United States Office of Government Ethics, Preventing Conflicts of Interest in the Executive Branch

Legal Interpretation

In this section the U.S. Office of Government Ethics provides links to judicial opinions, opinions from the Office of Legal Counsel at the Department of Justice, and other guidance interpreting the conflict of interest laws.This section contains a searchable index of key judicial opinions about the conflict of interest statutes from the Federal courts.

categories of interpretations:


08/10/2017

Rumsey v. Department of Justice, 866 F.3d 1375 (Fed. Cir. 2017)pdf
The U.S. Court of Appeals for the Federal Circuit held in Part II of its opinion that a complainant in litigation against the United States does not violate either 18 U.S.C. § 203 or § 205 as a result of accepting attorney’s fees for the services of an attorney who is now a current Federal employee if the authority for paying such fees requires that they be paid to the complainant, not the attorney.

01/24/2013

U.S. v. Pratt, No. ELH-12-401, 2013 WL 310565 (D. Md. Jan. 24, 2013)pdf
The defendant was charged with receipt of illegal supplementation of salary from a non-governmental source in violation of 18 U.S.C. § 209(a). Denying the defendant’s motion to dismiss, the District Court of Maryland rejected the defendant’s argument that services, such as spa and salon services, could never constitute supplementation of salary. In its opinion, the court discusses the legislative history of 18 U.S.C. § 209(a) and case law interpreting the statute. For more information about the case, see the 2013 Conflict of Interest Prosecution Survey.

05/13/2011

U.S. v. Safavian, 649 F.3d 688 (D.C. Cir. 2011)pdf
Chief of Staff for the General Services Administration (GSA), David Safavian went on a golf trip to Scotland with lobbyist Jack Abramoff. He sought ethical advice from GSA’s General Counsel, but represented that Abramoff had “no business before GSA.” Safavian did not disclose that Abramoff had previously asked him about leasing two GSA-owned properties. D.C. Circuit Court of Appeals upheld four counts related to falsifying or concealing a material fact and obstruction of justice.

03/04/2011

U.S. v. Stadd, 636 F.3d 630 (D.C. Cir. 2011)pdf
The D.C. Circuit Court of Appeals held that an interim Associate Administrator of NASA violated 18 U.S.C. § 208 where he persuaded a NASA official to allocate funds to a client of a consulting firm in which he maintained sole proprietorship and he knew he held a financial interest in the matter.

08/03/2010

U.S. v. Project on Gov't Oversight, 616 F.3d 544 (D.C. Cir. 2010)pdf
The D.C. Circuit Court of Appeals held that 18 U.S.C. § 209(a) required that (1) the payor intend its payment to compensate for the employee's government work, and (2) the work at issue had to actually be the employee’s government work.

02/09/2009

U.S. v. Selby, 557 F.3d 968 (9th Cir. 2009) pdf
The Ninth Circuit Court of Appeals held that a government employee who actively participates in procuring sales that result in increased commissions for her husband violated 18 U.S.C. §208, especially where the employee knew of the likely financial outcome and acted willfully.

05/03/2006

Wolfe v. Barnhart, 446 F.3d 1096 (10th Cir. 2006)pdf
The Tenth Circuit Court of Appeals upheld 5 C.F.R. § 2635.807(a) against a First Amendment challenge and upheld OGE's interpretation that the rule prohibited an administrative law judge (ALJ) from receiving royalties for a book he co-authored about the Social Security Administration (SSA) disability adjudication process, despite the ALJ having acquired some expertise on the subject prior to working for the SSA.

08/08/2000

O'Neill v. HUD, 220 F.3d 1354 (Fed. Cir. 2000)pdf
The Federal Circuit Court of Appeals interpreted 18 U.S.C. § 205 as barring an employee from acting as agent or attorney before any government agency in any particular matter in which the U. S. is a party or has a direct and substantial interest. The Court determined that an employee does not act as "agent" for another person unless the employee has actual or apparent authority to act on behalf of that person in dealings with the government.

