FindACase | Megna v. Little Switzerland of America Candy Factory, Inc.
Megna v. Little Switzerland of America Candy Factory, Inc.
LITTLE SWITZERLAND OF AMERICA CANDY FACTORY, INC., KRISTINE M. ULLEMEYER, HAYES ULLEMEYER, Defendants.
Pending before the Court is the Report and Recommendation (“R&R”) of the Magistrate Judge, recommending denying the motion to dismiss. (ECF No. 31.) The R&R advised the parties that they had 14 days to file specific written objections to the R&R in order to preserve de novo review. (Id. at 14-15.) Fourteen days later, defendants filed objections to the R&R. (ECF No. 33.) Plaintiffs did not file any objections to the R&R, but, did file a response to defendants' objections (ECF No. 41).
A district court may refer pending motions to a magistrate judge for entry of a report and recommendation. 28 U.S.C. §636(b)(1)(B); Fed.R.Civ.P. 72(b). The court is free to accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. §636(b)(1); Fed.R.Civ.P. 72(b)(3). A party is entitled to a de novo review of those portions of the report and recommendation to which specific objection is made. See Fed.R.Civ.P. 72(b)(2), (3). “[O]bjections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30 St., 73 F.3d 1057, 1060 (10th Cir. 1996); see also See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.”). Furthermore, arguments not raised before the magistrate judge need not be considered by this Court. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
The Magistrate Judge, first, recommended disposing of the motion to dismiss solely under Rule 12(b)(6) because defendants' jurisdictional questions were intertwined with the merits of the case. (ECF No. 31 at 4-5.) The Magistrate Judge further recommended declining to consider various documents defendants had attached to a prior version of the motion to dismiss. (Id. at 5-7.) Defendants do not raise any objections to these recommendations. (See ECF No. 33 at 1-2.) As a result, the Court ADOPTS the R&R to the extent it recommends disposing of the motion to dismiss under Rule 12(b)(6) only and declining to consider the documents attached to a prior version of the motion to dismiss.
The Magistrate Judge, next, recommended rejecting defendants' argument that claim and issue preclusion barred plaintiffs' claims. (ECF No. 31 at 7-8.) The Magistrate Judge found an analogous case persuasive, and that defendants failed to sufficiently develop this argument and failed to address plaintiffs' arguments in opposition thereto. (Id.) Defendants do not object to this recommendation either. (ECF No. 33 at 1-2.) As a result, the Court ADOPTS the R&R to the extent it recommends rejecting claim and issue preclusion as bases for dismissing plaintiffs' claims.
The Magistrate Judge, next, recommended that supplemental jurisdiction should be exercised over plaintiffs' State law claims because plaintiffs' federal claims remained. (ECF No. 31 at 13.) Defendants do not raise any objection to this recommendation. (See ECF No. 33 at 1-2.) In any event, because the Court agrees that plaintiffs' federal claims should not be dismissed, the Court ADOPTS the R&R to the extent it recommends exercising supplemental jurisdiction over plaintiffs' State law claims.


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PUBLIC GRAIN & STOCK EXCHANGE V. WESTERN UNION TEL. CO.
When, in consequence of the want of diligence on the part of an applicant for removal of a case from R state court, the issue has not been made up, or where the right exists to have the cause heard, or set down for hearing at the first term, and he does not 8sk for it, he cannot afterwards be permitted to apply to the state court for the removal of the cause. 2.
SAME-BOND NOT SIGNED BY APPLICANT.
Where the bond required by the third section of the act of 1875 is otherwise sufficient, it is not a valid objection that it was not signed by the party seeking to remove the case, but by a different person named therein as principal and another 8S surety.
Motion to Remand Cause to State Court.
A. B. Jenkf1, for plaintiff. Williams it Thompson, for defendants.
PUBLIC GRAIN & STOCK EXCHANGEV. WESTERN UNION TEL. CO.
