DO-06-029

October 4, 2006

MEMORANDUM
TO:
FROM:

Designated Agency Ethics Officials
Robert I. Cusick
Director

SUBJECT:

"Particular Matter Involving Specific Parties,"
"Particular Matter," and "Matter"

Perhaps no subject has generated as many questions from
ethics officials over the years as the difference between the
phrases "particular matter involving specific parties" and
"particular matter." These phrases are used in the various
criminal conflict of interest statutes to describe the kinds of
Government
actions to which certain restrictions apply.
Moreover, because these phrases are terms of art with
established meanings, the Office of Government Ethics (OGE) has
found it useful to include these same terms in various ethics
rules. A third term, "matter," also has taken on importance in
recent
years because certain criminal post-employment
restrictions
now use that term without the modifiers
"particular" or "involving specific parties."
It is crucial that ethics officials understand the
differences among these three phrases. OGE's experience has
been that confusion and disputes can arise when these terms are
used in imprecise ways in ethics agreements, conflict of
interest waivers, and oral or written ethics advice. Therefore,
we are issuing this memorandum to provide guidance in a single
document about the meaning of these terms and the distinctions
among them.

 Designated Agency Ethics Officials
Page 2
Because the three phrases are distinguished mainly in terms
of their relative breadth, the discussion below will proceed
from the narrowest phrase to the broadest.
Particular Matter Involving Specific Parties
The narrowest of these terms is "particular matter
involving specific parties." Depending on the grammar and
structure of the particular statute or regulation, the wording
may appear in slightly different forms, but the meaning remains
the same, focusing primarily on the presence of specific
parties.
1.

Where the Phrase Appears

This language is used in many places in the conflict of
interest laws and OGE regulations. In the post-employment
statute, the phrase "particular matter . . . which involved a
specific party or parties" is used to describe the kinds of
Government
matters to which the
life-time
and two-year
representational bans apply. 18 U.S.C. § 207(a)(1), (a)(2).
Occasionally, ethics officials have raised questions because
section 207 includes a definition of the term "particular
matter," section 207(i)(3), but not "particular matter involving
specific parties"; however, it is important to remember that
each time "particular matter" is used in section 207(a), it is
modified by the additional "specific party" language. 1
In addition to section 207(a), similar language is used in
18 U.S.C. §§ 205(c) and 203(c). These provisions describe the
limited restrictions on representational activities applicable
to special Government employees (SGEs) during their periods of
Government service. 2

For a full discussion of the post-employment restrictions, see
OGE DAEOgram DO-04-023, at https://www.oge.gov/Web/oge.nsf/Resources/
DO-04-023:+Summary+of+18+U.S.C.+§+207.
2
These restrictions on SGEs are discussed in more detail in OGE
DAEOgram DO-00-003, at https://www.oge.gov/Web/oge.nsf/Resources/
DO-00-003:+Summary+of+Ethical+Requirements+Applicable+to+Special
+Government+Employees.
1

 Designated Agency Ethics Officials
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As explained below, 18 U.S.C. § 208 generally uses the
broader phrase "particular matter" to describe the matters from
which employees must recuse themselves because of a financial
interest. However, even this statute has one provision, dealing
with certain Indian birthright interests, that refers to
particular matters involving certain Indian entities as "a
specific party or parties." 18 U.S.C. § 208(b)(4);
see OGE
Informal Advisory Letter 00 x 12. Moreover, OGE has issued
certain regulatory exemptions, under section 208(b)(2), that
refer
to particular matters involving specific parties.
5 C.F.R. § 2640.202(a), (b). Likewise, the distinction between
particular matters involving specific parties and broader types
of
particular matters (i.e., those that have general
applicability to an entire class of persons) is crucial to
several other regulatory exemptions issued by OGE under
section 208(b)(2).
5 C.F.R. §§ 2640.201(c)(2), (d);
2640.202(c); 2640.203(b), (g).
Finally, OGE has used similar language in various other
rules. Most notably, the provisions dealing with impartiality
and extraordinary payments in subpart E of the Standards of
Ethical Conduct for Employees of the Executive Branch (Standards
of Conduct) refer to particular matters in which certain persons
are specific parties. 5 C.F.R. §§ 2635.502; 2635.503. OGE also
uses the phrase to describe a restriction on the compensated
speaking, teaching and writing activities of certain SGEs.
5 C.F.R. § 2635.807(a)(2)(i)(4).
2.

