EFTA01098305.pdf

Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 1 of 31 ATTACHMENT TO MOTION TO INTERVENE OR IN THE ALTERNATIVE FOR A SUA SPONTE RULE 11 ORDER EFTA01098305 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 2 of 31 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-Civ-Marrailohnson JANE DOE #1 AND JANE DOE #2, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. BRUCE E. REINHART, Intervenor INTERVENOR'S MOTION FOR SANCTIONS Comes now, Bruce E. Reinhart, intervenor and party in interest (hereinafter "Movant"), and moves this Honorable Court to impose sanctions under Federal Rule of Civil Procedure 11(b) and 28 U.S.C. 1927 based on intentional or reckless false, bad faith, vexatious factual and legal assertions made about Movant in Paragraphs 52 and 53 of Plaintiff's Motion for Finding of Violations of the Crime Victims' Rights Act (the "Motion") [DE 48]. BACKGROUND The instant cause of action involves claims by Plaintiffs that Defendant violated the Crime Victims Rights Act (CVRA), 18 U.S.C. §3771, in its handling of a criminal investigation of Jeffrey Epstein ("Epstein") and others. The investigation ultimately resulted in a non-prosecution agreement between the United States and Epstein. On EFTA01098306 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 3 of 31 March 21, 2011, Plaintiffs filed their Motion.' Numbered paragraphs 1-50 of the Motion are a chronological review of the background of the Epstein investigation, including the interactions among the victims' counsel, counsel for Epstein, the Government and the FBI. Paragraph 51 asserts that at all relevant times it was feasible for the Government to provide certain notifications to Plaintiffs. Without attempting to make any connection to the asserted violation of the CVRA, Paragraphs 52 and 53 falsely allege, that Movant violated Florida Bar rules and Department of Justice regulations by representing Epstein's employees in civil litigation after Movant retired from the United States Attorney's Office for the Southern District of Florida ("Office"). They also falsely allege that Movant, while still employed by the Office engaged in improper conduct relating to Epstein. These allegations are made in bad faith, unreasonably, without reasonable inquiry into the law and facts, vexatiously, and for the improper purpose of gratuitously harassing Movant. LEGAL STANDARDS Federal Rule of Criminal Procedure II Federal Rule of Civil Procedure 11 states that a lawyer signing any pleading in federal court is certifying that: mto the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (I) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; I Movant was not served with a copy of the pleading. Movant first saw the pleading on April 20, 2011. 2 EFTA01098307 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 4 of 31 (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Fed. R. Civ. P. 11(b). Rule 11 uses an objective standard. Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003). The analysis is whether "a reasonable attorney in like circumstances could believe that his actions were factually and legally justified." Id (citing Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1294 (11th Cir. 2002)). Violations of Rule 11 are punishable by monetary and non-monetary sanctions against both the lawyer filing the pleading and the lawyer's client. Fed. R. Civ. P. 11(c). 28 U.S.C. &l927 Title 28, United States Code, Section 1927 states: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expense, and attorneys' fees reasonably incurred because of such conduct. To impose sanctions under § 1927, the Court must find that the attorney's conduct is "'tantamount to bad faith."' Amlong & Amlong, 500 F.3d 1230, 1239 (11th Cir. 2007) (quoting Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991)). "[T]he attorney must knowingly or recklessly pursue a frivolous claim." Id. at 1242. The finding of bad faith does not turn on "the attorney's subjective intent, but on the attorney's objective conduct." Id. at 1239. The standard is "whether, regardless of the attorney's subjective intentions, the conduct was unreasonable and vexatious when measured against an objective standard." Hudson v. Int 1 Comp. Negotiations, Inc., 499 F.3d 1252, 1262 (11th Cir. 2007). 3 EFTA01098308 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 5 of 31 DISCUSSION Paragraphs 52 and 53 contain inflammatory claims that are false, misleading, and irrelevant to the relief sought in the Motion. See generally Declaration of Bruce E. Reinhart (attached as Exhibit 1 and incorporated by reference). They ultimately allege, "[Movant's] representations [of Epstein's employees] are in contravention of Justice Department regulations and Florida bar rules. Such representations also give, at least, the improper appearance that Reinhart may have attempted to curry [sic] with Epstein and then reap his reward through favorable representation." Plaintiff's Motion at ¶53. They do not cite to any particular bar rule or regulation that they believe was violated. They do not explain how the alleged conduct contributed to the Department of Justice's alleged violation of the CVRA. Nor do they explain how the alleged conduct is imputable to the Department of Justice. These otherwise slanderous accusations