Applicability of 18 U.S.C. § 205(a)(2) to Representation Before Non-Federal Agency ( 2000 )

Applicability of 18 U.S.C. § 205(a)(2) to Representation Before
Non-Federal Agency
18 U.S.C. § 205(a)(2), w hich bars a Federal em ployee from acting as an agent or attorney before
any “ agency . . . in connection with any covered m atter in w hich the U nited States is a party
or has a direct and substantial interest,” applies only to Federal agencies and does not apply to
state agencies o r agencies o f the D istrict o f Colum bia.
January 3, 2000
M em orandum O p in io n fo r t h e D ir e c t o r
D e p a r t m e n t a l E t h i c s O f f ic e
D epartm ent of J u s t ic e
You have asked whether a state agency or an agency of the District of Columbia
comes within the term “ agency” in 18 U.S.C. § 205(a)(2), which, among other
things, bars a Federal employee from acting as an agent or attorney before any
“ 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) (1994).
We conclude that “ agency” in that provision encompasses only Federal agencies
and does not apply to state agencies or agencies of the District of Columbia.
I.
Section 205(a)(2) provides as follows:
(a) Whoever, being an officer or employee of the United States
in the executive, legislative, or judicial branch of the Government
or in any agency of the United States, other than in the proper
discharge o f his official duties —
(2) acts as agent or attorney for anyone before any depart­
ment, agency, court, court-martial, officer, or civil, military,
or naval commission in connection with any covered matter
in which the United States is a party or has a direct and
substantial interest;
shall be subject to the penalties set forth in section 216 of this title.
18 U.S.C. § 205(a)(2). Congress enacted this provision in 1962 as part of Pub.
L. No. 87-849, 76 Stat. 1119, 1122, a wholesale revision of the conflict-of-interest
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laws. Section 205 was directed at conflicts of interest arising from the “ oppor­
tunity for the use of official influence.” See H.R. Rep. No. 87-748, at 21 (1961);
see also Bayless Manning, Federal Conflict o f Interest Law 85 (1964) ( “ The
emphasis of Section 205 is upon action in a representative capacity, particularly
in a situation involving direct confrontation between the government employee
and other government employees.” ).
You have asked whether this provision prohibits a Federal government
employee from engaging in representation in connection with a covered matter
before a state agency or an agency of the District of Columbia, or whether the
prohibition only applies to representation before a Federal agency. In a prior
opinion, this Office concluded that the term ‘‘court’’ in the same provision covers
state as well as Federal courts. S ee Letter for Anthony L. Mondello, General
Counsel,- United States Civil Service Commission, from William H. Rehnquist,
Assistant Attorney General, Office of Legal Counsel at 1 (1970) (“ 1970
Opinion” ) ( “ The principle that stands clear in 18 U.S.C. 205 is that any federal
or D.C. employee is precluded from acting as an attorney to prosecute a claim
against the United States or to represent anyone in any court whatever, federal,
state or otherwise, if the United States is a party to the proceeding or if a direct
and substantial interest of the United States is involved in the proceeding.” ).1
The question before us is whether to give a similar interpretation to the term
“ agency” in the provision.
n.
A.
“ [W]e begin as we do in any exercise of statutory construction with the text
of the provision in question, and move on, as need be, to the structure and purpose
of the Act in which it occurs.” N ew York State Conf. o f Blue Cross & Blue
Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995). Because §205 itself
does not define “ agency” or offer clear guidance as to its meaning, we turn to
the statutory scheme in which it is found.
“ Agency” is defined in 18 U.S.C. § 6 as follows:
As used in this title:. . . .
The term “ agency” includes any department, independent
establishment, commission, administration, authority, board or
1The specific question raised in the 1970 Opinion was whether District o f Columbia and Federal government
attorneys could appear on a volunteer basis in District o f Columbia courts to represent indigent persons asserting
claims against the District o f Columbia Based on the language and legislative history of the provision, Assistant
Attorney General Rehnquist concluded that such representation is barred by §205 because that provision’s reference
to matters “ in which the United States is a party or has a direct and substantial interest” includes claims in which
the District o f Columbia is a party or has a direct and substantial interest. See 1970 Opinion at 2.