What the Phrase Means

When this language is used, it reflects "a deliberate
effort to impose a more limited ban and to narrow the
circumstances in which the ban is to operate." Bayless Manning,
Federal Conflict of Interest Law 204 (1964). Therefore, OGE has
emphasized that the term "typically involves a specific

 Designated Agency Ethics Officials
Page 4
proceeding affecting the legal rights of the parties, or an
isolatable transaction or related se t of transactions between
3
identified parties." 5 C.F.R. § 2640.102(1).
Examples of
particular matters involving specific parties include contracts,
grants, licenses, product approval applications, investigations,
and litigation. It is important to remember that the phrase
does not cover particular matters of general applicability, such
as
rulemaking, legislation, or policy-making of general
applicability. 4
Ethics officials sometimes must deci de when a particular
matter first involves a specific party. Many Government matters
evolve, sometimes starting with a broad concept, developing into
a discrete program, and eventually involving specific parties.
A case-by-case analysis is required to determine at which stage
a particular matter has sufficiently progressed to involve
3

This definition, found in OGE's regulations implementing
18 U.S.C. § 208, differs slightly from the definition found in
the regulations implementing a now-superseded version of
18 U.S.C. § 207, although this is more a point of clarification
than substance. Specifically, the old section 207 regulations
referred to "identifiable" parties, 5 C.F.R. § 2637.201(c)(1),
whereas the more recent section 208 rule refers to "identified"
parties. As explained in the preamble to OGE's proposed new
section 207 rule: "The use of 'identified,' rather than
'identifiable,' is intended to distinguish more clearly between
particular
matters involving specific parties and mere
'particular matters,' which are described elsewhere as including
matters of general applicability that focus 'on the interests of
a discrete and identifiable class of persons' but do not involve
specific parties. [citations omitted] The use of the term
'identified,' however, does not mean that a matter will lack
specific parties just because the name of a party is not
disclosed to the Government, as where an agent represents an
unnamed
principal." 68 Feder
al
Register 7844, 7853-54
(February 18, 2003).
4

Usually, rulemaking and legislation are not covered, unless
they focus narrowly on identified parties.
See OGE Informal
Advisory Opinions 96 x 7 ("rare" example of rulemaking that
involved specific parties); 83 x 7 (private relief legislation
may involve specific parties).

 Designated Agency Ethics Officials
Page 5
specific parties. The Government sometimes identifies a
specific party even at a preliminary or informal stage in the
development of a matter.
E.g., OGE Informal Advisory Letters
99 x 23; 99 x 21; 90 x 3.
In matters involving contracts, grants and other agreements
between the Government and outside parties, the general rule is
that specific parties are first identified when the Government
first receives an expression of interest from a prospective
contractor, grantee or other party. As OGE explained recently
in Informal Advisory Letter 05 x 6, the Government sometimes may
receive expressions of interest from prospective bidders or
applicants in advance of a published solicitation or request for
proposals.
In some cases, such matters may involve specific
parties even before the Government receives an expression of
interest,
if there are sufficient indications that the
Government actually has identified a party.
See OGE Informal
Advisory Letter 96 x 21.
Particular Matter
Despite the similarity of the phrases "particular matter"
and "particular matter involving specific parties," it is
necessary to distinguish them. That is because "particular
matter" covers a broader range of Government activities than
"particular matter involving specific parties." Failure to
appreciate this distinction can lead to inadvertent violations
of law. For example, the financial conflict of interest
statute, 18 U.S.C. § 208, generally refers to particular
matters, without the specific party limitation. If an employee
is advised incorrectly that section 208 applies only to
particular matters that focus on a specific person or company,
such as an enforcement action or a contract, then the employee
may conclude it is permissible to participate in other
even t hough
the la w
prohibits
such
particular
matters,
participation.

 Designated Agency Ethics Officials
Page 6
1.

Where the Phrase Appears

In addition to 18 U.S.C. § 208, several other statutes and
5
regulations
use the term "particular matter."
The
representational restrictions applicable to current employees
(other than SGEs), under 18 U.S.C. §§ 203 and 205, apply to
particular matters. 6
As mentioned above, section 207 also
contains a definition of "particular matter." 7 However, where
the phrase is used in the post-employment prohibitions in

5

The relevant language in 18 U.S.C. § 208(a) is "a judicial or
other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, or other particular matter" (emphasis added).
6

The prohibition in 18 U.S.C. § 205(a)(2) actually uses the
phrase "covered matter," but that term is in turn 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)(emphasis added).
The definition in 18 U.S.C. § 207(i)(3) provides: "the term
'particular matter' includes any investigation, application,
request for a ruling or determination, rulemaking, contract,
controversy, claim, charge, accusation, arrest, or judicial or
other proceeding." This language differs slightly from other
references to "particular matter" in sections 203, 205 and 208,
in part because the list of matters is not followed by the
residual phrase "or other particular matter." However, OGE does
not believe that the absence of such a general catch-all phrase
means that the list of enumerated matters exhausts the meaning
of "particular matter" under section 207(i)(3). The list is
preceded by the word "includes," which is generally a term of
enlargement rather than limitation and indicates that matters
other than those enumerated are covered.
See Norman J. Singer,
2A Sutherland on Statutory Construction 231-232 (2000).
7

