202 F.3d 296 (D.C. Cir. 2000)
Jeffrey Van Ee, Appellantv.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, 1999Decided 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:


1
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.


2
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.

3
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.


4
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.


5
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.


6
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.


7
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.


8
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 federalagencies, 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.

9
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 issued by federal agencies other than  the employing agency.  See supra n.[2]. Interpreting the  scope of matters covered by § 205(a)(2) is an issue of first  impression in this circuit.


10
EPA implicitly determined in its 1996 advisory opinion that  none of the specific terms in § 205(h) covered the public  comment phase on a federal agency's environmental impact  statement, as required by the National Environmental Policy  Act, 42 U.S.C. § 4332(2)(C) (1994);  40 C.F.R. § 1503.1(4)  (1999).  Nonetheless, EPA, and subsequently the district  court, concluded that § 205's catchall phrase, "other particular matter," covered commentary on such EIS-related matters and similar federal land-use proposals.  See Van Ee, 55  F.Supp.2d at 6-7.  Our review of the district court's ruling on  summary judgment is de novo. Independent Bankers Ass'n of  Am. v. Farm Credit Admin., 164 F.3d 161, 166 (D.C. Cir.  1999);  Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).


11
We first by examine the text in light of the design of the  statute and the principles that a criminal statute must give  fair notice of its reach and that the court should avoid where  possible difficult constitutional questions.  But because the  text of § 205 does not precisely define the scope of covered  matters, we follow the instruction of the Supreme Court that  "it is ... appropriate, in a case that raises questions about  the scope of the prohibition, to identify the specific policies  that the provision serves as well as those that counsel against  reading it too broadly."  Crandon v. United States, 494 U.S.  152, 165 (1990).  We therefore look to the history and purposes of the statute, and conclude that Congress had a more  limited view of § 205's coverage than is evidenced by EPA's  and the district court's interpretation.

A.

12
Section 205 applies to federal employees, employees of the  District of Columbia, and "special Government employee[s],"  defined as those serving for 130 days or less in a calendar  year. See 18 U.S.C. § 202(a).  Section 205(a), applicable to  regular federal employees such as Van Ee, has two parts, one  barring an employee from assisting with, or sharing in, a  private party's claim against the United States, § 205(a)(1),  the other subjecting a federal employee to criminal or civil  penalties if the employee "acts 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).  A "covered matter" is defined in § 205(h) 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."  Id. § 205(h).


13
When considering the scope Congress intended for the  phrase "other particular matter," the court must construe  such a provision narrowly enough to avoid rendering the  preceding terms superfluous but broadly enough to avoid  rendering the catchall phrase superfluous.  See, e.g., Trans  Union Corp. v. FTC, 81 F.3d 228, 233-34 (D.C. Cir. 1996). Endeavoring to give effect to each term that Congress used,  see, e.g., Crandon, 494 U.S. at 171 (Scalia, J., concurring in  the judgment), we are persuaded that the length of the list in  § 205 serves to provide more particularized coverage than  might have been true had a single broad phrase been used. For example, superficially broad terms such as "judicial or  other proceeding" or "controversy" cannot be read to render  the remaining terms mere surplusage.  Furthermore, not  only is the scope of "other particular matter" limited by the  need to give its neighboring terms independent meaning, but  two familiar canons of construction lead us to presume that  Congress intended "other particular matter" to be limited to  administrative or judicial settings of a similar nature that  share the same attributes as the preceding terms.  See, e.g.,  Babbitt v. Sweet Home, 515 U.S. at 701-02 (applying doctrine  of nos citur a sociis or "known by the company it keeps");Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995) (same);Bazuaye v. United States, 83 F.3d 482, 484 (D.C. Cir. 1996)  (applying doctrine of ejusdem generis or "of the same kind,  class, or nature").


14
We do not agree with Van Ee's contention that the terms  preceding "particular matter" are limited to adversarial proceedings or formal legal relationships, for the conflicting  interests at which § 205 is aimed could be equally present, for  example, were a federal employee to represent a private  party in its uncontested application for a broadcast license,  patent, or other valuable benefit.  But the fact that Congress  specified that § 205 applies with respect to an "application"  or "request for a ruling or other determination" so as to  criminalize situations in which a private party seeking a  governmental benefit enlists the representational assistance  of a federal employee, who potentially could use confidential  information or abuse his office or position to assist such a  party, gives rise to the negative inference that Congress did  not intend § 205 to act as a general gag order on federal  employees.