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Applicability o f 18 U.S.C. § 205(a)(2) to Representation Before Non-Federal Agency
bureau o f the United States or any corporation in which the United
States has a proprietary interest, unless the context shows that such
term was intended to be used in a more limited sense.
18 U.S.C. §6 (1994). By its terms, this definition applies to the word “ agency”
in 18 U.S.C. § 205(a), thereby limiting § 205(a) to Federal agencies. Section 6
applies to the use of the term throughout title 18 unless the context indicates
a more limited definition; it does not, in any event, permit a broader application
to agencies outside the Federal government. Although § 205 is part of an amend­
ment to title 18, added after the definition of “ agency” in § 6 , see ch. 645, 62
Stat. 683, 685 (1948) (definition of “ agency” ); Pub. L. No. 87-849, 76 Stat.
at 1122 (adding § 205), the general rule of statutory construction is that a provision
is to be read in its context and an amendment and the original provisions are
to be read together “ ‘as parts of an integrated whole.’ ” Republic Steel Corp.
v. Costle, 581 F.2d 1228, 1232 (6th Cir. 1978) (quoting Markham v. Cabell, 326
U.S. 404, 411 (1945)), cert, denied, 440 U.S. 909 (1979); see also 1A Norman
J. Singer, Sutherland on Statutory Construction §22.35 (5th ed. 1991) (“ Singer” )
( “ The act or code as amended should be construed as to future events as if it
had been originally enacted in that form. Provisions in the unamended sections
applicable to the original section are applicable to the section as amended in so
far as they are consistent . . . . [and] [w]ords used in the unamended sections
are considered to be used in the same sense in the amendment.” ) (footnotes
omitted).
This conclusion comports with the practice of this Office, which has often relied
on §6 as defining “ agency” for purposes of the conflict-of-interest provisions.
See, e.g., Applicability o f 18 U.S.C. § 207(a) to the Union Station Development
Corporation, 12 Op. O.L.C. 84, 84 (1988) ( “ In the past, we have looked to the
definition of ‘agency of the United States’ in 18 U.S.C. § 6 to determine if an
entity should be regarded as the United States for the purposes of the conflict
of interest laws.” ); Applicability o f 18 U.S.C. § 2 0 5 to Union Organizing Activities
o f Department o f Justice Employee, 5 Op. O.L.C. 194, 195 (1981) (noting that
in §6 “ the term ‘agency’ is defined for purposes of Title 18 generally” ); see
also Government A ttorneys’ Participation as Plaintiffs in a Suit Against the Office
o f Personnel Management, 5 Op. O.L.C. 74, 75 (1981) (“ Generally, [the second
clause of § 205] is interpreted to prohibit representational activity such as appear­
ances in court, signing pleadings or letters, and direct contact with a federal
agency on behalf of [a client].” ) (emphasis added).2
2Our conclusion also comports with relevant determinations o f the Office of Government Ethics ( “ O GE” ) See,
e.g., Letter to an Employee, 90 X 6, 1990 WL 485684 (OGE) (Apr 4, 1990) (§205 prohibits Federal employee
from representation before Federal agency but not before state or local agency); see also Memorandum from Stephen
D Potts, Director, to D esignated Agency Ethics Officials. General Counsels, and Inspectors General Regarding
Amendments to 18 U S.C § 2 0 5 and 18 U.S.C §207, 96 X 16, 1996 WL 931725 (OGE) (Aug 21, 1996) ( “ Section
205 of title 18, United States Code, prohibits an executive branch employee from acting as agent or attorney
Continued
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We might well come to a different conclusion if there were specific language
in § 205(a) manifesting an intent to give the term broader scope than the plain
meaning of the statutory definition o f “ agency” in §6.3 Section 205(a), however,
contains no explicit language broadening the definition of agency.
It also might be argued that the presence of the modifier “ of the United States”
where the term “ agency” appears in the prefatory language in § 205(a) (referring
to the covered officers and employees of Federal agencies) and the absence of
that modifier in § 205(a)(2)’s reference to “ any department, agency, court” (refer­
ring to the prohibited venues of representation) makes § 205(a)(2) applicable to
actions before state agencies. Given that Congress included an express limitation
to Federal agencies in the introductory portion of the statutory subsection, one
might infer that the absence of any such express limitation in § 205(a)(2) suggests
that § 205(a)(2) refers to a broader class of entities than does § 205(a), perhaps
including state and local agencies. To conclude otherwise would arguably render
the words “ of the United States” surplusage. See International Primate Protection
League v. Adm inistrators ofTulane Educ. Fund, 500 U.S. 72, 80 (1991) (referring
to general statutory principle that “ each word in a statute should be given
effect” ); see also 2A Singer at § 46.06.