 Designated Agency Ethics Officials
Page 7
section 207(a)(1) and (a)(2), it is modified by the "specific
parties" limitation. 8
The phrase "particular matter" is used pervasively in OGE's
regulations. Of course, the term appears throughout 5 C.F.R.
part 2640, the primary OGE rule interpreting and implementing
18 U.S.C. § 208. Similarly, it is used in 5 C.F.R. § 2635.402,
which is the provision in the Standards of Conduct that
generally deals with section 208. The phrase also is used
throughout subpart F of the Standards of Conduct, which contains
the rules governing recusal from pa rticular matters affecting
the financial interest of a person with whom an employee is
seeking non-Federal employment. 5 C.F.R. §§ 2635.601-2635.606.
Moreover, the phrase appears in the "catch-all" provision of
OGE's impartiality rule, 5 C.F.R. § 2635.502(a)(2).
See also
5 C.F.R. 2635.501(a). 9
Various other regulations refer to
"particular matter" for miscellaneous purposes.
E.g., 5 C.F.R.
§ 2635.805(a)(restriction on expert witness activities of SGEs);
5 C.F.R. § 2634.802(a)(1)(written rec usals pursuant to ethics
agreements).
2.

What the Phrase Means

Although different conflict of interest statutes use
slightly different wording, such as different lists of examples
of particular matters, the same standards apply for determining
what is a particular matter under each of the relevant statutes
8

At one time, the post-employment "cooling-off" restriction for
senior employees in 18 U.S.C. § 207(c) applied to particular
matters, but the language was amended (and broadened) in 1989
when Congress removed the adjective "particular" that had
modified "matter." See 17 Op. O.L.C. 37, 41-42 (1993).
9

Generally, section 2635.502
focuses on particular matters
involving
specific parties, as noted above. However,
section 2635.502(a)(2) provides a mechanism for employees to
determine whether they should recuse from other "particular
matters" that are not described elsewhere in the rule. In
appropriate cases, therefore, an agency may require an employee
to recuse from particular matters that do not involve specific
parties, based on the concern that the employee's impartiality
reasonably may be questioned under the circumstances.

 Designated Agency Ethics Officials
Page 8
and regulations.
See 18 Op. O.L.C. 212, 217-20 (1994).
Particular matter means any matter that involves "deliberation,
decision, or action that is focused upon the interests of
specific persons, or a discrete and identifiable class of
persons."
5 C.F.R. § 2640.103(a)(1)(emphasis added). It is
clear, then, that particular matter may include matters that do
not involve parties and is
not "limited to adversarial
proceedings or formal legal relationships."
Van Ee v. EPA ,
202 F.3d 296, 302 (D.C. Cir. 2000).
Essentially, the term covers two categories of matters:
(1) those that involve specific part ies (described more fully
above), and (2) those that do not involve specific parties but
at least focus on the interests of a discrete and identifiable
class of persons, such as a particular industry or profession.
OGE regulations sometimes refer to the second category as
"particular matter of general applicability." 5 C.F.R.
§ 2640.102(m).
This category can include legislation and
policymaking, as long as it is narrowly focused on a discrete
and identifiable class. Examples provided in OGE rules include
a regulation applicable only to meat packing companies or a
regulation prescribing safety standards for trucks on interstate
highways.
5 C.F.R. §§ 2640.103(a)(1)(example 3);
2635.402(b)(3)(example 2). Other examples may be found in
various opinions of OGE and the Office of Legal Counsel,
Department of Justice.
E.g., OGE Informal Advisory Letter 00 x
4 (recommendations concerning specific limits on commercial use
of a particular facility); 18 Op. O.L.C. at 220 (determinations
or legislation focused on the compensation and work conditions
of the class of Assistant United States Attorneys).
Certain OGE rules recognize that particular matters of
general applicability sometimes may raise fewer conflict of
interest concerns than particular matters involving specific

 Designated Agency Ethics Officials
Page 9
parties. 10 Therefore, while both categories are included in the
term "particular matter," it is often necessary to distinguish
between these two kinds of particular matters. Of course, in
many instances, the relevant prohibitions apply equally to both
kinds of particular matters. This is the case, for example, in
any application of 18 U.S.C. § 208 where there is no applicable
exemption or waiver that distinguishes the two.
It is important to emphasize that the term "particular
matter" is not so broad as to include every matter involving
Government action. Particular matter does not cover the
"consideration or adoption of broad policy options directed to
the interests of a large and diverse group of persons."
5 C.F.R. § 2640.103(a)(1). For example, health and safety
regulations applicable to all employers would not be a
particular matter, nor would a comprehensive legislative
proposal
for health care reform. 5 C.F.R.
§ 2640.103(a)(1)(example 4), (example 8).
See also OGE Informal
Advisory Letter 05 x 1 (report of panel on tax reform addressing
broad range of tax policy issues). Although such actions are
too broadly focused to be particular matters, they still are
deemed "matters" for purposes of the restrictions described
below that use that term.
10