15
Rather, looking solely to the text, we tentatively conclude  that the limiting principle guiding Congress with respect to  § 205 is that it is to apply only to matters in which the governmental decision at stake is focused on conferring a  benefit, imposing a sanction, or otherwise having a discernable effect on the financial or similarly concrete interests of  discrete and identifiable persons or entities.  These are situations in which a federal employee, acting as a private party's  agent or attorney, could be perceived as having divided  loyalty and as using his or her office or inside information to  corrupt the government's decisionmaking process.5


16
This interpretation of § 205's "particular matter" is in  accord with judicial and administrative interpretations of the  phrase as it is used in related conflict-of-interest provisions,  enacted along with § 205 as part of an "Act to strengthen the  criminal laws relating to bribery, graft, and conflicts of interest, and for other purposes," Pub. L. No. 87-849, 76 Stat.  1119 (1962) ("1962 Act").6 The circuits that have interpreted "particular matter" in these related provisions have similarly  construed the term to be limited to situations in which a real  danger of conflicting interests might be present.7  Likewise,  the Department of Justice's Office of Legal Counsel ("OLC")  has concluded that "[t]he purpose of this language, ["particular matter"], throughout the federal conflict of interest laws is  to limit application of the laws to actions focusing upon  particular, distinct, and identifiable sets of facts with reasonably measurable implications and consequences."  See Application of 18 U.S.C. § 205 to Communications Between the  Nat'l Ass'n of Assistant U.S. Attorneys and the Dept. of  Justice, 18 U.S. Op. Off. Legal Counsel 212, 219 (1994)  (internal quotations omitted).  OLC explained that "whether  the object of deliberation, decision, or action constitutes a  particular matter will depend upon how closely analogous the  object of the deliberation, decision or action is to the object of  a typical judicial proceeding, claim, application or other matter enumerated in section 208."  Id. (quotation and citation  omitted).  Both OLC and OGE have recognized that § 205  does not reach "representation ... made in connection with a  broad policy matter that is directed to the interests of a large  and diverse group of persons rather than one that is focused  on the interest of a discrete and identifiable class."  Id.  (quoting OGE advisory opinion).  In defining "particular matter"as used in § 208's ban on a federal employee's participation in a matter in which the employee has a financial  interest, OGE has codified its view of the term:


17
The term particular matter encompasses only matters that involve deliberation, decision, or action that is focused upon the interest of specific persons, or a discrete and identifiable class of persons.  Such a matter is covered by this subpart even if it does not involve formal parties and may include governmental action such as legislation or policy-making that is narrowly focused on the interest of such a discrete and identifiable persons. The term particular matter, however, does not extend to the consideration or adoption of broad policy options that are directed to the interests of a large and diverse group of persons.


18
5 C.F.R. § 2635.402(b)(3) (1999).


19
However, neither the text nor this interpretive consensus  concerning the general distinction between covered and uncovered matters fully addresses the more difficult issue presented in Van Ee's appeal, namely, to determine how particularized the focus of decision or action in a proceeding must be  for it to be a "particular matter" under § 205.  EPA advised  Van Ee that even though the public comment phase on a  resource management plan or similar land-use proposal would  appear to be a broad policymaking matter outside the scope  of § 205, if an aspect of such a plan might focus on "a discrete  and identifiable class of persons" that would turn the proceeding into a covered "particular matter." While determining the  scope of "particular matter" is fact-specific to a degree,  because § 205 is a criminal statute, it must be interpreted so  as to afford fair warning of its reach.  See Crandon, 494 U.S.  at 160;  cf. Meyers, 692 F.2d at 857.


20
Moreover, although our interpretation of § 205's scope  rests on independent grounds, it is compatible with the  principle that in interpreting the reach of the statute, a court  must bear in mind that "where a statute is susceptible of two  constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter."  Jones v.  United States, 119 S.Ct. 1215, 1222 (1999) (internal quotations  and citations omitted).  As a public employee Van Ee retains  his First Amendment rights to speak on matters of public  concern upon entry into public service.  See e.g., United  States v. National Treasury Employees Union, 513 U.S. 454,  465 (1995);  Pickering v. Board of Ed. of Township High Sch.  Dist. 205, 391 U.S. 563, 568 (1968);  Sanjour v. EPA, 56 F.3d  85, 90 (D.C. Cir. 1995) (in banc).  The district court determined that Van Ee's proposed communications were related  to matters of public concern, e.g., Van Ee, 55 F.Supp.2d at 910, and concluded that even though under § 205 Van Ee  remained free to state his own views on any matter, to join  any organization and represent it in any non-federal forum,  and to assist the person who represents an organization  before a federal agency in preparing the organization's statement, id. at 9, his First Amendment interests were nonetheless burdened by EPA's application of § 205 that "discourage[s] speech by undermining the motive and opportunity for  the speech."  Id. at 10.  We need not endorse or reject this  formulation of the First Amendment issues to agree that Van  Ee has raised a serious question about the constitutionality of  applying § 205 to his proposed communications.