W e do not believe, however, that such an inference is warranted. Although the
legislative history offers little guidance as to the intent of the drafters on the scope
of this term, it contains nothing indicating that inclusion of ‘‘of the United States’’
in paragraph (a) and the exclusion of that modifier in paragraph (a)(2) reflects
an advertent choice to delineate different groups of entities. A number of the prior
versions of the bill did include definitions of “ agency” applicable to §205. Some
of these expressly limited “ agency” to executive branch agencies, see Federal
Conflict o f Interest Legislation: Hearings on H.R. 302, H.R. 3050, H.R. 3411,
before any Federal department, agency, or court in connection with [a covered matter] ” ), Letter to the General
Counsel o f a Department, 96 X 11, 1996 WL 931720, at 2 (OGE) (July 5, 1996) ( “ Subject to certain exceptions,
[§ 205] prohibits a Government employee . . from acting as agent or attorney for anyone in any claim against
the U nited States or from acting as agent or attorney for anyone before any department, agency, or court of the
United States . . ” ), Letter to a Designated Agency Ethics Official„ 95 X 2, 1995 WL 855428 (OGE) (Mar.
13, 1995) (same).
On the other hand, although this issue has never been addressed directly by case law, there are conflicting dicta
in judicial opinions that discuss §205 more generally. Compare Van EE v. Environmental Protection Agency, 55
F. Supp. 2d 1, 12 (D.D.C. 1999) (concluding that §205 prohibits certain conduct before Federal agencies and is
constitutional and noting that “ [under §205] plaintiff!, a Federal employee,] is free to represent [non-governmental
organizations] in forums other than the federal government, such as state and local government” ), with Gray v.
Rhode Island D e p ’t o f Children, Youth and Families, 937 F. Supp. 153, 158 (D. R.I 1996) (reversing disqualification
o f attorney for state agency from participating in litigation against another state agency based on state ethics rules
and observing that, under Federal law, “ [§205] prohibits an employee of the United States from acting as an attorney
for anyone before any forum in which the United States is a party or has a substantial interest” )
3 It would be a different case, for example, if Pub. L No. 87-849, enacting §205 in 1962, contained a definition
o f “ agency” that differed from the definition in § 6 so as to present a situation where “ ‘the new provisions and
the . unchanged portions o f the onginal section cannot be harmonized, [in which case] the new provisions should
prevail as the latest declaration o f the legislative w ill.’ ” American Airlines, Inc. v. Remis Indus, Inc., 494 F.2d
196, 200 (2d Cir. 1974) (quoting 1A Singer §22.34). The conflict-of-interest provisions in chapter 11 of title 18,
however, although including some definitions, see 18 U.S C §201 (1994), do not contain a new definition of
“ agency.” Other terms in the provision, notably “ court,” are not defined in 18 U S C § 6 and therefore may be
read more broadly
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Applicability o f 18 U.S.C. § 205(a)(2) to Representation Before Non-Federal Agency
H.R. 3412, and H.R. 7139 Before the Antitrust Subcomm. o f the House Comm,
on the Judiciary, 87th Cong. 5 (1961) (“ Subcommittee Hearings” ) (reprinting
§2(a) of H.R. 3050), or defined “ agency” in the bill by express reference to
18 U.S.C. §6, see Subcommittee Hearings at 23 (reprinting §2 of H.R. 7139);
id. at 60 (discussing §2 of proposed bill entitled “ Executive Employees’ Stand­
ards Act” ). The deletion of any such definition or express cross-reference in the
final version appears to reflect the recognition that a definition (or explicit ref­
erence to a definition) of ‘ ‘agency’’ in the conflict-of-interest bill was unnecessary
given the existing definition in the criminal code.4 That deletion thus should not
be understood as an effort to broaden the definition of “ agency.” Moreover, the
purpose of including a definition of “ agency” in earlier versions of the bill was
to clarify which Federal agencies were to be covered, not to address coverage
of non-Federal entities.5
Additionally, the House Report on H.R. 8140, in its discussion of §205,
describes the provision as “ prohibit[ing] officers and employees of the Govern­
ment from acting as agent or attorney for anyone before a Federal agency or
a court in connection with any matter in which the United States has a direct
and substantial interest.” H.R. Rep. No. 87-748, at 9-10 (1961) (emphasis