against a non-party are false. They were made in bad faith, without a factual inquiry reasonable under the circumstances, or elementary research into the legal basis for the allegations. Paragraphs 52 and 53 omit the following true facts, which Plaintiffs should have investigated before making their allegations: (1) Movant did not participate in any way in the Office's investigation of Epstein, (2) after leaving government employment, Movant did not represent Epstein before the Department of Justice, nor did Movant communicate with the Department of Justice about Epstein, and (3) Movant did not use confidential information obtained during his Government employment to the detriment of the United States. See Declaration of Bruce E. Reinhart at ¶111-12, 17. Rather than conducting the required inquiry, Plaintiffs simply make two irresponsible and unsupported leaps. First, they incorrectly conclude that merely because 4 EFTA01098309 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 6 of 31 Movant worked in the Office at the time of the Epstein case, Movant must have been involved in the internal decisionmaking at the Office about Epstein. Second, they incorrectly conclude that because Movant later represented Epstein's employees in private civil litigation, Movant must have used confidential Government information improperly in his representation ofEpstein's employees, and for his own financial gain. It is apparent that Plaintiffs conducted no factual inquiry to substantiate their accusations before making them. They never contacted Movant. On information and belief, they did not speak to any current or former personnel from the Office or the FBI who were familiar with the structure of the West Palm Beach Office or with Movant's role (or lack thereof) in the Epstein investigation. Had they done so, they would have learned that there were approximately 20 Assistant United States Attorneys in the West Palm Beach Office during the relevant time period. See Declaration of Bruce E. Reinhart at 1110. They would have learned that Movant was not assigned to the same section as the prosecutor handling the Epstein matter. Id. They would have learned that Movant had a different chain of supervision from the prosecutor assigned to the Epstein matter. Id. They would have learned that Movant had no involvement in the Epstein investigation. See Declaration of Bruce E. Reinhart at ¶¶11-12. Further, Plaintiffs did not conduct an adequate inquiry into the applicable Department of Justice regulations. As discussed below, to violate the relevant regulations, a former employee must appear before, or communicate with, the Department of Justice, about a particular matter in which the former employee participated personally and substantially while employed at the Department of Justice. See 5 C.F.R. §2641.201(a). The Motion contains approximately 50 paragraphs of a 5 EFTA01098310 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 7 of 31 detailed historical litany of the interactions among the parties to the Epstein matter. The Motion does not allege that Movant participated at all, let alone personally and substantially, as a government employee in the Epstein investigation. The Motion does not allege that that Movant subsequently appeared before, or communicated with, the Department of Justice about Epstein. To the contrary, the Motion alleges only that, after leaving the Office, Movant represented Epstein's employees in litigation with non- Governmental third parties. Had Plaintiffs conducted rudimentary research into the applicable regulations, they would have known that any allegation that Movant violated these regulations was frivolous. Movant Did Not Violate Any Florida Bar Rule Relevant Florida Bar Rules The potentially applicable Florida Bar rules are Rule 4-1.6(a) (Confidentiality of Information), Rule 4-1.9 (Conflict of Interest; Former Clients), and Rule 4-1.11 (Special Conflicts of Interest for Former and Current Government Officers and Employees). For purposes of these rules, the U.S. Department of Justice was Movant's client during his employment in the Office. Movant did not violate any of the bar rules. Rule 4-1.6(a) states: A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent. Rule 4-1.6 was not violated because Movant did not know any confidential information about the Epstein matter, so none could be revealed. Rule 4-1.9 states: A lawyer who has formerly represented a client in a matter shall not thereafter: EFTA01098311 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 8 of 31 (a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests. of the former client unless the former client gives informed consent; or (b) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known; or, (c) reveal information relating to the representation except as these rules would permit or require with respect to a client. Rule 4-1.9 was not violated because Movant never represented the United States in the Epstein matter. Rule 4-1.11 states in pertinent parts: (a) A lawyer who has formerly served as a public officer or employee of the government: (1) is subject to rule 4-1.9(b); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. (c) A lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. (d) A lawyer currently serving as a public officer or employee: (I) is subject to rules 4-1.7 and 4-1.9; and 7 EFTA01098312 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 9 of'31 (2) shall not: (A) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent; or (B) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially. Rule 4-1.11(a) was not violated because Movant did not participate personally and substantially in the Epstein matter. Rule 4-1.11(c) was not violated because Movant did not have any confidential Government information within the meaning of the rule, so he did he use any confidential Government information about a third party to the detriment of that third party. Rule 4-1.11(d) was not violated because Movant did not participate personally and substantially in the Epstein matter. Movant Did Not Violate Department of Justice Regulations Department of Justice Regulations The Department of Justice regulation containing post-employment restrictions, 5 C.F.R. §2641.201, states in most pertinent part: (a) Basic prohibition of 18 U.S.C. 207(a)(1). No former employee shall knowingly, with the intent to influence, make any communication to or appearance before an employee of the United States on behalf of any other person in connection with a particular matter involving a specific party or parties, in which he participated personally and substantially as an employee, and in which the United States is a party or has a direct and substantial interest. (i) Participate: To "participate" means to take an action as an employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or other such action, or to purposefully forbear in order to affect the outcome of a matter . . . An employee does not participate in a matter EFTA01098313 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 10 of 31 merely because he had knowledge of its existence or because it was pending under his official responsibility. Movant did not violate 5 C.F.R. §2641.201 because he did not participate personally and substantially in the Epstein matter as a Government employee. He did not appear before r the United States on behalf of Epstein after leaving Government employment. He did not communicate with the United States on behalf of Epstein after leaving Government employment. He represented Epstein's employees in civil cases in which the Government was not a party. It is clear from the face of the regulations that Movant's representing Epstein's employees in civil matters not involving the Government did not violate §2641(a). In fact, had Plaintiffs and their counsel properly investigated the facts and law, they would have seen that §264I (a) would have permitted Movant to represent Epstein, himself, openly against the Department of Justice. Movant did not. The allegation that Movant violated Department of Justice regulations is frivolous. 2 A complete copy of this regulation is attached to this Motion as Exhibit 2. 9 EFTA01098314 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 11 of 31 CONCLUSION The allegations in Paragraph 52 and 53 of the Motion are false, made in bad faith, and made without sufficient inquiry into the law and facts. They are irrelevant to whether the United States Attorney complied with the CVRA. Notably, the Motion does not attempt to tie the allegations against Movant to the alleged violation of the CVRA. The allegations are included gratuitously in the Motion solely to harass Movant in a forum where the accusations are not legally slanderous. The allegations are made without reasonable pre-filing inquiry into the facts or law. This Court should issue an Order to Show Cause why sanctions should not be imposed under Rule II or 28 U.S.C. §1927. Respectfully submitted, /s/ Bruce E. Reinhart BRUCE E. REINHART,P.A. Florida Bar If 10762 250 S. Australian Avenue, Suite 1400 West Palm Beach, Florida 33401 (561) 202-6360 fax (561) 202-6976 [email protected] CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Intervenor's Motion For Sanctions was served on all counsel of record by CM/ECF on 2011. /s/Bruce Reinhart BRUCE REINHART 10 EFTA01098315 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 12 of 31 EXHIBIT 1 EFTA01098316 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 13 of 31 DECLARATION OF BRUCE E. REINHART I, Bruce E. Reinhart, make the following declaration pursuant to 28 U.S.C. § I746. 1. I am a licensed attorney in solo practice as Bruce E. Reinhart, P.A. My office is located at 250 S. Australian Avenue, Suite 1400, West Palm Beach, Florida, 33401. 2. I am a member in good standing of the bars of the states of Florida, Pennsylvania, and New Jersey. I am also admitted to the practice in the United States District Court for the Southern District of Florida, the U.S. Court of Appeals for the Eleventh Circuit, the U.S. Supreme Court, and several other federal courts. 3 I graduated from Princeton University in 1984 with a B.S.E. in civil engineering cum laude. I graduated from the University of Pennsylvania Law School in 1987, cum laude. I also served as an Editor of the University of Pennsylvania Law School. 4. After graduating from law school, I served as judicial law clerk to the Honorable Norma L. Shapiro, Unites' States District Judge for the Eastern District of Pennsylvania. 