21
Thus, we examine § 205 to determine whether it is susceptible of being construed so that it does not apply to Van Ee's  conduct.  Because the text of § 205 leaves ambiguous whether Congress intended to prohibit a federal employee from  acting as a representative of citizens' groups of which the  employee is a member in response to federal agencies' requests for comment on proposed land-use plans, we turn to  the history and purpose of the statute for further guidance.See National Labor Relations Bd. v. Catholic Bishop of  Chicago, 440 U.S. 490, 504 (1979).

B.

22
Section 205 was enacted in 1962 as part of what might be  viewed as a third major effort by Congress to define conflict of-interest restrictions for federal employees.  The first phase lasted until the mid-nineteenth century, during which only  limited and targeted prohibitions were in effect.  In the  second phase, public pressure led to passage of seven statutes  of broader applicability, some of which were aimed at restricting federal employees from assisting private parties in prosecuting claims against the government.  One of those, 18  U.S.C. § 283 (repealed 1962), was § 205's direct predecessor. In the third phase, Congress enacted § 205 as part of an  effort to bring greater coherence to the separately-enacted  statutes from the Civil War era in view of the changed nature  of the federal government and the Cold War era.8


23
Prior to the mid-nineteenth century, federal conflict-of interest legislation applied only to specific departments and to  specific activities, leaving noticeable gaps.9  For example, no  provision prohibited federal employees from using their position, influence, or inside knowledge to act as an agent or  attorney on behalf of private parties who had asserted claims  against the United States.  This was problematic because  before the Court of Claims was established in 1855, private  claims against the government were handled either through private acts of Congress or directly by the relevant executive  department.  See Special Comm. on the Federal Conflict of  Interest Laws, Ass'n of the Bar of the City of New York,  Conflict of Interest and Federal Service [hereinafter "New  York City Bar Report" or "N.Y. Bar Rept."] 31-32 (1960)  (footnote omitted).  Claim proceedings before the departments were often conducted ex parte and without adversary  proceedings.  Id.  This system led to influence peddling,  information selling, and the dissipation of public funds.  Id.


24
Spurred by presidential pressure and increasing public  attention to such paradigmatic conflicts of interest, Congress  enacted seven statutes that applied to the executive branch  and, in some cases, to Congress.  The first of these, S 205's  direct predecessor, was "An Act to Prevent Frauds on the  Treasury of the United States,"10 Stat. 170 S 2 (1853), as  amended, 18 U.S.C. S 283 (repealed 1962).  Section 283 prohibited an officer or employee of the United States or of the  Senate or House of Representatives from "act[ing] as an  agent or attorney for prosecuting any claim against the  United States, or aid[ing] or assist[ing] in the prosecution or  support of any such claim...."  Id.  In the 1860s, Congress  added further prohibitions, partially in response to high profile procurementscandals.10  Directly relevant here is  former 18 U.S.C. § 281, enacted at 13 Stat. 123 (1864), which  was closely related to former § 283.11  Of the remaining five  statutes, each also repealed by the 1962 Act, some shared § 283's limited application to matters involving a "claim  against the United States".12


25
As with current § 205, both former §§ 283 and 281 were  directed at the problem of divided loyalty, targeting a federal  employee's assistance to outside interests in certain dealings  with the government.  Section 283 focused on representational assistance by an executive or legislative branch employee,  other than a Member of Congress, in connection with claims  against the government, regardless of whether the federal  employee received compensation.  Section 281 reached a  broader range of assistance, covering not just prosecution of  claims against the United States but also the "rendering [of]  service" in relation to administrative proceedings in which the  United States has an interest, but applied only where the  federal employee received compensation for his or her services.  Cf. United States v. Meyers, 692 F.2d 823, 856-57 (2d  Cir. 1982).


26
With the dramatic growth of the federal government, the  nature of federal service changed, giving rise to new potential  conflicts of interest.  See N.Y. Bar Rept. at 131-34.  In the  post-New Deal era, and after commencement of the Cold  War, increasing demand by administrative agencies and the