As noted above, OGE's imparti ality rule generally focuses on
particular matters involving specific parties.
See OGE Informal
Advisory Letter 93 x 25 (rulemaking "would not, except in
unusual circumstances covered under section 502(a)(2), raise an
issue under section 502(a)"). Furthermore, as also discussed
above, several of the regulatory exemptions issued by OGE under
18 U.S.C. § 208(b)(2) treat particular matters of general
applicability differently than those involving specific parties.
The preamble to the original proposed regulatory exemptions in
5 C.F.R. part 2640 explains: "The regulation generally contains
more expansive exemptions for participation in 'matters of
general applicability not involving specific parties' because it
is less likely that an employee's integrity would be compromised
by concern for his own financial interests when participating in
these broader matters." 60 Federal Register 47207, 47210
(September 11, 1995). Of course, Congress itself has limited
certain conflict of interest restrictions to the core area of
particular matters that involve specific parties.
E.g.,
18 U.S.C. § 207(a)(1), (a)(2).

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Page 10
A question that sometimes arises is when a matter first
becomes a "particular matter." Some matters begin as broad
policy
deliberations and actions pertaining to diverse
interests, but, later, more focused actions may follow.
Usually, a particular matter arises when the deliberations turn
to specific actions that focus on a certain person or a discrete
and identifiable class of persons. For example, although a
legislative plan for broad health care reform would not be a
particular matter, a particular matter would arise if an agency
later issued implementing regulations
focused narrowly on the
prices
that pharmaceutical companies could charge for
prescription drugs. 5 C.F.R. § 2640.102(a)(1)(example 8).
Similarly, the formulation and implementation of the United
States response to the military invasion of an ally would not be
a particular matter, but a particular matter would arise once
discussions turned to whether to close a particular oil pumping
station or pipeline operated by a company in the area where
hostilities
are taking place. 5 C.F.R.
§ 2640.102(a)(1)(example 7).
Matter
The broadest of the three terms is "matter." However, this
term is used less frequently than the other two in the various
ethics statutes and regulations to describe the kinds of
Government actions to which restrictions apply.
1.

Where the Phrase Appears

The most important use of this term is in the one-year
post-employment restrictions applicable to "senior employees"
and "very senior employees." 18 U.S.C. § 207(c), (d). In this
context, "matter" is used to describe the kind of Government
actions that former senior and very senior employees are
prohibited from influencing through contacts with employees of
their former agencies (as well as contacts with Executive
Schedule officials at other agencies, in the case of very senior
employees).
The unmodified term "matter" did not appear in
these provisions until 1989, when section 207(c) was amended to
replace "particular matter" with "matter" and section 207(d) was
first enacted. Pub. L. No. 101-194, § 101(a), November 30,
1989. OGE also occasionally uses the term "matter" in ethics
regulations, for example, in the description of teaching,

 Designated Agency Ethics Officials
Page 11
speaking and writing that relates to an employee's official
duties. 5 C.F.R. § 2635.807(a)(2)(E)(1).
2.

What the Phrase Means

It is clear that "matter" is broader than "particular
matter."
See 17 Op. O.L.C. at 41-42. Indeed, the term is
virtually all-encompassing with respect to the work of the
Government. 11
Unlike "particular matter," the term "matter"
covers even the consideration or adoption of broad policy
options that are directed to the interests of a large and
diverse group of persons. Of course, the term also includes any
particular matter or particular matter involving specific
parties.
Nevertheless, it is still necessary to understand the
context in which the term "matter" is used, as the context
itself will provide some limits. In 18 U.S.C. § 207(c) and (d),
the post-employment restrictions apply only to matters "on which
[the former employee] seeks official action." Therefore, the
only matters covered will be those in which the former employee
is seeking to induce a current employee to make a decision or
otherwise act in an official capacity.

11

A now-repealed statute, 18 U.S.C. § 281 (the predecessor of
18 U.S.C. § 203), used the phrase "any proceeding, contract,
claim, controversy, charge, accusation, arrest, or other matter"
(emphasis added). One commentator noted that the term "matter"
in section 281 was "so open-ended" that it raised questions as
to what limits there might be on the scope. Manning, at 50-51.
Manning postulated that some limits might be inferred from the
character of the matters listed before the phrase "or other
matter." Id. at 51. Whatever the force of this reasoning with
respect to former section 281, the same could not be said with
respect to 18 U.S.C. § 207(c) or (d), as neither of these
current provisions contains an exemplary list of covered
matters.