Application of 18 U.S.C. § 205 to Proposed "Master Amici" ( 1992 )

Application of 18 U.S.C. § 205 to Proposed “Master Amici”
18 U .S.C . § 205 precludes attorneys in the executive branch from serving as “ m aster am ici” in
the C ourt o f Veterans A ppeals.
March 12, 1992
M e m o r a n d u m O p in io n f o r t h e C h ie f J u d g e
U n it e d S ta tes C o u r t o f V e t e r a n s A p p e a l s
You have requested the Department of Justice’s opinion whether 18 U.S.C.
§ 205 would bar an attorney employed in the government from serving as a
“master amicus” in the United States Court of Veterans Appeals. The Attor­
ney General has forwarded your request to our Office. We conclude that an
executive branch attorney’s service as a master amicus would be prohibited
by the statute.
I.
You are exploring methods for enlisting pro bono representation for vet­
erans having cases before the Court of Veterans Appeals and believe that
attorneys in the executive branch might provide that representation. Letter
for William P. Barr, Acting Attorney General, from Chief Judge Frank Q.
Nebeker, United States Court of Veterans Appeals, at 2 (Nov. 6, 1991)
(“Nebeker Letter”). As you observe, however, 18 U.S.C. § 205 by its terms
forbids an officer or employee of the executive branch, except “in the proper
discharge of his official duties,” from “actfing] as agent or attorney for pros­
ecuting any claim against the United States” or “act[ing] as agent or attorney
for anyone before any department, agency, [or] court . . . 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)(1) & (2).‘
1 A “covered matter” is defined as “any judicial or other proceeding, application, request for a ruling
or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other
particular matter.” 18 U.S.C. § 205(h).
There are several exceptions to the prohibition in section 205, only one of which is even arguably
applicable here. That exception allows an employee, “if not inconsistent with the faithful performance
o f his duties,” to represent a “person who is the subject of disciplinary, loyalty, or other personnel
Continued
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In an effort to avoid section 205’s prohibition, you propose that govern­
ment attorneys act as “master amici” to the Court of Veterans Appeals pursuant
to a rule to be adopted by the Court. A master amicus would “advise the
Court of any nonfrivolous issue capable of being raised by the [veteran]
appellant and assist the Court in understanding the Record and such issue(s).”
See Proposed Amendment to Rule 46, Rules of Practice and Procedure, U.S.
Court of Veterans Appeals (Proposed Rule 46), attached to Nebeker Letter.
You contemplate that the master amicus and the veteran would not have an
attomey-client relationship. To attempt to avoid even the appearance of
such a relationship, the Court would require service of all papers on the
veteran as well as on the master amicus. Nebeker Letter at 2. You believe
that the activities of a master amicus would not be “of the kind contem­
plated by the proscriptions of section 205,” especially in view of “the strong
government policy in favor of just compensation for our nation’s veterans
and the non-adversarial nature of the [Veterans’ Administration] claims adju­
dication process.” Nebeker Letter at 2.
IE.
We believe that a government employee serving as a master amicus would
“act[] as agent or attorney for prosecuting [a] claim against the United States”
and would “act[] as agent or attorney . . . before [a] department, agency, [or]
c o u rt. . . in connection with [a] covered matter in which the United States is
a party or has a direct and substantial interest.” 18 U.S.C. § 205(a)(1) & (2).
We therefore conclude that section 205 bars government attorneys from serv­
ing as master amici.
A.
Section 205 forbids a government employee from acting as an agent or
attorney “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).
Cases before the Court of Veterans Appeals clearly are matters in which the
United States has a direct and substantial interest, because it will have to
pay any claims upheld by the Court. You concur in this conclusion. Nebeker
Letter at 2 (“the United States has ‘a direct and substantial interest’ in the
matter of a veteran’s claim”). Moreover, the Secretary of Veterans Affairs,
in his official capacity, is a party. 38 U.S.C. §§ 7261, 7263. The United
States thus is a party in the cases. Therefore, section 205 clearly applies to
proceedings in the Court of Veterans Appeals.
'(....continued)
adm inistration proceedings." 18 U.S.C. § 205(d). Even that exception, however, does not appear
applicable to cases in the Court of Veterans Appeals. See, e.g.. Office of Government Ethics Informal
Advisory O pinion 85x1 (1985) (veterans’ claims before the Board o f Veterans’ Appeals, with limited
exceptions, could not come within the provision for “ personnel administration proceedings,” and sec­
tion 205 thus applies).