the party, although required to give the security, should sign the bond; but it has been provided a proper bond of indemnity is given by other persons. I think, therefore, that the objection taken to the bond' is untenable, and constitutes no sufficient reason to remand the cause to .the state court. The other reason seems to me to be sound,-,namely, that the application for removal was not made ·intime. The cause could have been tried, within the meaning of the statute, before the seventeenth day of March, when the petition and bond for removal were filed in the state court. It seems clear that the object of the statute was to require reasonable diligence on the part of the applicltnt for removal, and not to allow the case to stand in the state court beyond the first term when it could have been heard. Now, in this case, a general demurrer was filed, which stood from April 29, 1889, until January 29, 1883, when the answer was filed. If, in consequence of the want of diligence on the part of the applicant for removal,. the issue is not made up, or if, having a right to have the cause heard, or set down for hearing, he does not ask fOl it, and therefore it is not heard, it would seem reasonable to hold that at another term he should not be permitted to apply to the state court for the removal of the cause. If, under the statute of this state, he had given notice that the answer was filed, and no replication had been filed by plain.tiff within the four days mentioned in the statute, then he would have had the right to set the cause down for hearing upon the bill and answer. Having 'failed to do this, it may be said to have been the fault of the defendant that the case was not heard prior to March 17th, or that the case was not before that time tliable, and therefore it would seem that, having waited so long before the application for removal was made, it can hardly be said that it was at the term at which the cause could be first tried, and before the trial thereof, and therefore the case will be remanded to the state court. Kerting v. Amer. Oleograph Go. 10 FED. REP. 17; Aldrich v. Grouch, rd. 305; Murray v. Holden, 2 FED. REP. 740; Scott v. Glinton ct S. R. Go. 6 Biss. 529.
See .Aldriah v. Crouan, 10 FED. REP. 305, and note 507; PhamiIV Hut. L. Ins. Co. v. Walrath, ante, 161.
REMOVAL OF CAUSE-Surr BY OR AGAINST' CORPORATlON CREATED BY ACT 011' CONGRESS.
A suit by or against II corporation ,created by an act of congress, is not necessarilya case which arises under a law of the United States, within the meaning of the second section of the act of March 3, 1875, providing for the rtliloval of causes from the state to the federal courts. 2.
SAME-CAlm ARISING UNDER LAWS of UNITED STATES.
Congress has not provided for the removal of every case hrought by or agltinst a federal corporation, upon the sole ground that it is a corporation organized under the laws of the United States.

matches: V. v. v. v. v. v. v.


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Speciation encompasses a continuum over time from freely interbreeding populations to reproductively isolated species. Along this process, ecotypes – the result of local adaptation – may be on the road to new species. We investigated whether three autotetraploid Cochlearia officinalis ecotypes, adapted to different habitats (beach, estuary, spring), are genetically differentiated and result from parallel ecotypic divergence in two distinct geographical regions. We obtained genetic data from thousands of single nucleotide polymorphisms (SNPs) from restriction-site associated DNA sequencing (RADseq) and from six microsatellite markers for 12 populations to assess genetic divergence at ecotypic, geographic and population level. The genetic patterns support differentiation among ecotypes as suggested by morphology and ecology. The data fit a scenario where the ancestral beach ecotype has recurrently and polytopically given rise to the estuary and spring ecotypes. Several ecologically-relevant loci with consistent non-random segregating patterns are identified across the recurrent origins, in particular around genes related to salt stress. Despite being ecologically distinct, the Cochlearia ecotypes still represent an early stage in the process of speciation, as reproductive isolation has not (yet) developed. A sequenced annotated genome is needed to specifically target candidate genes underlying local adaptation.
Speciation often occurs as a continuous process over time from freely interbreeding populations to reproductively isolated species1,2,3. Along this continuum, ecotypes may be formed as a result of local adaptation to specific sets of environmental factors that define different habitats4. Even though the ecotype concept and its role in plant speciation have been subject to heavy debate during the last century2, several empirical studies show non-random organisation of morphological and genetic variation related to more or less steep ecological gradients4,5,6, supporting that ecotypes could be considered non-static entities along the speciation continuum. The study of adaptive divergence between ecotypes may, thus, be an important contribution for understanding the process of speciation. Instances of parallel ecotypic divergence where adaptation to similar conditions repeatedly cause similar phenotypic changes in closely related organisms are especially useful for disentangling the respective roles of drift and natural selection in shaping genomic divergence among genomes and for studying the genes underlying local adaptation7. The ecological variation found among populations of the autotetraploid Cochlearia officinalis in northern Norway potentially represents a highly valuable system to explore parallel ecotypic differentiation in plants.
The genus Cochlearia (Brassicaceae) constitutes a good example of a group of recently evolved, and in some cases not yet fully differentiated taxa, which most likely diversified during the mid or late Pleistocene8,9,10. The taxa inhabit coastal and inland (alpine) habitats and are distributed throughout Central and Northern Europe, extending the distribution of the genus into the arctic region11. Most taxa are dependent on a good supply of water or moist soil conditions throughout the year, and parallel adaptation to different types of moist habitats may be important for the diversification within the group12, 13. The taxa together exhibit complex variation not only with regard to ecology and morphology, but constitute also a polyploid complex of diploids, tetraploids, hexaploids, and octoploids9, 10, 14,15,16,17,18.