added).6 It is unclear why the same reference does not appear in the Senate Report
in the next session on the same bill.7 In any event, §205 in H.R. 8140 — the
bill which the House Report described as prohibiting representation before “ a
Federal agency” — included “ of the United States” after “ agency” in paragraph
(a) but not in paragraph (a)(2); the language in the House Report thus indicates
ASee, e.g., Subcommittee Hearings at 45 (analyzing H R. 3050 and noting that “ (Section 2(a)] contains a definition
of the word ‘Agency’ as used in the bill. Although the definition used may suffice, the terms involved have already
been defined in section 6 o f title 18, United States Code. In pracuce this last section has operated satisfactorily
In the circumstances it would be desirable to model [the definition] upon 18 U S C 6 ” ) Arguably, cross-referencing
§6 in §205 could have unnecessarily cast doubt on the applicability o f § 6 to other provisions of Title 18 that
lack any such express cross-reference
5See, e.g.. Subcommittee Hearings at 23 (reprinting § 2 o f H.R. 7139) ( “ The terms ‘department’ and ‘agency’
shall have the meanings ascnbed to them in section 6 o f title 18, United States Code, but in no event shall they
mean any agency o f the legislative or judicial branch.’’), id. at 60 (discussing § 2 of proposed bill entitled “ Executive
Employees’ Standards A ct’’) ( “ ‘Department’ and ‘agency’ are defined as in 18 U S.C. 6. These terms are intended
to include the independent regulatory agencies.’’).
6The version o f the provision discussed in that report was substantially similar to the version that was enacted
It provided as follows
Whoever, being an officer or employee o f the United States in the executive, legislative, or judicial
branch o f the Government, or in any agency of the United States, including the District of Columbia,
otherwise than in the proper discharge o f his official duties —
(2) acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or
any civil, military, or naval commission in connection with any proceeding, application, request for a ruling
or other determination, contract, claim, controversy, charge, accusation, arrest, or other matter in which
the United States is a party or has a direct and substantial interest —
Shall be fined not more than $10,000 or imprisoned for more than two years, or both.
See H.R. Rep. No. 87-748, at 39
^See S. Rep No 87-2213, at 11 (1962), reprinted in 1962 U S C.C A N 3852, 3859 ( “ Section 205 . . extends
its bar against a Government employee’s pnvate representational activities to all matters in which the United States
is a party or has an interest Thus the section includes within its scope applications for licenses or other privileges,
criminal proceedings, and other important matters not now covered.’’).
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that use of the modifier “ of the United States” in one part should not be read
to suggest that a broader meaning of “ agency” applies whenever that modifier
is absent. Given the lack of explicit evidence of contrary intent in the legislative
history or the text of §205, we do not believe that the inferences from the use
of modifiers in § 205 is sufficient to overcome the clear directive of § 6 that
“ agency” as used in § 205(a) covers “ agencies of the United States” and not
a broader class of agencies which might include state agencies.
B.
W hether § 205(a)(2) prohibits representation by United States government
employees before an agency of the District of Columbia presents a closer question.
Section 205 is structured so that the first subsection, 205(a), sets forth a prohibi­
tion on activities by Federal employees. The second subsection, 205(b), sets forth
the prohibition on District of Columbia employees. Because it, too, uses the term
“ agency,” and does so in a context that one might assume includes agencies
of the District of Columbia, analysis of § 205(b)(2) assists in determining the scope
of § 205(a)(2). Subsection 205(b)(2) states:
Whoever, being an officer or employee of the District of Columbia
or an officer or employee of the Office of the United States
Attorney for the District o f Columbia, otherwise than in the proper
discharge of official duties —
(2) acts as agent or attorney for anyone before any depart­
ment, agency, court, officer, or commission in connection
with any covered matter in which the District of Columbia
is a party or has a direct and substantial interest;
shall be subject to the penalties set forth in section 216 of this title.