5. In 1988, I began working at the Criminal Division of the United States Department of Justice in Washington, D.C., through the Attorney General's Honors Program. From 1988-1994, I worked in the Public Integrity Section of the Criminal Division. While working there, I received two Special Achievement Awards for Meritorious Acts and Service from the Department of Justice. EFTA01098317 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 14 of 31 Page 2 of 4 6. While at the Public Integrity Section, I was involved in investigating and prosecuting people who violated federal conflict of interest and post- employment statutes. I attended multiple training conferences where federal conflicts of interest laws and regulations were discussed. 7. From in or about July 1994 to on or about May 1, 1996, I served as Senior Policy Advisor to the Undersecretary of the Treasury for Enforcement at the United States Department of the Treasury. In that position, I helped the Undersecretary, the Deputy Secretary, and the Secretary of the Treasury to develop law enforcement policies for U.S. Customs, ATF, Secret Service, and IRS Criminal Investigations. I also acted as principal staff liaison to the Deputy Attorney General, the FBI and the other Department of Justice law enforcement agencies. For my service, I was awarded the Undersecretary for Enforcement's Award for Exceptional Service. 8. I am the former Vice Chair of the Palm Beach County Bar's Professionalism Committee. I am the former President of the Palm Beach County Chapter of the Federal Bar Association. I currently serve as an Ethics Commissioner on the Palm Beach County Commission on Ethics. 9. From May 1, 1996 to January 1, 2008, I served as an Assistant United States Attorney in the Southern District of Florida, assigned to the West Palm Beach office. From in or about July 1998 to in or about October 2002, I was a Supervisory Assistant United States Attorney. From October 2002 to January 2008, I was a non-supervisory Assistant United States Attorney handling my own docket of cases. EFTA01098318 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 15 of 31 Page 3 of 4 10. At all relevant times, the Office had approximately 20 Assistant U.S. Attorneys assigned to the West Palm Beach location. The prosecutor assigned to the Epstein case, Ann Marie Villafana, and I were assigned to different sections within the Office. We reported to different supervisors. 11. I did not participate in any way in the Office's investigation of Epstein. I was not involved in any of the Office's decisionmaking with regard to the Epstein matter. 12. I never learned any confidential, non-public information about the Epstein matter. 13. In late December 2007, I had an "exit meeting" with Dexter Lee, the Office's ethics officer. As part of that meeting, Mr. Lee reviewed with me the Department of Justice's post-employment restrictions. Based on our conversation, it was my understanding that I could work on any matter so long as I had not participated in it personally and substantially as a Government employee. I also understood that I could not use non-public Government information for any purpose. 14. After opening my private practice on January 2, 2008, I was retained to represent Sarah Kellen for purposes of civil depositions in causes of action to which the United States was not a party. At a later time, I was retained to represent several other members of Mr. Epstein's staff in their civil depositions. 15. After leaving the Office, I did not participate in any of the negotiations over Mr. Epstein's non-prosecution agreement. EFTA01098319 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 16 of 31 Page 4 of 4 16. After leaving the Office, I did not communicate with the Office, in person or in writing, about any matters relating to possible criminal charges against Mr. Epstein. 17. Because I did not have any, I did not share non-public confidential information about the Epstein investigation with any of Epstein's attorneys. 18. Prior to the filing of Plaintiff's Motion for Finding of Violations of the Crime Victims' Rights Act, neither Mr. Edwards, nor Judge Ca.qgell, nor anyone on their behalf contacted me to determine if the allegations in Paragraphs 52 and 53 of that Motion were true. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 3, 2011. Bruce E. Reinhart EFTA01098320 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 17 of 31 EXHIBIT 2 EFTA01098321 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 18 of 31 § 2641.201 Permanent restriction on any former employee's..., 5 C.F.R. § 2641.201 Code of Federal Regulations Title 5. Administrative Personnel Chapter XVI. Office of Government Ethics Subchapter B. Government Ethics Part 2641. Post-Employment Conflict ofInterest Restrictions (Refs & Annos) Subpart B. Prohibitions 5 C.F.R. § 2641.201 § 2641.20i Permanent restriction on any former employee's representations to United States concerning particular matter in which the employee participated personally and substantially. Effective: July 25, 2008 Currentness (a) Basic prohibition of 18 U.S.C. 207(a)(1). No former employee shall knowingly, with the intent to influence, make any communication to or appearance before an employee of the United States on behalf of any other person in connection with a particular matter involving a specific party or parties, in which he participated personally