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A separate basis for applying section 205 is that the claims pressed by
appellants in the Court of Veterans Appeals are “against the United States.”
18 U.S.C. § 205(a)(1). The United States provides veterans, their depen­
dents, or their survivors with benefits such as com pensation for
service-connected disability or death. 38 U.S.C. §§ 1101-1163; see id. §
1110 (“the United States will pay to any veteran . . . compensation as pro­
vided in this subchapter”). Veterans’ claims are first presented to the Secretary
of Veterans Affairs. He rules on “all questions of law and fact necessary to a
decision . . . under a law that affects the provision of benefits . . . to veterans or
the dependents or survivors of veterans.” 38 U.S.C. § 511(a). Those rulings are
reviewable by the Board of Veterans’ Appeals, id. § 7104(a), and, in turn, the
Court of Veterans Appeals has “exclusive jurisdiction to review decisions of the
Board of Veterans’ Appeals.” Id. § 7252(a). The claims of veterans appealing
the denial of benefits through this process are “against the United States” in the
evident sense that if the United States loses, it will have to pay. See also Office
of Government Ethics Informal Advisory Opinion 85x1 (1985) (claims of veter­
ans in Board of Veterans’ Appeals are covered by section 205).2
You suggest that the veterans’ claims process is “beneficial and paternal­
istic rather than adversarial” in the stages before review by the Court of
Veterans Appeals. Nebeker Letter at 1; see also Walters v. National A ss’n o f
Radiation Survivors, 473 U.S. 305, 309-11, 323-24, 333-34 (1985) (proceed­
ings before the Board of Veterans’ Appeals are ex parte, and no government
official appears in opposition to the veterans’ claims). Whatever the nature
of the prior proceedings, however, the Court of Veterans Appeals uses an
adversary process. Its rules use much of the framework of the Federal Rules
of Appellate Procedure. The Secretary of Veterans Affairs is represented by
the General Counsel of the Department. 38 U.S.C. § 7263(a). Appellants
may be represented by their counsel. Id. § 7263(b). In cases that proceed to
a decision in the Court of Veterans Appeals, the Secretary seeks, through
this adversary process, to defend the denial of veterans’ claims. Thus, sec­
tion 205 would apply to proceedings in the Court of Veterans Appeals, even
if it did not apply to the earlier stages of the claims process.3
2 Veterans' claims are “against the United States” even though, as you state, the United States has a
“strong government policy in favor o f just compensation for our nation’s veterans.” Nebeker Letter at
2. Although the United States has an interest in the just compensation of veterans, it also has an interest
in ensuring that benefits go only to veterans who have valid claims. Moreover, we do not believe that
any policy interest is sufficient in itself to limit the terms of the prohibition in section 20S, although the
existence o f the policy interest might argue for a legislative initiative to change the statute.
3 A letter from the Court of Veterans’ Appeals Advisory Committee on Representation asserts that
“many aspects o f the traditional adversarial relationships between appellants and appellees do not exist
in matters concerning veterans seeking review o f their claims.” Letter to Frank Q. Nebeker, C hief
Judge, United States Court of Veterans Appeals, from Barry P. Steinberg, e l al., at 1 (July 9, 1991). In
particular, the letter states that “the Department o f Veterans Affairs (VA) and its executive, the Secre­
tary of Veterans Affairs, the respondent in all o f the Court’s cases, see themselves as advocates of
veterans’ rights.” Id. Nevertheless, according to your letter, “Congress created the Court o f Veterans
Appeals in the model and tradition of the federal courts of appeals." Nebeker Letter at 1. Moreover, as
noted above, the Court of Veterans Appeals uses adversary procedures. Thus, although the Secretary’s
attitude and approach may differ from that o f most litigants, the proceedings in the Court o f Veterans
Appeals are plainly adversarial.