27
In addition to these branch-wide provisions, Congress periodically enacted agency-specific prohibitions on outside interests.  See, e.g., 24 Stat. 383 (1887) (ICC);  38 Stat. 717 (1914)(FTC);  46 Stat. 797 (1930) (FPC);  48 Stat. 1066 (1934) (FCC);52 Stat. 980 (1938) (CAB).  For exemptions, see H.R. Rep. No.86-2068 at 3-4 (1960).military for specialized government employees, particularly  scientists and attorneys, led to increased opportunities for  such employees to capitalize on government service in the  private sector.  See e.g., S. Rep. No. 87-2213 at 6-7 (1962);H.R. Rep. No. 86-2068 at 5-7 (1960);  107 Cong. Rec. 6836  (Apr. 27, 1961).  Restrictive judicial interpretations of the  Civil War-era statutes made it apparent that legislation would  be required to respond to emerging forms of conflicts of  interest.13 In addition, the increasing number of potential  temporary government employees who rejected such positions for fear that the conflict-of-interest provisions, such as  the revolving door provision, would impede their return to the  private sector led Congress to adapt federal conflict-of interest law to such "special employees".  See, e.g., Hearings  on H.R. 302, H.R. 3050, H.R. 3411, H.R. 3412, and H.R. 7189  Before the Antitrust Subcomm. (Subcomm. No. 5) of the  Comm. on the Judiciary of the House of Representatives,  87th Cong. 106-09, 120-22 (1961) [hereafter House Subcomm.  Hearings].


28
Thus Congress enacted the 1962 Act in response to the  judicial narrowing of the Civil War-era statutes and the  changing nature of federal service in an attempt to modernize, clarify, and bring greater coherence to the separately enacted Civil War-era statutes.  See Roswell B. Perkins, The  New Federal Conflict-of-Interest Law, 76 Harv. L. Rev. 1113, 1115-17, 1122-23 (1963).  The 1962 Act was aimed at a host of  concerns, and § 205 is merely one strand of an intricate  scheme of regulations governing federal employees' conflicts  of interest.14  The history of the 1962 Act reflects congressional focus on direct conflicts of interest, misuse of confidential government information, and abuse of position, confirming both that Congress intended to broaden the predecessor  representational-assistance provision, former § 283, beyond  claims for money or property, and also to limit the breadth to  other situations in which a private party might improve its  chances of obtaining a benefit or avoiding a sanction if its  agent or attorney in such a proceeding were a federal employee.


29
The final version of § 205 emerged as an amalgam of three  similar bills introduced during the 87th Congress.  See generally House Subcomm. Hearings.  With respect to the representational-assistance provision, each bill expanded the coverage of former § 283 beyond claims against the government by  importing the list of proscribed proceedings that had been  covered by the compensated assistance provision, former  § 281, into what is now § 205.15 Although some language in the legislative history suggests an understanding that this  textual change would cover "all" matters coming before a  federal agency, see H.R. Rep. No. 87-748 at 20, it is readily  apparent that Congress had a more limited view of its task,  inserting two additionalterms--"application" and "request  for a ruling or other determination", House Subcomm. Hearings at 53-54--to cover specific types of proceedings in which  a real conflict of interest might arise.  See H.R. Rep. No. 87748 at 21;  see also S. Rep. No. 87-2213 at 5.


30
In the 1962 Act, Congress did not intend § 205 to extend  beyond situations in which there was a real conflict of interest  or which potentially presented an opportunity for abuse of  office, misuse of confidential information, or similar conflicts  of interest to arise.  Congressional reports explained that the  final bill limited § 205 to situations in which the federal  employee acts as an "agent or attorney" rather than merely  "aids or assists" a private party because "inclusion of the  term 'aids or assists' would permit a broad construction  embracing conduct not involving a real conflict of interest."Id.16  Also, Congress narrowed the catchall phrase from other matter" to "other particular matter," in order "to  emphasize that the restriction applies to a specific case or  matter and not to a general area of activity."  H.R. Rep. No.  87-748 at 20.17


31
Contemporaneous interpretation of the proscribed list of  matters covered by § 205 also indicates that the section was  not intended to apply to a federal employee's volunteer  activities on behalf of environmental groups because such  activities would not give rise to the type of divided loyalty at  which the statute was aimed.  The authors of the New York  City Bar Report wrote:


32
Whether an employee is intermittent or regular, his [orher] political and other organizational affiliations and activities will not be affected by the section except in the most unusual situations.  An employee who is a member of an organization to protect wildlife, for example, will not run afoul of section 4 [the Bar bill's very similar version of § 205], even if he [or she] actively helps the organization in its efforts to influence federal policy in the direction of better wildlife protection.


33
N.Y. Bar Rept. at 209.


34
In sum, when crafting § 205, Congress did not intend to  bar a federal employee from representing outside interests in  all matters in which the United States has an interest. Instead, Congress imported the list of proscribed activities  from the former compensated-assistance provision (§ 281) into § 205, updated that list by extending coverage to an  "application" and "request for a ruling or other determination," and narrowed the catchall phrase, "other matter", in  former § 281 to "other particular matter."

C.