and substantially as an employee, and in which the United States is a party or has a direct and substantial interest. (b) Exceptions and waivers. The prohibition of 18 U.S.C. 207(aX1) does not apply to a former employee who is: (I) Acting on behalf of the United States. See § 2641.301(a). (2) Acting as an elected State or local government official. See § 2641.301(b). (3) Communicating scientific or technological information pursuant to procedures or certification. See § 2641.301(c). (4) Testifying under oath. See § 2641.301(0. (Note that this exception from § 2641.201 is generally not available for expert testimony. See § 2641.301(0(2).) (5) Acting on behalf of an international organization pursuant to a waiver. See § 2641.301(h). (6) Acting as an employee of a Government-owned, contractor-operated entity pursuant to a waiver. See § 2641.301(i). (c) Commencement and length ofrestriction. 18 U.S.C. 207(a)(1) is a permanent restriction that commences upon an employee's termination from Government service. The restriction lasts for the life of the particular matter involving specific parties in which the employee participated personally and substantially. (d) Communication or appearance— (I) Communication. A former employee makes a communication when he imparts or transmits information of any kind, including facts, opinions, ideas, questions or direction, to an employee of the United States, whether orally, in written correspondence, by electronic media, or by any other means. This includes only those communications with respect to which the former employee intends that the information conveyed will be attributed to himself, although it is not necessary that any employee of the United States actually recognize the former employee as the source of the information. (2) Appearance. A former employee makes an appearance when he is physically present before an employee of the United States, in either a formal or informal setting. Although an appearance also may be accompanied by certain communications, an appearance need not involve any communication by the former employee. WestlawNext' 2011 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA01098322 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 19 of 31 § 2641.201 Permanent restriction on any former employee's..., 5 C.F.R. § 2641.201 (3) Behind-the-scenes assistance. Nothing in this section prohibits a former employee from providing assistance to another person, provided that the assistance does not involve a communication to or an appearance before an employee of the United States. Example 1 to paragraph (d): A former employee of the Federal Bureau of Investigation makes a brief telephone call to a colleague in her former office concerning an ongoing investigation. She has made a communication. If she personally attends an informal meeting with agency personnel concerning the matter, she will have made an appearance. Example 2 to paragraph (d): A former employee of the National Endowment for the Humanities (NEH) accompanies other representatives of an NEH grantee to a meeting with the agency. Even if the former employee does not say anything at the meeting, he has made an appearance (although that appearance may or may not have been made with the intent to influence, depending on the circumstances). Example 3 to paragraph (d): A Government employee administered a particular contract for agricultural research with Q Company. Upon termination of her Government employment, she is hired by Q Company. She works on the matter covered by the contract, but has no direct contact with the Government. At the request of a company vice president, she prepares a paper describing the persons at her former agency who should be contacted and what should be said to them in an effort to increase the scope of funding of the contract and to resolve favorably a dispute over a contract clause. She may do so. Example 4 to paragraph (d): A former employee of the National Institutes ofHealth (NIH) prepares an application for an NIH research grant on behalfof her university employer. The application is signed and submitted by another university officer, but it lists the former employee as the principal investigator who will be responsible for the substantive work under the grant. She has not made a communication. She also may sign an assurance to the agency that she will be personally responsible for the direction and conduct of the research under the grant, pursuant to § 2641.201(e)(2Xiv). Moreover, she may personally communicate scientific or technological information to NIH concerning the application, provided that she does so under circumstances indicating no intent to influence the Government pursuant to § 2641.201(O(2) or she makes the communication in accordance with the exception for scientific or technological information in § 2641.30I(e). Example 5 to paragraph (d): A former employee established a small government relations firm with a highly specialized practice in certain environmental compliance issues. She prepared a report for one of her clients, which she knew would be presented to her former agency by the client. The report is not signed by the former employee, but the document does bear the name of her firm. The former employee expects that it is commonly known throughout the