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The master amicus would act as “agent or attorney” for prosecuting a
veteran’s claim. He would fill the gap created by the veteran’s lack of
formal legal representation. The Court would appoint a master amicus only
“where the appellant is without representation.” Proposed Rule 46. The
master amicus would be obligated to “advise the Court of any nonfrivolous
issue capable of being raised by the appellant.” Id. Only attorneys qualified
for admission to the bar of the Court could serve as master amici. In effect,
the master amicus would be responsible for presenting the arguments that
would have been made by the veteran’s lawyer if the veteran were repre­
sented by retained counsel: the master amicus would offer the arguments
that could be made for the veteran, but not those that could support the
government’s position. Thus, the master amicus would carry out virtually
all of the functions of appellate counsel for the veteran.4
To be sure, Proposed Rule 46 is obviously crafted to avoid the appearance
of a typical attomey-client relationship between the master amicus and the
veteran. Proposed Rule 46, for example, would require that papers be served
on the veteran, as well as on the master amicus, in order to suggest that no
attomey-client relationship exists. Nebeker Letter at 2.5 The master amicus,
moreover, arguably would not be the agent of the veteran in a formal sense,
because the veteran would have no right to exercise immediate control over
the master amicus.
Nevertheless, as an initial matter, we believe that the proposal would
achieve indirectly what plainly may not be done directly. The master am­
icus, an attorney to be appointed only when an appellant is without
representation, would present all of the arguments that could be made for
the appellant. Unlike a usual amicus, the master amicus would neither rep­
resent an interest of his own6 nor inform the court about discrete issues on
which the court needs expert guidance. He would instead be brought into a
case under circumstances in which a court would ordinarily appoint not an
amicus, but counsel for the unrepresented party. He would thus perform a
role almost identical to that of appointed counsel and would not function as
amicus to the court in any ordinary or traditional sense. These circum­
stances suggest that such a mechanism, as a practical matter, would be used
to supply an attorney for an otherwise unrepresented veteran. If section 205
could be evaded in this way, the path would be clear for numerous programs
4 T hat a m aster am icus would receive no pay for his services is irrelevant. Unlike 18 U.S.C. § 203(a),
section 205 is not confined to receipt or acceptance of "any compensation for representational services.”
S e e 18 U.S.C. § 205(a)(1).
5 O rdinarily, briefs are served on counsel representing a party, rather than on the party himself. See,
e .g ., U.S. Vet. App. R. 25(b) (service o f papers to be made on representative of party); Fed. R. App. P.
25(b) (service o f briefs to be made on counsel for a represented party); Fed. R. Civ. P. 5(b) (service to be
m ade on counsel unless otherwise ordered by court).
6 The Rules o f Practice and Procedure for the Court o f Veterans Appeals require the brief o f an amicus
to state “the interest of the amicus.” U .S. Vet. App. R. 29(b).
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in other contexts in which government attorneys, in effect, prosecute claims
against the government.
This danger cannot be avoided by arguing that proceedings in the Court
of Veterans Appeals might be distinguished from other, more adversarial
claims adjudications in the government. As shown above, the master am­
icus, in fact, will occupy an adversary role in proceedings before the Court
of Veterans Appeals. Indeed, if the master amicus did not occupy such an
adversary role and the appeals process followed the “beneficial and paternalis­
tic” model that you describe for those hearings that precede litigation before the
Court of Veterans Appeals, the work of the master amicus would frustrate the
statutory arrangements under which cases before the Court of Veterans Appeals
are plainly intended to be adversary proceedings. See 38 U.S.C. § 7263.
As A textual matter, section 205 reaches any person who “acts as agent or
attorney” for a claimant. Thus, section 205 focuses on the function per­
formed by the government employee, and its prohibition may cover persons
who are not formally designated as agents or attorneys for claimants. See
also United States v. Sweig, 316 F. Supp. 1148, 1157 (S.D.N.Y. 1970) (stat­
ing that “the strict common-law notion of ‘agency’ does not necessarily
exhaust the meaning of the prohibition” and that the statute should be given
“a different and wider meaning”). Functionally, the master amicus would
perform a role nearly identical to that of retained counsel. He therefore
would “act as” the attorney for the veteran - as, from your description, he is
clearly intended to do.
