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 Court o f Veterans Appeals.

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

Un it e d Sta 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 Attorney 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 veterans 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 prosecuting 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 

of 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 government 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 contemplated 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 adjudication 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 serving 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 Opinion 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 section 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 dependents, 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 provided 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 veterans in Board of Veterans’ Appeals are covered by section 205).2

You suggest that the veterans’ claims process is “beneficial and paternalistic rather than adversarial” in the stages before review by the Court of 

Veterans Appeals. Nebeker Letter at 1; see also Walters v. National Ass’n of

Radiation Survivors, 473 U.S. 305, 309-11, 323-24, 333-34 (1985) (proceedings 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, section 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 of 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 of 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 of the traditional adversarial relationships between appellants and appellees do not exist 

in matters concerning veterans seeking review of their claims.” Letter to Frank Q. Nebeker, Chief 

Judge, United States Court of Veterans Appeals, from Barry P. Steinberg, el al., at 1 (July 9, 1991). In 

particular, the letter states that “the Department of Veterans Affairs (VA) and its executive, the Secretary of Veterans Affairs, the respondent in all of the Court’s cases, see themselves as advocates of 

veterans’ rights.” Id. Nevertheless, according to your letter, “Congress created the Court of 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 of 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 represented 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 amicus, 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 represent 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 circumstances 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 That a master amicus 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 ee 18 U.S.C. § 205(a)(1).

5 Ordinarily, 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 of briefs to be made on counsel for a represented party); Fed. R. Civ. P. 5(b) (service to be 

made on counsel unless otherwise ordered by court).

6 The Rules of Practice and Procedure for the Court of Veterans Appeals require the brief of 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 amicus, 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 paternalistic” 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 performed 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) (stating 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 supposed 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 opportunity 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 more precisely to 

the perceived problem of official influence: “[T]he inclusion of the term ‘aids or assists’ would permit 

a broad construction embracing 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 master amicus would raise 

the exact problem at which section 205 was aimed.

* See also Office of Government Ethics Informal Advisory Opinion 88x6 (1988) (“Generally, public 

officials are not permitted to step outside of their official roles to assist private entities or persons in 

their dealings with the Government.); Office of Government Ethics Informal Advisory Opinion 84x14

Continued

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Because section 205 is a criminal statute, its construction could be governed 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 executive branch from serving as “master amici” in the Court of Veterans Appeals.

DOUGLAS R. COX 

Deputy Assistant Attorney General

Office of Legal Counsel

'(....continued)

(1984) (section 205 “was designed to prevent federal employees from engaging in representationaltype activities on behalf of others in their dealings with the United States”); Bayless Manning, F ederal

C o n flict o f Interest Law 85 (1964) (‘T h e 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."); cf. A pplication o f 18 U.S.C. §§ 203 and 205 to Federal Em ployees

D e ta ile d to S ta te a n d L ocal G overnm ents, 4B Op. O.L.C. 498, 499 (1980) (section 205 does not forbid 

“purely ministerial contacts”).

In construing 18 U.S.C. § 207, we have observed that “[a]n agency or representational relationship 

entails at least some degree of control by the principal over the agent who acts on his or her behalf.” 

M em orandum for Michael Boudin, Deputy Assistant Attorney General, Antitrust Division, from J. 

M ichael Luttig, Assistant Attorney General, Office of Legal Counsel, Re: A pplication o f 18 U.S.C. §

207(a) to P ardon Recom m endation M ade by F orm er Prosecutor, at 6 (Oct. 17, 1990) (citation omitted). 

S e e a lso U nited S tates v. Schaltenbrand, 930 F.2d 1554, 1560-61 (11th Cir.) (defendant who had minimal role at a meeting was not an “agent” under 18 U.S.C. § 207(a) because he could not “make binding 

commitments on [the supposed principal's] b eh alf), cert, denied, 502 U.S. 1005 (1991). Although 

Proposed Rule 46 does not provide for the veteran to direct the master amicus, we do not believe that the 

possible lack of control would shield the proposed arrangement from section 205. Our opinion discussing the relevance of 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 affidavit" for a pardon applicant. In the present proposal, the master amicus would perform all the functions 

o f appellate counsel, and the differences between the master amicus and a court-appointed counsel 

would be so marginal that the arrangement might be seen as a subterfuge to avoid section 205.

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