The tetraploid C. officinalis is a cold-tolerant halophyte, widely distributed along the European coastline14, 19, 20. Gill suggested based on studies of chromosome associations during meiosis in F1 hybrids, that C. officinalis originated by autopolyploidy from the Central European C. pyrenaica 17. Molecular data support an autotetraploid origin, although not directly from present day diploids10. Previous studies have found morphological and ecological variation in Northern Scandinavia, which has been suggested to represent differentiation at the ecotypic level, and several subspecies have been recognised16, 20, 21. The common beach ecotype, or ssp. officinalis, grows in gravel beaches (Fig. 1a), crevices in beach cliffs (Supporting Information Fig. S1a), salt marshes and occasionally in bird cliffs, where it shows vigorous growth and seems to be adapted to exploit the high nutrient levels13, 16. The estuary ecotype, or ssp. norvegica, grows in sheltered habitats near outlets of large rivers in innermost fjords (Fig. 1b, Supporting Information Fig. S1b), which are inundated by brackish water at flood-tide13, 16. This ecotype seems to be adapted to handle nutrient poor habitats and shows very little increase in growth when presented with higher nitrogen levels21. The spring ecotype, or ssp. integrifolia, grows inland in more or less base-rich cold springs (Fig. 1c, Supporting Information Fig. S1c), along streams and brooks or in snow beds13, 16.
Habit and habitat of the three ecotypes of Cochlearia officinalis (2n = 24) in Troms, Norway. (a) The beach ecotype (ssp. officinalis) at localities Sjøvassbotn (left) and Skittenelv (right), (b) the estuary ecotype (ssp. norvegica) at locality Skibotn, and (c) the spring ecotype (ssp. integrifolia) at locality Kvaløysletta. (Photo: M.K. Brandrud).
Nordal and Stabbetorp found that the three ecotypes are not only ecologically differentiated but also to some degree morphologically distinct16. However, no single quantitative character unambiguously separates the three ecotypes16. The morphologically most distinct ecotype is the estuary ecotype, with larger flowers and cuneate (as opposed to more or less kidney-shaped) rosette leaves that are fleshier than those of the other two ecotypes. In the beach ecotype, the fruit (silicula) is more spherical in outline than in the estuary and spring ecotypes. The spring ecotype has a tendency to be perennial rather than biennial as is the case for the two other ecotypes. This is indicated by a branching rhizome that gives rise to more rosettes, and by the development of buds before the snow has melted. When comparing plants collected in the field with plants cultivated in common conditions, distinctiveness in flower and fruit characters tended to be stable, whereas the size and shape of rosette and stem leaves, as well as the branching and elongation of inflorescences, were highly plastic depending on environmental conditions16.
Genetic studies of Cochlearia so far10, 14, 22,23,24,25 have not included plants representing the ecotypic variation found in Northern Scandinavia. Using several thousand single nucleotide polymorphisms (SNPs) obtained from restriction-site associated DNA sequencing (RADseq), and microsatellite markers, we explore here whether and to what degree the ecotypes are genetically differentiated. We infer the genetic structure of the three ecotypes from two geographical areas of Northern Norway and we ask whether the ecological and morphological variation that we see today is the result of parallel evolution through local adaptation to different habitats.
Plant material of the three C. officinalis ecotypes (beach, estuary and spring) were sampled in Northern Norway in two areas (Fig. 2, Table 1) where they broadly co-occur: Tromsø-Skibotn in Troms county (in the following called Troms) and Lofoten in Nordland county (in the following called Lofoten). Fifty-four individuals from 12 populations, representing the three ecotypes (Table 1), were analysed by flow cytometry to estimate ploidal level, and all were confirmed to be tetraploid.
Genetic structure of 12 populations of Cochlearia officinalis in Northern Norway. (a,b) Results from STRUCTURE analysis (K = 4) performed on 89 individuals, using 4,296 SNPs from the RADseq data. (c,d) Results from STRUCTURE analysis (K = 4) performed on 120 individuals, using microsatellite allele sizes. (a,c) Overall assignment of populations to the four STRUCTURE groups visualized by pie charts on a map of Northern Norway. The two sampling areas are indicated as Troms and Lofoten. (b,d) Proportional assignment of individuals to the four STRUCTURE groups. Each individual is represented by a bar and populations are separated by a black line. Populations are named according to ecotype (B = beach, E = estuary, S = spring) and geography (T = Troms, L = Lofoten), see Table 1. The map layer was extracted from GADM version 1.072.
Table 1 Collection data for Cochlearia officinalis L. populations from Northern Norway.