35
This history clarifies EPA's misinterpretation of the scope  of § 205.  Under EPA's approach, the scope of § 205 turns  not on the nature of the matter but on the content of the  federal employee's comments.  For example, EPA advised  Van Ee that because some of the comments he expected to  make as a spokesperson in relation to the BLM's plan for  managing public lands in southern Nevada 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 proposed acquisition  of environmentally-sensitive lands in which a local mining  company had an interest, those comments would be in relation to a covered "particular matter." By contrast, EPA  advised, had Van Ee sought to convey to BLM only a  generalized concern about preserving sufficient recreational  space, Van Ee's acting as spokesperson would not have been  in relation to a "particular matter" even though the proceeding--public comment on BLM's resource management plan-was the same.


36
EPA's elastic approach broadens § 205 beyond the range  intended by Congress, is inconsistent with the OGE regulation on which EPA purportedly relied, and fails to provide  federal employees with fair warning of the scope of permissible representational activities.  Rather, whether an administrative proceeding is a "particular matter" under § 205 is  determined by the nature and focus of the governmental  decision to be made or action to be taken as a result of the  proceeding.  Only where the decision is focused on a probable  particularized impact on discrete and identifiable parties are  the concerns animating § 205 implicated.  Thus, EPA's advice to Van Ee was flawed insofar as it hinged upon the  specific nature of the comments that Van Ee sought to make  and their possible relationship to aspects of the decision that might ultimately affect specific groups or individuals, rather  than upon the overall focus of the proceeding itself.


37
Even to the extent that some of Van Ee's comments would  have concerned proposed actions likely to have a discernible  impact on the interests of identifiable parties, see supra n. 2,  the focus of the decisions to be made are of a much broader  nature.  For example, the focus of decision following the  public comment phase on a proposed EIS what to include in  the final EIS is not on the interests of particular groups or  individuals.  As the court has recently reiterated, the heart of  the EIS is the requirement that an agency rigorously explore  and objectively evaluate the projected environmental impacts  of all reasonable alternatives for completing the proposed  action.  City of Alexandria v. Slater, 198 F.3d 862, 866 (1999) (citing 40 C.F.R. § 1502.14).  Moreover, even  the types of proposed actions for which the relevant EIS's  were issued focused on diverse sets of interests, such as how  to reconcile or balance recreational, conservation, and commercial interests in a land-use plan covering considerable  territory.


38
In other words, the concreteness that § 205 requires by  way of a "particular matter" is absent when a public interest  group is responding to an agency's call for public comment on  a broad plan for land management.  Van Ee does not seek,  for example, to participate in proceedings involving the granting of a license to operate a concession on public lands or  some similar benefit.  Rather, the proceedings in which Van  Ee seeks to participate call for the provision of the Nevada  groups' views as to the potential environmental impacts of  proposed action under consideration.  Although in a very  broad sense such proceedings may serve to advance the  interests of a public interest group to the extent that the  agency adopts its views or moderates proposals to address  considerations of importance to the public interest group, this  is hardly the situation that caused Congress to enact a  criminal statute to preserve the integrity of governmental  service and decisionmaking.  The OGE regulation expressly  reflects the understanding that "the term 'particular matter'  does not extend to the consideration or adoption of broad policy options that are directed to the interests of a large and  diverse group of persons," 5 C.F.R. § 2635.402(b)(3).  The  proceedings at issue here simply do not present the problems  that Congress sought to cure as nothing in the record remotely suggests that Van Ee has a real conflict of interest or is  misusing government information or otherwise abusing his  position.


39
EPA also failed to acknowledge the implications of its  restrictive interpretation when it opined that the First  Amendment was not implicated because Van Ee could express his own views and even prepare the views of the public  interest groups of which he is a member and explain those  views to the media.  Allowing Van Ee to do everything except  identify himself publicly as the author of a group's commentary, would appear to foster secret influence peddling seemingly oblivious to congressional concerns to avoid the misuse  of governmental information, office, or position.