02/09/2000

Van Ee v. EPA, 202 F.3d 296 (D.C. Cir. 2000)pdf
The District of Columbia Circuit Court of Appeals held that 18 U.S.C. § 205(a)(2) does not prohibit uncompensated communications by a government employee, on behalf of a public interest group, to an agency at which he is not employed. Congress did not intend to bar federal employees from representing outside interests in every matter in which the U.S. has an interest.

01/28/2000

EEOC v. Exxon Corp., 202 F.3d 755 (5th Cir. 2000)
The Fifth Circuit Court of Appeals held that 18 U.S.C. § 207(a)(1) applied insofar as the attorneys' services were those of expert witnesses, but the District Court did not err in issuing an order permitting the testimony under 18 U.S.C. § 207(j)(6). Ethical rules did not bar the testimony, which was limited to publicly-known information.

08/27/1999

U.S. v. Sun-Diamond Growers, 526 U.S. 398 (1999)pdf
The U.S. Supreme Court held that "in order to establish a violation of 18 U.S.C. § 201(c)(1)(A), the government must prove a link between a thing of value conferred upon a public official and a specific 'official act' for or because of which it was given."

05/30/1995

Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995)pdf
The D.C. Circuit Court of Appeals sustained a First Amendment challenge to a portion of 5 C.F.R. § 2635.807 entitled "Teaching, speaking, and writing."

02/22/1995

U.S. v. National Treasury Employees Union, 513 U.S. 454 (1995)pdf
The U.S. Supreme Court held that the honoraria ban in 5 U.S.C. app. § 501 prohibiting federal employees from accepting compensation for making speeches or writing articles, even when the speech had no connection with the employee’s officials duties, was unconstitutional and violated the first amendment.

07/15/1994

U.S. v. Baird, 29 F.3d 647 (D.C. Cir. 1994)
The U.S. Court of Appeals for the District of Columbia Circuit held that a Reserve officer serving on active duty beyond the 130-day cap in 18 U.S.C. § 202 was a regular officer subject to 18 U.S.C. § 203 unless he fell within one of the section 202 exceptions rendering him a special employee. Section 203 does not require the government to prove specific intent and it provides fair notice of the offending conduct.

10/29/1993

U.S. v. Nevers, 7 F.3d 59 (5th Cir. 1993) pdf
The Fifth Circuit Court of Appeals held that 18 U.S.C. § 208 was not unconstitutionally vague.

05/13/1991

U.S. v. Schaltenbrand, 930 F.2d 1554 (11th Cir. 1991)
The Eleventh Circuit Court of Appeals reviewed the definition of "negotiation" under 18 U.S.C. § 208(a) and "agent" under 18 U.S.C. § 207(a). The Court held that "negotiation" covered communications where both parties had an active interest and that there was insufficient evidence to prove that defendant acted as an “agent.”

09/26/1990

U.S. v. Hedges, 912 F.2d 1397 (11th Cir. 1990)
The Eleventh Circuit Court of Appeals held that 18 U.S.C. § 208(a) was a strict liability offense and that a government official only needed to have knowledge of a conflicting financial interest when negotiating for employment.

02/27/1990

Crandon v. U.S., 494 U.S. 152 (1990)
The U.S. Supreme Court held that a pre-government service severance payment was not covered by 18 U.S.C. § 209(a). Specifically, § 209(a) requires employment status at the time of payment. 

06/27/1989

U.S. v. Nofziger, 878 F.2d 442 (D.C. Cir. 1989)pdf
The D.C. Circuit Court of Appeals held that the term "knowingly" applied to each element of former 18 U.S.C. § 207(c).

04/13/1989

U.S. v. Bordelon, 871 F.2d 491 (5th Cir. 1989)
The Fifth Circuit Court of Appeals held that a Government official violated 18 U.S.C § 208 for defrauding the U.S. of money and property and 18 U.S.C. § 209 for knowingly receiving supplementation of his salary where the official was involved in a scheme that benefited him financially due to his position in the government.