From c. 428 million raw paired-end reads obtained from RADseq, c. 163 million forward reads were retained after demultiplexing and cleaning. The second reads in the pairs were only used in the process of demultiplexing based on combinatorial inline barcodes and for extending contigs for the annotation of outlier loci. After de novo catalog building and SNP calling, we retained c. 15.000 high-quality loci present in at least 80% of the 89 individuals included in the analysis (Table 1). These were further filtered with various parameters to construct input files for population genetic and phylogenetic analyses (Supporting Information Table S1). Given that the 1C genome size of C. officinalis is estimated to 0.75 pg26, i.e. 734 megabases (Mbp), and following the procedure in Lowry et al.27, the retained RAD loci density in the current study was estimated to be 5,329 RAD loci over 734 Mbp, i.e. 7.26 RAD loci/Mbp.
The number of private alleles were highest in the beach ecotype (661) compared to the estuary (603) and spring (494) ecotypes (Supporting Information Table S2). All populations had negative inbreeding coefficients (FIS) when calculated from the RADseq data, indicating an excess of heterozygotes, estimates confirmed also with our microsatellite analyses (see below). It should be noted that when analysing RADseq data in STACKS, FIS is calculated as 1-(Ho/He). For polyploids we would, however, expect higher levels of heterozygosity than for diploids28, meaning that in our calculations FIS is most likely underestimated by using this approach. The spring population from Sørfjorddalen in Lofoten (SL2) had a lower number of private alleles, and an inbreeding coefficient closer to zero than other populations. This population grows in a spring in an open forest area relatively far from the sea (Fig. S1c). The second spring population from Lofoten (Himmeltind, SL1), which grows in a small stream near the outlet to the sea, had a higher number of private alleles and a more negative inbreeding coefficient, comparable to what we found for the beach ecotype in the same area (Supporting Information Table S2).
The number of migrants based on private alleles (Nm) was subunitary in all population pairs, suggesting an important role for drift (and/or local selection) in shaping the genetic structure of the group. In general, the beach populations had highest connectivity, independent of geographic distance. The other ecotypes were less connected by gene flow (except for the estuary populations from Troms), with the number of migrants within ecotypes not different from that between ecotypes or between regions. The lowest levels of gene flow were found for the isolated spring population from Lofoten (SL2), followed by the two spring populations from Troms. Highest number of migrants was found between the two estuary populations from Troms, which are both geographically and genetically close, followed by the beach populations from both areas (Supporting Information Fig. S2, Table S3).
Analyses of molecular variance (AMOVA; Supporting Information Table S4) showed that most of the variation in the dataset was found within populations (with heterozygosity as an important part of the total variation, but see above comments on FIS estimates). Although only a small percentage (c. 5%) was explained by differences between ecotypes, this part was larger than the variation explained by the two geographic regions (2%).
In a principal component analysis (PCA), based on 4,296 SNPs, the first three axes explained 11.3% of the variation in the data (Fig. 3). Taken together, the three axes separated all populations except for some overlap between the two estuary populations from Troms and between the two beach populations from Troms. Further, the main signal followed the ecotypic differentiation (the first and third axes in combination) in addition to a (weaker) geographical separation between Troms and Lofoten (first and second axis in combination). Overall, the beach populations were less well separated and localised at the centre of the plot. The isolated spring population from Lofoten (SL2) was the most distinct population, whereas the more exposed spring population from Lofoten (SL1) overlapped with one of the beach populations from the same area. Although more vaguely, the same tendency was seen in Troms; the isolated forest spring population (Tromsdalen, ST1) was genetically more distinct from the beach populations than the spring population growing in a somewhat more exposed area (Kvaløysletta, ST2; Fig. 1c).
PCA performed on 12 populations of Cochlearia officinalis, using 4,296 SNPs from the RADseq data. (a) The first and second PCA axes. (b) The first and third PCA axes. The first PCA axis explains 4.05%, the second axis 3.82%, and the third axis 3.46% of the total variation. Colour represents ecotypes: estuary - purple, beach - yellow and spring - green. Individuals (dots) are linked to the centre of the 95% inertia ellipse for the population to which they belong. Populations are named according to ecotype (B = beach, E = estuary, S = spring) and geography (T = Troms, L = Lofoten), see Table 1.