Like its statutory predecessor, section 205 “expresses a public policy that
it is improper for a Government employee to prosecute claims against the
Government in a representative capacity,” and it protects “the integrity of
Government actions by preventing its employees from using actual or sup­
posed influence in support of private causes.” H.R. Rep. No. 748, 87th
Cong., 1st Sess. 21 (1961) (“House Report”). Section 205 was intended to
prevent the conflict of interest thought to arise from the “opportunity for the
use of offical influence.” Id. A master amicus would have such an opportu­
nity to the same extent as retained counsel. See also S. Rep. No. 2213, 87th
Cong., 2d Sess. 11 (1962) (statute aimed at “representational activities”).7
Whatever the precise scope of the term “attorney” in section 205, we
believe that the term covers such traditional “representational activities” as
presenting the legal arguments of a party otherwise lacking representation.8
’Although section 205 is narrower than its predecessor statute, which extended to “aidfing] or
assist[ing]” in the prosecution of a claim, the change was intended to direct the statute m ore precisely to
the perceived problem o f official influence: “[T]he inclusion of the term ‘aids or assists’ would permit
a broad construction em bracing conduct not involving a real conflict of interest. However, acting as
attorney or agent, which would afford the opportunity for the use of official influence, would continue to
be-prohibited.” House Report at 21. The functions to be performed by the m aster amicus would raise
the exact problem at which section 205 was aimed.
* See a lso Office o f Government Ethics Informal Advisory Opinion 88x6 (1988) (“Generally, public
officials are not perm itted to step outside o f their official roles to assist private entities or persons in
their dealings with the Government.); Office of Government Ethics Informal Advisory Opinion 84x14
Continued
63
Because section 205 is a criminal statute, its construction could be gov­
erned by the rule of lenity, under which a statute is to be read narrowly in
order to favor a potential defendant. That rule comes into play, however,
only if “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). The rule of lenity applies only if “there is a ‘grievous
ambiguity or uncertainty in the language and structure of the Act.’” Chapman
v. United States, 500 U.S. 453, 463 (1991) (citation omitted). After resort to
the language, structure, history, and motivating policies of section 205, we
believe, for the reasons stated above, that there is no “grievous ambiguity or
uncertainty in the language and structure” of the statute and that section 205
would cover the proposed master amicus.
We therefore conclude that 18 U.S.C. § 205 precludes attorneys in the execu­
tive branch from serving as “master amici” in the Court of Veterans Appeals.
DOUGLAS R. COX
Deputy Assistant Attorney General
Office o f Legal Counsel
'(....co n tin u ed )
(1984) (section 205 “was designed to prevent federal employees from engaging in representational-
type activities on behalf o f others in their dealings with the United States”); Bayless M anning, F ederal
C o n flic t o f In te rest L a w 85 (1964) (‘T h e emphasis o f Section 205 is upon action in a representative
capacity, particularly in a situation involving direct confrontation between the government employee
and o th er governm ent employees."); cf. A p p lica tio n o f 18 U.S.C. §§ 2 03 an d 2 05 to F ederal E m ployees
D e ta ile d to S ta te a n d L o c a l G overnm ents , 4B Op. O.L.C. 498, 499 (1980) (section 205 does not forbid
“purely m inisterial contacts” ).
In construing 18 U.S.C. § 207, we have observed that “ [a]n agency or representational relationship
entails at least some degree o f control by the principal over the agent who acts on his or her behalf.”
M em orandum for M ichael Boudin, D eputy Assistant Attorney General, A ntitrust Division, from J.
M ichael Luttig, A ssistant Attorney G eneral, Office o f Legal Counsel, Re: A p p lica tio n o f 1 8 U .S.C. §
2 0 7 (a ) to P a rd o n R eco m m en d a tio n M a d e b y F o rm er P rosecutor, at 6 (Oct. 17, 1990) (citation omitted).
S e e a ls o U n ite d S ta te s v. Schaltenbrand, 930 F.2d 1554, 1560-61 (1 1th Cir.) (defendant who had mini­
m al role at a m eeting was not an “agent” under 18 U.S.C. § 207(a) because he could not “make binding
com m itm ents on [the supposed principal's] b e h a lf), cert, denied, 502 U.S. 1005 (1991). Although
P roposed Rule 46 does not provide for the veteran to direct the m aster amicus, we do not believe that the
possible lack o f control would shield the proposed arrangement from section 205. Our opinion discuss­
ing the relevance o f control under section 207 dealt with a former federal employee who performed no
traditional representational function but rather limited his participation to offering a “character affida­
vit" for a pardon applicant. In the present proposal, the m aster am icus would perform all the functions
o f appellate counsel, and the differences between the m aster amicus and a court-appointed counsel
would be so m arginal that the arrangement might be seen as a subterfuge to avoid section 205.
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