Van Ee v. Envt'l Protection Agency

• Decision Date: 08 February 2000
• Docket Number: No. 99-5147,99-5147
• Parties: (D.C. Cir. 2000) Jeffrey Van Ee, Appellant v. Environmental Protection Agency and U.S. Office of Government Ethics, Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 296

202 F.3d 296 (D.C. Cir. 2000)

Jeffrey Van Ee, Appellant v. Environmental Protection Agency and U.S. Office of Government Ethics, Appellees

No. 99-5147

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 8, 1999

Decided February 8, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia(No. 95cv02079)

John A. Flyger argued the cause for appellant. With him on the briefs were Arthur B. Spitzer and Cynthia L. Taub. Seth A. Goldberg entered an appearance.

Peter R. Maier, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were David W. Ogden, Acting Assistant Attorney General, Michael Jay Singer and Michael E. Robinson, Attorneys, and Wilma A. Lewis, U.S. Attorney.

Before: Ginsburg, Rogers, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

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 connection with such groups' public comments on draft environmental 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. § 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 association. 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 § 205, 5 C.F.R. § 2635.101(b)(14) (1999), is unconstitutionally vague as applied.

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. Accordingly, we do not reach Van Ee's contentions concerning the First Amendment's application to § 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 hazardous 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 regularly with these agencies regarding wildlife and public lands issues; none of his communications was related to his responsibilities 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 land transfer and the appropriate treatment of endangered desert tortoises, on the ground that under 18 U.S.C. § 205 he had impermissibly acted as an "agent" of the Sierra Club Legal Defense Fund in the meeting. EPA referred the matter to the United States Attorney's Office, which did not prosecute Van Ee. The complaint further alleged that Van Ee was warned that additional violations of § 205 could result in disciplinary action, including termination of his employment. Thereafter, through counsel, Van Ee sought guidance from EPA on how he might continue his volunteer activities without violating § 205.

As is discussed more fully below, § 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 "investigation", "contract", or "other particular matter" in which the United States has an interest. See 18 U.S.C. § 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 include 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 § 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 conservation proposals. Alternatively, the complaint asserts that the statute unconstitutionally denies him his First Amendment 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 his job.

After filing his complaint, Van Ee continued to seek guidance from EPA. In 1996 he requested an advisory opinion from EPA, see 5 C.F.R. § 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, § 205.²For example, in response to a proposed environmental impact statement, see 42 U.S.C. § 4332(2)(C), issued by BLM concerning its plan for managing public lands in southern Nevada, Van Ee sought to provide comments on behalf of the Sierra Club related to mining, endangered species, land exchange, 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 interest.

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 § 205 if the focus were on the 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. § 205 because they would in some way focus on "discrete and identifiable persons" 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 preparing their remarks for presentation to federal agencies, and could even respond to press inquiries about the views expressed by these organizations. Since receiving this EPA advice, Van Ee has significantly reduced his volunteer appearances and communications with federal agencies, and he is no longer an officer of the Sierra Club.

II.

It is EPA's interpretation of the scope of § 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 challenges 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 1996 advisory letter.⁴ Consequently, the issue on appeal is whether Congress intended § 205 to prohibit, on penalty of fine or imprisonment, see 18 U.S.C. § 216, a career federal employee from presenting the views of citizens' groups of which the employee is a member, without receiving compensation, in response to requests for public comment on proposed land-use plans...