From a STRUCTURE analysis, based on 4,296 SNPs, K = 4 was selected based on the optimal deltaK and the mean likelihood value (followed by K = 2 and K = 9, Supporting Information Fig. S3). When the STRUCTURE results were plotted on a map of Northern Norway as pie charts representing the affiliation of single populations to the four STRUCTURE groups (Fig. 2a), a geographical pattern was seen with two of the groups (‘purple’ and ‘orange’) dominating in Troms, and the other two groups (‘blue’ and ‘green’) dominating in Lofoten. Overall, the beach populations were genetically similar and showed admixture of three of the four STRUCTURE groups, though with populations in Lofoten and Troms differing in relative allocation to each genetic pool (Fig. 2b). The estuary populations in Lofoten allocated to a STRUCTURE group dominating among the beach populations in Lofoten (‘green’), whereas the estuary populations in Troms allocated to a STRUCTURE group dominating among the beach populations in Troms (‘purple’). The isolated spring population from Lofoten (SL2) was also in this analysis genetically the most distinct of all analysed populations, constituting a genetic group of its own (‘blue’), whereas the second spring population from Lofoten (SL1) was admixed and genetically similar to the beach populations from the same area.
In a neighbour net, based on 4,311 SNPs, the individuals clustered according to the 12 populations (Fig. 4). The spring and estuary populations were mainly supported by well-defined splits, whereas the beach populations were less well defined with relatively short splits and a high degree of reticulation corresponding to the high level of admixture seen in the STRUCTURE results. This was also the case for the admixed spring population from Lofoten (SL1). The isolated spring population from Lofoten (SL2) was again the most distinct population, supported by the largest split in the network. There was a relatively clear geographical split across the network, separating populations from the two sampling areas (Troms and Lofoten).
Neighbour net performed on 12 populations of Cochlearia officinalis, using 4,311 SNPs from the RADseq data. Colour represents ecotypes: beach - yellow, estuary - purple and spring - green. Populations are named according to ecotype (B = beach, E = estuary, S = spring) and geography (T = Troms, L = Lofoten), see Table 1. The dotted line indicates a geographical split between the two sampling areas, Troms and Lofoten.
From a TREEMIX analysis, based on 5,982 SNPs and including an outgroup population from Scotland (Aberdeenshire), a tree with no migration events was chosen (Fig. 5; adding individual migration events did not significantly improve the overall residual plot). The tree corresponded well with the STRUCTURE results and further indicated the beach ecotype as the ancestral ecotype, two origins of the estuary ecotype (one in each geographical area), and at least two origins of the spring ecotype. One of these gave rise to the two spring populations in Troms together with the isolated spring population in Lofoten (SL2); the latter, however, on a long branch confirming its distinctiveness. The second Lofoten population (SL1), which grouped with the basal beach populations, may have a separate recent origin. Alternatively, this population may be so heavily influenced from gene flow with the nearby beach populations and isolated from other spring populations for such a long time that it appears genetically closer to the beach ecotype.
TREEMIX performed on 12 populations of tetraploid Cochlearia officinalis from Northern Norway, using 5,982 SNPs from the RADseq data. A population from Scotland (Aberdeenshire) was used as outgroup. Overall assignment of populations to the four STRUCTURE groups is visualized by pie charts (corresponding to Fig. 2a). Populations are named according to ecotype (B = beach, E = estuary, S = spring) and geography (T = Troms, L = Lofoten), see Table 1.
A BAYESCAN analysis testing for outlier (RADseq) loci potentially differentiating the beach from the estuary ecotype identified 36 loci within Lofoten and 38 within Troms, with three of the loci in common (Supporting Information Table S5, Fig. S4a). The analysis testing for outlier loci potentially differentiating the beach from the spring ecotype identified 31 loci within Lofoten and 32 within Troms, with four common outliers (Supporting Information Table S5, Fig. S5a). Annotations of the common outliers (Table 2) indicated genes of potential physiological and ecological relevance, e.g. NHX1 and GABA-T that regulate salt and drought stress tolerance. GO enrichment tests for biological processes and molecular functions was obtained for each comparison, but little to no overlap was found between pairwise comparisons in different geographical areas (Supporting Information Figs S4b,c and S5b,c).
Table 2 GenBank accession numbers and annotation information for outlier loci from ecotype comparisons.
Six microsatellites developed for other Brassicaceae taxa (Arabidopsis, Brassica and Draba; Supporting Information Table S6) were successfully co-amplified in C. officinalis and were further used to analyse the 12 populations from Northern Norway. The six microsatellites each had from two to 39 alleles, and in total 98 alleles were scored for 120 individuals. Even though the FIS values calculated from the microsatellites varied more between populations (Supporting Information Table S2), they were also slightly negative or close to zero (in populations ST1 and EL2 FIS estimated with microsatellites were even lower than RADseq-derived estimates), indicating slight excess of heterozygotes. A STRUCTURE analysis resulted in similar, though less distinct, patterns of genetic variation as obtained from RADseq data. The degree of admixture varied considerably between single individuals within a population. Based on deltaK, K = 3, followed by K = 7 were suggested as representative number of groups (Supporting Information Fig. S6). When K = 4 was selected (for comparison with the four RADseq groups), and population affiliation to STRUCTURE groups was plotted on the map of Northern Norway (Fig. 2c), a similar geographical pattern as for the RADseq data was seen, despite differences in the degree of admixture in single populations, and overall more admixture between Troms and Lofoten (Fig. 2d). The main difference compared to K = 3 was that the isolated spring population from Lofoten (SL2) came out as a distinct group.