40
For these reasons, we conclude that the prohibitions Congress established in § 205 are not so broad as is stated in  EPA's advice of April 5, 1996, to Van Ee.  Neither the text  nor the legislative history demonstrates a congressional intent to prevent federal employees from representing non governmental interests without compensation in proceedings  in which broad policy issues are at stake because the causal  link giving rise to a conflict of interest would be too insubstantial.  Cf. S. Rep. No. 87-2213 at 5-6.  The legislative  record confirms that Congress intended § 205 to have a  broader reach than its predecessor but also that § 205 would  not reach the EIS and similar land-use proceedings in which  Van Ee seeks to participate as an agent of the environmental  groups of which he is a member.18  The interpretive consensus lends further support to our conclusion that § 205 is  properly understood to apply to those matters in which a  federal employee's representational assistance could potentially distort the government's process for making a decision  to confer a benefit, impose a sanction, or otherwise to directly  effect the interests of discrete and identifiable persons or  parties.  As a result, § 205 leaves career federal civil servants free to voice the concerns of citizens' groups of which  they are members on broad policy issues because the likelihood that such representational assistance could divide the  loyalty of the employee or distort the decision making process  is minimal.  Our interpretation of § 205's scope fully addresses Congress' concerns about conflicts of interest that may  arise when federal employees assist outside interests in governmental proceedings, while leaving federal employees such  as Van Ee free to play a representational role for groups of  which they are a member in certain settings, and also has the  salutary effect of avoiding potentially grave constitutional  concerns that would arise were § 205 construed to cover Van  Ee's acting as a spokesperson for the groups of which he is a  member.  See Rust v. Sullivan, 500 U.S. 173, 190 (1991);  see  also Jones v. United States, 119 S.Ct. at 1228.


41
Accordingly, without reaching Van Ee's constitutional challenges to § 205 or the appearance regulation, 5 C.F.R.  § 2635.101(b)(14), we reverse the judgment of the district  court and remand the case so that the district court may  award declaratory relief to Van Ee consistent with this opinion.19



Notes:


1
 These include the Southern Nevada Group of the Toiyabe  Chapter of the Sierra Club ("Sierra Club");  Nevada Wildlife Federation ("NWF");  and the Nevada Outdoor Recreation Association  ("NORA") (collectively "the Nevada groups").


2
 Van Ee proposed:  (1) to give written and verbal comments on  behalf of the Sierra Club on a BLM environmental impact statement ("EIS") regarding a plan to manage all public lands in  Southern Nevada;  (2) to attend meetings with and/or hearings  before BLM and the U.S. Fish and Wildlife Service concerning a  proposed habitat plan for the desert tortoise (including meetings to  which NWF was exclusively invited);  (3) to give written and verbal  comments on behalf of NORA or the Sierra Club on the Forest  Service's master plan for the Spring Mountain Recreational Area;(4) to give written and verbal comments on behalf of NORA on the  "scoping phase" of BLM's EIS for the Red Rock National Conservation Area;  (5) to comment on behalf of the Sierra Club on the  Southern Nevada Water Authority's plans to expand the water  system feeding Las Vegas;  and (6) to comment for the Sierra Club  on the siting of a BLM-proposed hydroelectric facility.  Van Ee also  proposed to request a group camping permit from the Forest  Service for NWF.  It is unclear whether this last request remains  at issue because EPA indicated such a request would be permissible  to the extent that approval of the permit was solely ministerial.  In  the absence of record evidence that a concrete dispute remains, we  decline to address whether such a permit request would be prohibited by § 205, and if it were, whether Van Ee's First Amendment  rights would be implicated.


3
 Noting that no regulations had been promulgated to interpret  § 205, EPA purported to rely for its advice to Van Ee on 5 C.F.R.  § 2635.402(b)(3), an OGE regulation interpreting "particular matter" as used in 18 U.S.C. § 208, a related conflict-of-interest provision prohibiting federal employees from participating in matters in  which they have a financial interest.


4
 Although Van Ee urges this court to hold broadly that § 205  does not bar "federal employees ... from speaking on behalf of  others to federal agencies in connection with issues of public  concern outside the context of legal or administrative claims or  proceedings or formal, adversarial legal relationships such as contracts," the examples in his letter giving rise to EPA's response of  April 5, 1996, are more confined.  See supra n.2. The broadly  phrased relief sought by Van Ee encompasses a variety of types of  communications, many of which he may have no interest in pursuing  and some of which may fall within § 205 and thus require consideration of his First Amendment challenge.  Because the court will not  reach a constitutional question if the "issue has 'not been formulated to bring it into focus, and the evidence has not been offered or  appraised to decide it,' " Fortson v. Dorsey, 379 U.S. 433, 439 (1965)  (citation omitted), our review is limited to the type of communication in which Van Ee has concretely indicated he wishes to engage.