18 U.S.C. § 205(b) (1994).
The definition of “ agency” in 18 U.S.C. § 6 — which restricts an “ agency”
for purposes of that title to entities “ of the United States” — does not specify
whether “ of the United States” encompasses the District of Columbia. The legis­
lative history is unhelpful on this point. In light of this ambiguity, there are a
number of possible interpretations of “ agency” in § 205(a) and (b).8 Because the
8 For example, if “ o f the United Slates” as used in § 6 includes the District of Columbia, it could be that § 205(a)
and § 205(b) would prohibit representation before both Federal and District o f Columbia agencies by either Federal
or District o f Columbia employees, the form er in covered matters in which the United States “ is a party or has
a direct and substantial interest,” the latter in covered matters in which the District of Columbia “ is a party or
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Applicability o f 18 U.S.C. § 205(a)(2) to Representation Before Non-Federal Agency
text and legislative history of §6, as well as the text of §205, offer no clear
answer, we turn to the structure and legislative history of §205. We conclude
that the best interpretation is that “ agency” in § 205(a) applies only to Federal
agencies while “ agency” in § 205(b) applies only to District of Columbia agen­
cies. While an interpretation giving the same term different meanings in different
parts of the same provision ordinarily would be disfavored under canons of statu­
tory construction, we conclude that the structure and legislative history o f §205,
taken in conjunction with the text of §6, compels different constructions of the
term “ agency” in § 205(a) and § 205(b).
Section 205 contains a list of entities before which employees may not engage
in representational activities. The list of entities in § 205(a) is different from the
list in § 205(b). The entities that are not included in § 205(b)— “ court[s]-martial”
and “ civil, military, or naval” commissions — are, typically, solely Federal enti­
ties. This suggests that the entities listed in § 205(a) are intended to be Federal
government entities while those listed in § 205(b) are intended to be District of
Columbia government entities.
This interpretation is also supported by the minimal legislative history
addressing the question whether § 205 applies to District of Columbia entities.
Prior to 1989, the text of § 205 did not contain the current lettered paragraphs
differentiating between applicability to Federal employees and District of
Columbia employees. To the contrary, the earlier version of §205 stated that,
at least with regard to the question of which employees were covered by the
prohibition, “ agency of the United States” included the District of Columbia.
The 1988 version, like the original 1962 version of §205, see Pub. L. No. 87-
849, 76 Stat. at 1122, provided as follows:
Whoever, being an officer or employee of the United States in the
executive, legislative, or judicial branch of the Government, or in
any agency o f the United States, including the D istrict o f Columbia,
otherwise than in the proper discharge of his official duties —
has a direct and substantial interest ” O r one could conclude that the context of the prohibition in § 205(b), applying
as it does only to District o f Columbia employees, shows that the term “ agency” in §205(b) “ was intended to
be used in a more limited sense,” 18 U S C. §6, and thus applies only to representation before District of Columbia
agencies Under such an interpretation, Federal employees would be prohibited from representational activities before
both Federal and District o f Columbia agencies in covered matters where the United States “ is a party or has a
direct and substantial interest” under § 205(a)(2) but District of Columbia employees would only be prohibited from
representational activities before District o f Columbia agencies in covered matters where the District of Columbia
“ is a party or has a direct and substantial interest” under § 205(b)(2). A third possibility is that, although “ of
the United States” in § 6 includes both Federal and District o f Columbia entities, the context o f § 205(a) shows
that the prohibition therein is intended to reach only the more limited class of Federal agencies while the context
o f § 205(b) shows that it is intended to reach only the more limited class of District of Columbia agencies. It is
also possible that “ o f the United States” as used in § 6 does not reach the District of Columbia at all, in which
case “ agency” in § 205(a) would reach only Federal agencies while “ agency” in § 205(b) would either only reach
Federal, and not District o f Columbia agencies, or would reach District of Columbia agencies based on the theory
that § 205(b) is an anomalous provision to which § 6 for some reason is inapplicable.
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(2) acts as agent or attorney for anyone before any department,
agency, court, court-martial, officer, or any civil, military, or naval
commission in connection with any proceeding, application, request
for a ruling or other determination, contract, claim, controversy,
charge, accusation, arrest, o r other particular matter in which the
United States is a party or has a direct and substantial interest —
Shall be fined not more than $10,000 or imprisoned for not more
than two years, or both.