Overall, the genetic patterns among Cochlearia populations in Northern Norway support differentiation among ecotypes as previously suggested based on morphological and ecological investigations16. Preferences for different types of moist habitats are seen throughout the genus and local adaptation to divergent ecologies has probably been an important driver for speciation12.
The analyses suggest the beach ecotype as the ancestral C. officinalis ecotype in Northern Norway. This is supported by its intermediate position in the ordination plot, the relatively short branches in the network, and the high number of private markers. Also, the historical relationships, as displayed by the TREEMIX analysis, fit a scenario where the ancestral beach ecotype from the Lofoten area dispersed to Troms and in parallel locally adapted to the estuary and spring habitats. The Lofoten/Vesterålen area is one of the areas where the ice withdrew fairly early from Northern Scandinavia29, 30, supporting an early colonisation of C. officinalis from the south/southwest to this area.
Ecotypic differentiation in coastal versus inland habitats is found in many plant species4, 5. In the genus Grindelia, coastal, inland and intermediate ecotypes show similar levels of genetic differentiation to what we find in C. officinalis in Northern Norway31. Fragmented or patchy populations will potentially suffer from reduced gene flow between populations and increased genetic differentiation32. Whereas the exposed beach habitat of C. officinalis can be considered more or less continuous following the coastline, the estuary and spring habitats are typically more patchy and isolated. Spring vegetation types are thus described as “small islands in the landscape”33. The fragmentary nature of estuary and spring habitats, in combination with limited dispersal, can explain the patterns of strong population affiliation observed within each of the two sampling areas. Several species growing in coastal habitats have seeds that float well and are adapted to dispersal by sea currents over long distances34. In other coastal species, the seeds float less well and dispersal is dependent on the speed of the sea current35, 36. Dispersal of Cochlearia seeds has not been studied extensively, but they have no apparent adaptation for long distance dispersal and floating experiments indicate that dispersal with sea currents is limited to shorter distances37, 38. With putative limited ocean dispersal, it is not surprising that we find strong population affiliation of the C. officinalis populations and only limited gene exchange, primarily between geographically close populations.
The estuary habitat is connected to the sea, but still clearly separated from the more exposed habitat of the beach ecotype further out in the fjords. The streams might, however, lead to a more or less common seed pool. The Cochlearia plants in Northern Norway are obligate outcrossers11, and crossings between ecotypes resulted in seeds with high germination rate16. The distinctiveness of the beach and estuary ecotypes is probably related to selection to the rather special estuary habitat, which is characterised by brackish water conditions, regular inundation, and low levels of nutrient and organic material. Alternatively, differences in flowering time and temporal isolation between ecotypes could be a significant barrier to gene flow5, 39. In controlled experiments, plants of the estuary ecotype showed a tendency to delayed flowering compared to the beach ecotype16, but generally plants of both ecotypes have a prolonged flowering period throughout the whole summer and temporal isolation is less likely to explain the distinctiveness between plants in these two habitats.
Even though the estuary ecotype is morphologically the most distinct of the three ecotypes16, the spring ecotype turned out to be genetically the most distinct. Genetical distinctness is, however, related to degree of geographical isolation (Fig. S3), with the small isolated forest spring populations (Sørfjorddalen in Lofoten and Kvaløysletta in Troms) genetically most distinct, suggesting that drift may be an important force shaping the genetic patterns in this system. But also in this case, it is reasonable to assume that selection to the special spring habitat plays an important role for the distinct characteristics of the plants growing there. Compared to the exposed beaches and the often inundated estuary habitat, where an annual or biennial life history is most optimal, the spring habitat is much more sheltered and supportive of perenniality as usually found in the spring ecotype16.