industry and the agency that she is the author of the report. If the report were submitted to the agency, the former employee would be making a communication and not merely confining herself to behind-the-scenes assistance, because the circumstances indicate that she intended the information to be attributed to herself. (e) With the intent to influence— (1)Basic concept. The prohibition applies only to communications or appearances made by a former Government employee with die intent to influence the United States. A communication or appearance is made with the intent to influence when made for the purpose of: (i) Seeking a Government ruling, benefit, approval, or other discretionary Government action; or (ii) Affecting Government action in connection with an issue or aspect of a matter which involves an appreciable element of actual or potential dispute or controversy. Example I to paragraph (eXI): A former employee of the Administration on Children and Families (ACF) signs a grant application and submits it to ACF on behalfofa nonprofit organization for which she now works. She has made a communication with the intent to influence an employee of the United States because her communication was made for the purpose of seeking a Government benefit. WesdawNexf CD 2011 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA01098323 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 20 of 31 § 2641.201 Permanent restriction on any former employee's..., 5 C.F.R. § 2641.201 Example 2 to paragraph (ex l): A former Government employee calls an agency official to complain about the auditing methods being used by the agency in connection with an audit of a Government contractor for which the former employee serves as a consultant. The former employee has made a communication with the intent to influence because his call was made for the purpose of seeking Government action in connection with an issue involving an appreciable element of dispute. (2) intent to influence not present. Certain communications to and appearances before employees of the United States are not made with the intent to influence, within the meaning of paragraph (e)(I) of this section, including, but not limited to, communications and appearances made solely for the purpose of: (i) Making a routine request not involving a potential controversy, such as a request for publicly available documents or an inquiry as to the status of a matter; (ii) Making factual statements or asking factual questions in a context that involves neither an appreciable element of dispute nor an effort to seek discretionary Government action, such as conveying factual information regarding matters that are not potentially controversial during the regular course of performing a contract; (iii) Signing and filing the tax return of another person as preparer; (iv) Signing an assurance that one will be responsible as principal investigator for the direction and conduct of research under a Federal grant (see example 4 to paragraph (d) of this section); (v) Filing a Securities and Exchange Commission (SEC) Form 10-K or similar disclosure forms required by the SEC; (vi) Making a communication, at the initiation of the Government, concerning work performed or to be performed under a Government contract or grant, during a routine Government site visit to premises owned or occupied by a person other than the United States where the work is performed or would be performed, in the ordinary course of evaluation, administration, or performance of an actual or proposed contract or grant; or (vii) Purely social contacts (see example 4 to paragraph (f) of this section). Example 1 to paragraph (e)(2): A former Government employee calls an agency to ask for the date of a scheduled public hearing on her client's license application. This is a routine request not involving a potential controversy and is not made with the intent to influence. Example 2 to paragraph (e)(2): In the previous example, the agency's hearing calendar is quite full, as the agency has a significant backlog of license applications. The former employee calls a former colleague at the agency to ask if the hearing date for her client could be moved up on the schedule, so that her client can move forward with its business plans more quickly. This is a communication made with the intent to influence. Example 3 to paragraph (e)(2): A former employee of the Department of Defense (DOD) now works for a firm that has a DOD contract to produce an operator's manual for a radar device used by DOD. in the course of developing a chapter about certain technical features of the device, the former employee asks a DOD official certain factual questions about the device and its properties. The discussion does not concern any matter that is known to involve a potential controversy between the agency and the contractor. The former employee has not made a communication with the intent to influence. Example 4 to paragraph (e)(2}: A former medical officer of the Food and Drug Administration (FDA) sends a letter to the agency in which he sets out certain data from safety and efficacy tests on a new drug for which his employer, ABC Drug Co., is seeking FDA approval. Even if the letter is confined to arguably "factual" matters, such as synopses of data from clinical