08/01/1988

U.S. v. Lund, 853 F.2d 242 (4th Cir. 1988)
The Fourth Circuit Court of Appeals held that 18 U.S.C. § 208(a) applied to a federal employee's participation, on behalf of the government, in any application or contract in which he has a conflict of interest, not just those that involved outside suppliers of goods and services to the government.

05/05/1988

U.S. v. Boeing Co., 845 F.2d 476 (4th Cir. 1988)
The Fourth Circuit Court of Appeals held that severance payments made prior to government service with the intention to supplement lower federal salaries did not violate 18 U.S.C. § 209. The court also held that section 209 did not require an injury in the form of corruption or actual conflict of interest and that an appearance of conflict was sufficient to violate section 209.

12/23/1986

U.S. v. Gorman, 807 F.2d 1299 (6th Cir. 1986)
The Sixth Circuit Court of Appeals held that an Assistant Attorney General (AG) violated 18 U.S.C. § 208 where the AG was the lead prosecutor in a check-kiting case and demanded money and employment from the bank’s representative in return for writing his report in a manner that discouraged prosecution of the creditors that hired that specific representative. 

11/17/1986

U.S. v. Coleman, 805 F.2d 474 (3d Cir. 1986)
A former high-level IRS employee started a consulting service and attended meetings with an IRS officer and taxpayers whose tax collection he had been responsible prior to leaving the IRS. The Third Circuit Court of Appeals held that the employee violated 18 U.S.C. § 207(b)(i) where his IRS appearance was an impermissible “representation.”

02/27/1986

U.S. v. Medico Industries Inc., 784 F.2d 840 (7th Cir. 1986)
The Seventh Circuit Court of Appeals held that under 18 U.S.C. § 207(a), a contract obtained by a corporation with the help of a former contracting officer (CO) was essentially the same contract that was previously awarded to the corporation with the assistance of the CO while he was still employed by the government and that section 207 prohibited such actions.

10/28/1983

CACI, Inc. v. U.S., 719 F.2d 1567 (Fed. Cir. 1983)
The Federal Circuit Court of Appeals held that an unsuccessful bidder had standing to initiate an action for an injunction against a contract awarded to another bidder where the bidder was denied the contract despite attaining the top numerical score for its proposal. However, the Court held that the bidder did not present sufficient evidence of an improper motive among the bid evaluation committee members.

09/03/1982

U.S. v. Meyers, 692 F.2d 823 (2d Cir. 1982)
The Second Circuit Court of Appeals held that FBI agents violated 18 U.S.C. § 201(c) bribery provisions, even where FBI agents made false promises while playacting in an undercover sting operation, because the statute focused on the state of mind of the bribe-player.

02/04/1981

U.S. v. Irons, 640 F.2d 872 (7th Cir. 1981)
The Seventh Circuit Court of Appeals held that the language of 18 U.S.C. § 208(a) included acts that carried a contract to completion and not just pre-contract activities.

04/16/1980

U.S. v. Conlon, 628 F.2d 150 (D.C.Cir. 1980)
The D.C. Circuit Court of Appeals held that that the trial court erred in narrowly construing 18 U.S.C. § 208(a) to save it from being unconstitutionally vague where neither the statutory terms or legislative history mandated that interpretation. The statute must be construed to show legislative intent and even interpreted with the correct legislative intent, section 208(a) was not unconstitutionally vague.

11/19/1979

Duplantier v. U.S., 606 F.2d 654 (5th Cir. 1979)pdf
The Fifth Circuit Court of Appeals held that the public financial disclosure requirements of Ethics in Government Act did not unconstitutionally invade the privacy of Federal judges.

02/26/1951

Touhy v. Ragen, 340 U.S. 462 (1951)
The U.S. Supreme Court held that an agency employee properly refused to produce certain records requested under subpoena by the Attorney General (AG). The subpoena was valid, however, as it was issued in accordance with a regulation issued by the AG and such order was appropriate as authorized by statute and not inconsistent with the law.