any department or agency in connection with any "judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter." § 205(a)(2), (h). Even before looking at OGE regulations, it is clear that § 205 is far more expansive than plaintiff's proposed construction. Plaintiff argues that each of the specific terms listed in § 205(h) involves either a formal proceeding or claim against the government or a formal legal transaction with the government. Plaintiff's Mem. in Support of Motion at 6. Plaintiff also argues that the catchall phrase "or other particular matter" should be read "to refer to representation in other matters of a formal adversarial nature" and that a broader reading would render the words preceding the phrase superfluous. Id. at 8. The Court rejects plaintiff's reading of § 205(h). First, the phrase "adversarial" does not appear in the statute, and a number of the specifically listed matters are not necessarily adversarial. For example, "application[s]," and "request[s] for a ruling or other determination" are not always matters of a "formal adversarial nature." Moreover, § 205 encompasses a broad range of governmental functions, including "other proceeding[s]", requests for "determination[s]", and "controvers[ies]". There is no indication that these proceedings, determinations, or controversies are limited to ones that are legal or adversarial. Moreover, plaintiff's desire to limit application of § 205 to "formal" proceedings is not itself conclusive. It is not self-evident, for example, that public hearings, such as those at which plaintiff desires to appear, are not "formal" proceedings. Certainly if Congress had intended § 205 to be limited to "formal legal" or "formal transactional" proceedings, as plaintiff suggests, Congress would not have used such expansive language.

Plaintiff objects to OGE's regulatory definition of "other particular matter," stating that it is so expansive that it renders each of the preceding terms in § 205(h) superfluous because each of the listed terms are encompassed within the OGE definition of "other particular matter." Plaintiff's Mem. in Support of Motion at 8. Plaintiff suggests a more narrow definition, and states, as an example, that "an `appeal' or `audit' could each constitute a non-enumerated `particular matter' falling within the `other particular matter' catchall definition of `covered matter.'" Id. He argues that "[s]uch a reading would accord the catchall phrase meaning, yet not an unlimited meaning making each of the more specific preceding terms superfluous." Id. However, plaintiff's examples themselves show the fallacy of his argument: appeals certainly are encompassed by the preceding phrase "judicial or other proceeding" and an audit surely is an "investigation." Thus, the phrase "other particular matter" is not given additional meaning by encompassing plaintiff's examples.

More importantly, the phrase is not "or a particular matter," it is "or other particular matter," indicating that each of the proceeding terms are "particular matters" and any definition of "particular matter" certainly must include those terms. In ยง 205(h), Congress has merely provided examples of "particular matters" it intended to be "covered matters." Congress did not make that list exclusive, but rather provided that "covered matter" also includes "other particular matters." Plaintiff is correct that "other particular matters" should be defined as matters similar in nature to the ones specifically ...


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