18 U.S.C. §205 (1988) (emphasis added); see also H.R. Rep. No. 87-748, at
39 (quoting substantially similar language in proposed bill setting forth original
version o f provision).
The Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, 1750,
amended that provision to make it substantially similar to the current one, sepa­
rating into distinct sections the prohibitions on Federal employees and District
of Columbia employees. The little authoritative legislative history that there is
regarding the separation of the provisions affecting Federal employees and District
of Columbia employees supports the conclusion that it creates prohibitions for
Federal employees with regard to Federal agencies and District of Columbia
employees with regard to District of Columbia agencies. In the Report of the
Bipartisan Task Force on Ethics on H.R. 3660, which eventually was enacted
as Pub. L. No. 101-194, the section-by-section analysis notes that the bill amends
§ 205 ‘‘to treat officers and employees of the District of Columbia government
separately from officers and employees of the Federal Government in the prohibi­
tion against acting as agent or attorney . . . for anyone in a matter before a Fed­
eral agency in the case of Federal employees, or a District government agency
in the case of District employees.” 135 Cong. Rec. 30,740, 30,757 (1989).
Other commentary indicates that the amendment was intended to remedy a per­
ceived problem with the existing statute, which precluded Federal employees from
appearing in District of Columbia fora. The Administration’s proposed bill,
although not adopted in its entirety, contained essentially the same language
amending §205 as was eventually included in the final legislation. In his testi­
mony, Acting Associate Attorney General Joseph Whitley explained the proposed
change to § 205 as follows:
Turning to yet another area of concern to government employees
who live in the District o f Columbia, the President’s bill removes
a senseless impediment to their taking a full part in affairs of con­
cern to their local neighborhoods. 18 U.S.C. 205 is a statute of
fairly ancient vintage which prohibits all federal employees —
including legislative staff, for example — from representing anyone
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Applicability o f 18 U.S.C. § 205(a)(2) to Representation Before Non-Federal Agency
before a federal or District of Columbia agency except in the
performance of official duties. . . . The prohibition dates from the
pre-home rule period for the District. It is a unique burden that
falls on federal employees who reside in the city of Washington
and is not shared by their fellow workers who live in any other
state. Section 111 o f the President's bill would end this unjustifiable
discrimination and allow federal employees to appear in a rep­
resentative capacity before District o f Columbia agencies. The rep­
resentation would, o f course, have to be without charge and con­
cern a matter unrelated to the em ployee’s official responsibilities.
Effects o f Federal Ethics Restrictions on Recruitment and Retention o f Employees:
Hearing Before the Subcomm. on Human Resources o f the House Comm, on Post
Office and Civil Service, 101st Cong. 35, 45 (1989) (statement of Joe D. Whitely,
Acting Assoc. Attorney General) (emphasis added). This view is echoed in the
March 1989 Report of the President’s Commission on Federal Ethics Law Reform
which recommended the same change to § 205:
As presently written, 18 U.S.C. §§203 and 205 prohibit all offi­
cers and employees o f the federal government and the D istrict o f
Columbia government from appearing before federal courts and
agencies and entities o f the D istrict government. The theory behind
§§ 203 and 205 is that an employee should serve only one master
and should not represent another entity against his primary
employer. The laws do not reflect the current separate statutory
status of the District government, however, and have the effect of
precluding federal government employees from participating in out­
side charitable activities such as providing pro bono legal services
to the poor in local courts. Another unfortunate effect is that law
students who work as paralegals or clerks in federal or District
government agencies are often precluded from participating in clin­
ical legal programs sponsored by their law schools.
To Serve With Honor: Report o f the President’s Commission on Federal Ethics
Law Reform 116 (1989) (emphasis added) (“ Commission Report” ).9 The
Commission then proceeds to voice its agreement with the suggestion of the Office
of Government Ethics that “ if there is to be any coverage of District of Columbia
employees, these sections be amended so that federal employees are prohibited
9 The statement in the quoted text that the theory behind §205 is “ that an employee should serve only one master
and should not represent another entity against his primary em ployer" might lead to the conclusion that Federal
employees should be prohibited from all covered representational activities under § 205(a), even in District of
Columbia agencies. However, other language in the Commission Report (discussed in the text, infra) disputes that
conclusion.