5
 Section 205 distinguishes between a "covered matter" applicable to regular federal employees and a "covered matter involving a  specific party or parties" applicable to special Government employees.  Compare § 205(a)(2) with § 205(c).  Section 203 makes a  similar distinction and § 207, applicable to former employees, also  uses the "specific party or parties" limitation.  See 18 U.S.C.  §§ 203(c);  207(a)(1)(C), (a)(2)(C). This distinction suggests potentially broader coverage of the relevant provisions for regular employees.  The legislative history indicates that the "specific party or  parties" language was added to render the provisions inapplicable  to rule makings with respect to special Government and former  employees.  See 108 Cong. Rec. 21981 (Oct. 3, 1962);  S. Rep. No.  2213 at 2-3 (1962).  However, this distinction is muddled by the  addition of § 207(i), which specifically defines "particular matter" to  include "rulemaking" while § 207 elsewhere retains the "specific  party or parties" limitation, in the Ethics Reform Act of 1989, Pub.  L. No. 101-194, 18 U.S.C. § 207(i).  Assuming that § 205 covers at  least some rulemakings with respect to regular employees and none  with respect to special Government employees, that fact sheds little  light on whether Congress intended § 205(a)(2) to extend beyond  rulemakings to the types of administrative settings at issue in the  instant case.


6
 Other than in the 1962 Act, the phrase "particular matter"  appears in certain agency-specific conflict-of-interest provisions, some of which were enacted after the 1962 Act.  See 7 U.S.C.  § 2008j(f)(10)(A) (prohibiting members of Board of Directors of the  National Sheep Industry Improvement Center from voting on interested transactions);  7 U.S.C. § 5903(j)(1) (same for Board members  of the Alternative Agricultural Research and Commercialization  Corporation);  40 U.S.C. app. § 108(a) (similar provision for members of Appalachian Regional Commission);  43 U.S.C. § 1355 (postemployment provision applicable to former high-ranking Department of Interior employees).


7
 See United States v. Wallach, 979 F.2d 912, 920-21 (2d Cir.  1992);  United States v. Williams, 705 F.2d 603, 622 (2d Cir. 1983);cf. United States v. Meyers, 692 F.2d 823, 857 (2d Cir. 1982);United States v. Medico Indus., Inc., 784 F.2d 840, 843-44 (7th Cir.  1986);  see also CACI, Inc. v. United States, 719 F.2d 1567, 1576  (Fed. Cir. 1983).


8
 Subsequent to § 205's enactment in 1962, Congress broadly  amended federal conflict-of-interest law in the Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (1978) and the  Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716,  1750-51 (1989), and Congress made minor amendments to § 205 in  Pub. L. No. 101-280 S 5(c) (1990) and in Pub. L. No. 104-177 S 2  (1996).  These changes do not affect the issues presented in the  instant case.


9
 An early statute prohibited the Secretary of the Treasury  from having certain private financial interests or engaging in certain transactions, such as purchasing public lands, that could conflict with his departmental responsibilities.  See 1 Stat. 67 (1789), as  amended, Rev. Stat. § 243 (1875), 5 U.S.C. § 243 (repealed 1962).By contrast, prior to the Civil War-era, other department heads and  Members of Congress were free to represent private parties in  court or before commissioners so as to prosecute claims against the  United States or to speculate in the market for public lands.  See  Cong. Globe, 32d Cong., 2d Sess. 289-90 (1853) (remarks of Rep.  Stephens (Ga.)).


10
 For example, in one scheme, military employees purchased  defective rifles from the government for $3.50 each and then resold  the rifles to the government for $22.  See N.Y. Bar Rept. at 34-35.


11
 Section 281 prohibited receipt of "compensation for any services rendered or to be rendered ... in relation to any proceeding,  contract, claim, controversy, charge, accusation, arrest, or other  matter" in which the United States has an interest.  18 U.S.C.  § 281 (repealed 1962) (emphasis added).  Prior to 1948, the list  ended with "other matter or thing."  E.g. United States v. Booth,  148 F. 112, 114 (C.C.D. Or.1906);  see also Bayless Manning,  Federal Conflict of Interest Law 52 n.71 (1964).


12
 The statutes repealed by the 1962 Act were:  18 U.S.C. § 216  (enacted in 1862, prohibiting compensation for assisting in procurement of government contracts);  id. S 434 (enacted in 1863, requiring disqualification from matter in which employee had personal  interest);  5 U.S.C. § 99 (enacted in 1872, prohibiting former executive branch employee from prosecuting claim that had been pending  at the time of his federal employment);  18 U.S.C. § 284 (composite  of 1919 and 1944 acts as criminal analog to 5 U.S.C. § 99);  id.  § 1914 (enacted in 1917, prohibiting compensation of government  employees from outside sources).  See Pub. L. No. 87-849 SS 1(c),  2, 3, 76 Stat. 1119, 1127-28 (1962);  see also Crandon, 494 U.S. at  160-63.