Local adaptation occurs when a population evolves traits that support higher fitness in its native environment relative to populations from foreign environments40. Genetic differences between populations from contrasting environments can be indicative of selection for local adaptation, especially if these patterns are replicated. However, historic demographic events can generate similar patterns and ideally one should have fitness data from reciprocal transplant experiments to examine the genetics of local adaptation. In the absence of such data, combination of genetic differences and information about quantitative trait variation can be used as indirect evidence for the role of selection and may help to identify patterns of local adaptation41. Differentiation between forms can have occurred multiple times in situ (parallel evolution) or as a result of a single origin with subsequent dispersal to areas with suitable habitat7. In addition to the Grindelia example already mentioned31, other recent examples of parallel ecotypic differentiation have been shown in Eucalyptus globules 39 and Senecio lautus 7, with coastal ecotypes originating polytopically from more widespread, inland ecotypes. Our data, combined with previous morphological, ecological and eco-physiological studies of C. officinalis, build a good case of parallel ecotypic divergence as a result of repeated adaptation to the estuary and spring habitats. Analyses of both the SNP and the microsatellite data show differentiation among ecotypes, but also geographical separation within ecotypes, especially for the estuary and spring ecotypes which by the TREEMIX analysis are suggested to have originated polytopically from the ancestral beach ecotype. Cases of parallel evolution occurring within a species are important for understanding the interaction of natural selection, gene flow and geography on the origin of ecotypes. In our case, these factors or processes have most likely interplayed to produce the genetic patterns that we find among populations of the three ecotypes.
One of the intriguing challenges in ecological genomics is to identify the genes that underlie local adaptation. Cases of parallel ecotypic differentiation may provide particular good opportunities to search for candidate genes responding to natural selection, and allow for disentangling the effects of selection and drift. One common way to screen for adaptive loci is FST-based outlier tests, which assume neutral genetic drift to affect the entire genome, whereas adaptive loci would be expected to show excess differentiation (outliers) among populations42, 43. A FST-based outlier test of pairwise comparisons between C. officinalis ecotypes (beach vs. estuary and beach vs. spring) for each sampling area resulted in several candidate loci. Many of these are most likely the result of drift but for some outlier loci, we found a match between comparisons in Troms and Lofoten as would be expected if these are adaptive loci, or linked to adaptive loci that have evolved in parallel in the two areas. A couple of outlier loci found in both beach-estuary comparisons (Table 2), correspond indeed to genes (NHX1, GABA-T) that are known to be involved in salt tolerance in Arabidopsis and other plants, and could be important for adaptation to brackish conditions44,45,46,47. In most cases, the traits that confer local adaptations are polygenic quantitative traits41, and identification of loci that govern variation in such traits is a challenging task and will require a genomic region-based approach that can detect genetic hitchhiking regions48. Further, the common isolating traits acquired in different populations as a result of parallel ecotypic differentiation may not necessarily be governed by the same mutation, gene or even pathway in different replicates49. In any case, identification of genes that play a role in adaptation will require selection experiments in controlled and field environments to directly measure their effects on fitness, and in addition functional gene analyses to detect loci that actually alter fitness7, 48.
As RADseq is only a representation of the genome, important regions of the genome, and thus also several loci potentially involved in adaptive divergence, are most likely overlooked50, 51. Lowry et al.27 estimated the median density of markers from recent studies performing genome scans with RADseq to be 4.08 RADtag per megabase. With haplotypes being one to three orders of magnitude shorter for many species, they concluded that RADseq will miss many loci under selection. With a density of marker estimation of 7.26 RAD loci/Mbp for the current study, we have probably only been able to identify a minor portion of the actual number of markers that could be under selection as part of the diversification between the ecotypes of C. officinalis. However even with the limitations of the current approach (RADseq), we were able to identify ecologically-relevant loci that could be involved in divergent adaptation.
Determining the genes and the genetic architecture of traits involved in adaptive divergence between ecotypes is crucial to understand the process of speciation. A common intermediate stage in the process towards reproductive isolation is the evolution of partially reproductively isolated ecotypes, resulting from adaptation to different habitats. Despite being isolated ecologically, or partly so, the Cochlearia ecotypes still represent a quite early stage in this process where reproductive isolation has not yet evolved. Whether or not the ecotypes may eventually become fully distinct species, studying them may give us the opportunity to observe the processes leading to diversification. In already diverged and well diagnosed species, these processes are usually even more obscured. Young incipient species are more likely to display signatures of selective sweeps that can point to asymmetry in selection between habitats52. Sequenced annotated genomes would open up for this and also for detailed investigations regarding the possible link between autopolyploidy and rapid phenotypic diversification. In this light, the autotetraploid Cochlearia in Northern Norway represents an interesting example of parallel ecotypic divergence, illustrated by non-random organisation of genetic variation across the landscape that may, or may not, in time become reproductively isolated species.