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only from appearing before federal agencies and courts, and D istrict o f Columbia
em ployees are proh ibited only fro m appearing before D istrict agencies and
courts." Id. (emphasis added). It recommends that § 205
be amended so that [it] (1) no longer precludefs] employees of the
District of Columbia government from appearing before federal
agencies and courts, [and] (2) no longer preclude[s] most federal
employees from appearing before District of Columbia agencies.
Id. at 115.10 While these sources are not the most authoritative types of legislative
history, they are useful because they offer some insight into the purposes under­
lying the technical amendments leading to the separation of § 205(a) and § 205(b).
The structure and legislative history of §205 show that the 1989 changes to
§ 205 were intended to differentiate between the agencies covered by the prohibi­
tion applicable to Federal employees and those covered by the prohibition
applicable to District of Columbia employees. At least for purposes of § 205, then,
“ agency” in §6, in the first instance, may be said to cover both Federal and
District of Columbia agencies. In accordance with the express recognition in §6
that this definition may be limited to a narrower scope by the context, the context
of § 205(a) shows that the term in that provision is intended to reach only the
more limited class of Federal agencies and the context of § 205(b) shows that
the term there is intended to reach only the more limited class of District of
Columbia agencies.
C.
Our conclusion that the term “ agency” in § 205(a) should be construed to apply
only to Federal agencies, and not state and local or District of Columbia entities,
is reinforced by the rule of lenity which “ demand[s] resolution of ambiguities
in criminal statutes in favor of the defendant.” Hughey v. United States, 495 U.S.
411, 422 (1990); see also Liparota v. United States, 471 U.S. 419, 427 (1985)
( “ ‘[A]mbiguity concerning the ambit of criminal statutes should be resolved in
favor of lenity.’ ” ) (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)).
That rule is particularly applicable, and a narrow construction of a criminal
prohibition is warranted, where “ a reasonable doubt persists about a statute’s
intended scope even after resort to ‘the language and structure, legislative history,
and motivating policies’ of the statute.” Moskal v. United States, 498 U.S. 103,
108 (1990) (citation omitted); se e also Chapman v. United States, 500 U.S. 453,
I0The qualification o f “ m ost” Federal employees refers to a recommended exception to this general rule for
“ the United States A ttorney’s Office because o f its unique role in prosecuting cases in both the United States District
C ourt and the District o f C olumbia Superior C ourt Employees o f the United States Attorney’s Office should continue
to be barred from appearing before entities o f the District government except in accordance with their official duties.”
Com m ission Report, at 116. This exception was incorporated into the text of the statute. See 18 U .S C . § 205(b)
22
Applicability o f 18 U.S.C. § 205(a)(2) to Representation Before Non-Federal Agency
463 (1991) (rule of lenity applicable where “ there is a ‘grievous ambiguity or
uncertainty in the language and structure of the Act’ ” ) (citation omitted). Cf.
Application o f 18 U.S.C. § 2 0 5 to Proposed “M aster A m ici” , 16 Op. O.L.C. 59,
64 (1992) (concluding that application of §205 to activities by government attor­
neys as “ master amici” before Court of Veterans Appeals is clearly prohibited
by language, structure, legislative history, and motivating policies, and therefore,
rule of lenity does not apply). Examination of the statutory structure and legislative
history yields little definitive instruction as to the scope of “ agency” in § 205(a)
and (b); hence, the rule of lenity supports narrow readings of the term.
III.
We conclude that the prohibition in 18 U.S.C. § 205(a)(2) on a Federal govern­
ment employee engaging in representation before an “ agency” in connection with
a covered matter in which the United States is a party or has a direct and substan­
tial interest applies only to representation before a Federal agency and does not
apply to such representation before state agencies or agencies of the District of
Columbia.11
CORNELIA T.L. PILLARD
Deputy Assistant Attorney General
Office o f Legal Counsel
11 O f course, representation before a state, local, or other non-Federal endty may present a different case if a
Federal employee sits on the non-Federal enUty in his or her official capacity. Such a situation, which may in
certain circumstances comprehend representation before a Federal agency for purposes o f § 205(a), is beyond the
scope of this opinion.
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