trials, the communication is made for the purpose of obtaining a discretionary Government action, i.e., approval of a new drug. Therefore, this is a communication made with the intent to influence. Example 5 to paragraph (eX2): A former Government employee now works for a management consulting firm, which has a Government contract to produce a study on the efficiency of certain agency operations. Among other things, the contract calls WestlawNext' © 2011 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA01098324 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 21 of 31 § 2641.201 Permanent restriction on any former employee's..., 5 C.F.R. § 2641.201 for the contractor to develop a range ofalternative options for potential restructuring of certain internal Government procedures. The former employee would like to meet with agency representatives to present a tentative list of options developed by the contractor. She may not do so. There is a potential for controversy between the Government and the contractor concerning the extent and adequacy of any options presented, and, moreover, the contractor may have its own interest in emphasizing certain options as opposed to others because some options may be more difficult and expensive for the contractor to develop fully than others. Example 6 to paragraph (e)(2): A former employee of the Internal Revenue Service (IRS) prepares his client's tax return, signs it as preparer, and mails it to the IRS. He has not made a communication with the intent to influence. In the event that any controversy should arise concerning the return, the former employee may not represent the client in the proceeding, although he may answer direct factual questions about the records he used to compile figures for the return, provided that he does not argue any theories or positions to justify the use of one figure rather than another. Example 7 to paragraph(e)(2): An agency official visits the premises ofa prospective contractor to evaluate the testing procedure being proposed by the contractor for a research contract on which it has bid. A former employee of the agency, now employed by the contractor, is the person most familiar with the technical aspects of the proposed testing procedure. The agency official asks the former employee about certain technical features of the equipment used in connection with the testing procedure. The former employee may provide factual information that is responsive to the questions posed by the agency official, as such information is requested by the Government under circumstances for its convenience in reviewing the bid. However, the fonner employee may not argue for the appropriateness of the proposed testing procedure or otherwise advocate any position on behalf of the contractor. (3) Change in circumstances. If, at any time during the course of a communication or appearance otherwise permissible under paragraph (e)(2) of this section, it becomes apparent that circumstances have changed which would indicate that any further communication or appearance would be made with the intent to influence, the former employee must refrain from such further communication or appearance. Example I to paragraph (e)(3): A former Government employee accompanies another employee of a contractor to a routine meeting with agency officials to deliver technical data called for under a Government contract. During the course ofthe meeting, an unexpected dispute arises concerning certain terms of the contract. The former employee may not participate in any discussion of this issue. Moreover, if the circumstances clearly indicate that even her continued presence during this discussion would be an appearance made with the intent to influence, she should excuse herself from the meeting. (4) Mere physical presence intended to influence. Under some circumstances, a former employee's mere physical presence, without any communication by the employee concerning any material issue or otherwise, may constitute an appearance with the intent to influence an employee of the United States. Relevant considerations include such factors as whether: (i) The former employee has been given actual or apparent authority to make any decisions, commitments, or substantive arguments in the course of the appearance; (ii) The Government employee before whom the appearance is made has substantive responsibility for the matter and does not simply perform ministerial functions, such as the acceptance of paperwork; (iii) The fonner employee's presence is relatively prominent; (iv) The former employee is paid for making the appearance; (v) It is anticipated that others present at the meeting will make reference to the views or past or present work of the former employee; (vi) Circumstances do not indicate that the former employee is present merely for informational purposes, for example, merely to listen and record information for later use; WestlawNexe © 2011 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA01098325 Case 9:08-cv-80736-KAM Document 79-1 Entered on FLSD Docket 05/03/2011 Page 22 of 31 § 2641.201 Permanent restriction on any former employee's..., 5 C.F.R. § 2641.201 (vii) The former employee has entered a formal appearance in connection with a legal proceeding at which he is present; and (viii) The appearanc