13
 See, e.g, United States v. Bergson, 119 F.Supp. 459 (D.D.C.  1954), where the district court dismissed the indictment of a former  Justice Department attorney for his post-employment representation of corporate clients seeking pre-merger approval from the  Department on the ground that 18 U.S.C. § 284 (repealed 1962) did  not apply because such representation was not in connection with a  "claim against the United States."  See also Hobbs v. McClean, 117  U.S. 567, 575 (1886);  United States v. 679.19 Acres of Land, 113  F.Supp. 590, 593-94 (D.N.D.1953).  Although the district court in  Bergson construed the term "claim" in the context of § 284, Congress and the President understood the holding to apply to § 283 as  well.  See, e.g., 107 Cong. Rec. 6836 (Apr. 27, 1961) (message from  the President);  H.R. Rep. No. 87-748 at 21 (1961);  S. Rep. No. 872213 at 5.


14
 For example, surrounding § 205 are provisions making it a  crime to bribe a federal employee or for such employee to accept a  bribe (§ 201;  cf. 18 U.S.C. § 217, 26 U.S.C. § 7214(a)(9) (1994));  to  compensate a federal employee for his or her assistance to anyone  involved in a proceeding in which the United States has a direct and  substantial interest (§ 203);  for certain federal employees to engage in certain post-employment conduct involving the United  States (§ 207);  for an employee to participate in any decision or  proceeding relating to a matter in which she has a financial interest  (§ 208), and for an employee to receive any "contribution to or  supplementation of salary" from a non-governmental source (§ 209).Cf. United States v. Sun-Diamond Growers of California, 119 S.Ct.  1402, 1408-09 (1999);  see also Crandon, 494 U.S. at 158.


15
 See House Subcomm. Hearings at 7-8, 19, 22-23.  The list  initially imported, in slightly modified form, into early drafts of  § 205 was "any proceeding, contract, claim, controversy, charge,  accusation, arrest or other matter."  Id. at 19 (rearranging and  omitting "investigation" and "judicial or other proceeding" from the § 281 list).  The bills drafted by the Administration and in the New  York City Bar Report would have grouped these matters under an  umbrella phrase, "transaction involving the Government," indicating  an understanding that the list covered those administrative settings  in which private interests stood to experience ascertainable gains or  losses resulting from an administrative decision.  See id. at 7, 23.In 1989 Congress amended § 205 to group the terms under the  umbrella phrase "covered matter," defined by the same list of  matters as had been in subsection (a)(2), in newly added subsection  (h).  See Ethics Reform Act of 1989 § 404, Pub. L. No. 101-194, 103  Stat. 1716, 1750-51 (1989).


16
 Similarly, with respect to the revolving door provision, the  Senate Judiciary Committee opined:
Whatever the merit of this prohibition at a time when the Government departments were fewer in number and much smaller in size, it makes very little sense today.  Thus, it is hard to advance a reasonable justification for precluding a former Commerce Department attorney, for 2 years or for any length of time, from representing before the Treasury Department a private client who has a claim for an income tax refund with which the attorney never had any connection while in Government service .S. Rep. No. 87-2213 at 5-6.


17
 When the House Judiciary Committee reported the bill, "other matter" had become "other particular matter" in the new compensated-assistance provision, § 203, without reflecting a corresponding change in § 205.  See H.R. Rep. No. 87-748 at 1, 37, 39.However, in the version of the bill on which the entire House voted,  "particular" was added before "matter" in § 205 as well.  See H.R.  8140, as amended, 87th Cong. at 11 (Jul. 20, 1961).


18
 Van Ee also contends that § 205 does not apply to his  communications because he would not communicate as the "agent or  attorney" of the groups of which he is a member.  See 18 U.S.C.  S 205(a)(2).  Relying in part on this court's prior interpretation of  "agent or attorney," see Bailey, 498 F.2d at 679, the district court  rejected his contention.  See Van Ee, 55 F.Supp.2d at 7-8.  Our  holding that § 205 does not apply to Van Ee's proposed communications does not rest on Van Ee's proposed construction of "agent or  attorney."  See Refine Const. Co. v. United States, 12 Cl.Ct. 56, 61  (1987);  Community for Creative Non-Violence v. Reid, 490 U.S.  730, 739 (1989);  Neder v. United States, 119 S.Ct. 1827, 1840 (1999);Restatement (Second) of Agency S 1(1) & cmt. a, SS 12-14;  Cf.  United States v. Sweig, 316 F. Supp. 1148, 1156-57 (S.D.N.Y. 1970).


19
 Van Ee also sought injunctive relief, but the record before  this court does not provide a basis for such relief.  Compare 28   U.S.C. § 2201 with Amoco Prod. Co. v. Village of Gambell, Alaska,  480 U.S. 531, 546 n. 12, 107 S. Ct. 1396, 94 L.Ed.2d 542 (1987);Washington Metropolitan Area Transit Comm'n v. Holiday Tours,  Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).