Two populations of each of the three Cochlearia ecotypes were collected from each of the two areas in Northern Norway: Troms and Lofoten (Table 1, Fig. 2). From each population, leaf tissue of 10 individuals was dried and stored in silica gel. When available, mature seeds were also sampled, preferably from the same individuals. Five representative individuals from each population were collected as herbarium vouchers and deposited at the herbarium of the Natural History Museum, University of Oslo (O). To obtain fresh leaf tissue for flow cytometry, seeds were germinated and plants grown in controlled growth chambers at the University of Oslo (18 h light at 18 °C; 6 h dark at 10 °C). To confirm that the sampled plants were tetraploids, representative plants from all populations (altogether 54 individuals, Table 1) were analysed by flow cytometry to obtain relative nuclear DNA amounts (see Supporting Information Methods S1 for further details on how the flow cytometry analyses were performed).
DNA was extracted from c. 30 mg silica-dried leaf tissue from each individual with the E.Z.N.A. SP Plant DNA Kit (Omega bio-tek), following the protocol for dry samples with minor modifications. Before extraction, the samples were crushed for 1–2 min at 20 Hz with two 3 mm tungsten carbide beads in a tissuelyser Retsch MM301 (Qiagen). In most cases, elution with 50 µl (run through once or twice) was used. Before RADseq, the DNA samples were cleaned with NucleoSpin gDNA Clean-up (Macherey-Nagel).
RADseq libraries were prepared by single digest reactions using PstI, combinatorial inline barcoding, and size selection with magnetic beads. The protocol was adapted from previous studies53, 54, with modifications as indicated below. Altogether 120 Cochlearia samples were included in two libraries (60 samples in each); of these 91 (89 individuals and two library replicates), representing the 12 populations from Northern Norway, were included in the data analyses for this study. For each individual, 125 ng DNA was digested at 37 °C for 2 h with 15 U PstI-HF (NEB). To remove PstI-HF (which cannot be heat inactivated), all samples were cleaned using SPRIselect Reagent Kit (Beckman Coulter) with no size selection. After ligation of P5 adapters, samples with different P5 barcodes were pooled together in five sublibraries and sheared by sonication using a Bioruptor Pico (Diagenode) with three cycles of 45 s “on” and 60 s “off” at 4 °C to achieve an average size of c. 400 bp. Samples were purified with MinElute Reaction Cleanup Kit (Qiagen) followed by left (0.7x) and right (0.55x) side size selection with SPRIselect Reagent Kit. After ligation of P7 adapters, similar cleaning and size selection, this time only on the left side (0.65x), were performed both before and after PCR amplification with Phusion Master Mix (NEB). The libraries were sent to paired-end sequencing, each in one Illumina HiSeq2000/HiSeq2500 lane (100 bp/125 bp) at the Norwegian Sequencing Centre, Oslo, Norway (http://www.sequencing.uio.no/).
Raw Illumina reads were processed with STACKS v. 1.2355, 56. To demultiplex the individuals and remove low quality data, the program process_radtags was run with the following settings: PstI as restriction enzyme, removal of any read with an uncalled base, discarding reads with low quality scores, and rescuing barcodes and RADtags. After reads from the two libraries were cut to the same length (94 bp), ustacks, cstacks and sstacks were run with only forward reads. Different values for m (minimum number of identical raw reads required to create a stack), M (number of mismatches allowed between loci when processing a single individual) and n (number of mismatches allowed between loci when building the catalog) were tested to find the settings that maximised the number of reliable loci identified from the reads (see Supporting Information Methods S2 for further details). The settings used in the end were m = 3, M = 4 and n = 1. To further optimise the pipeline for tetraploids, each individual was allowed to have four alleles (plus one extra to account for potential sequencing errors) by setting the–max_locus_stacks to 5 (default is 3 when expecting diploids). The export_sql.pl script was used to create a whitelist of loci that contained 1–10 SNPs (snps_l = 1 and snps_u = 10). The program populations was used to link the individuals to their respective population and to produce structure-, vcf-, phylip- and haplotype files, each optimised for a specific purpose. Except for the haplotype file, only one SNP per locus was retained (i.e. the first SNP on each locus) to minimise as much as possible linkage of markers. STACKS is, at least at this point, unable to write out full polyploid genotypes, hence our final filtered datasets were diploid-like. A great majority of SNPs are, however, expected to be bi-allelic at the population level, meaning that it is only information about partial heterozygotes which is lost. Information about the filters used (percentage of individuals and populations required for a locus to be processed) and the number of SNPs obtained in each case can be found in Supporting Information Table S1. As replicated samples clustered together in the initial data analyses, only one per accession was included in the final analyses. The vcf file was converted to the appropriate format with PGDSpider v. 2.0.8.257 for analyses done in GENEPOP v. 4.258, 59 and ARLEQUIN v. 3.5.2.260.
The number of private alleles and the inbreeding coefficient (FIS) for ecotypes and single populations were obtained from running the program populations in STACKS. GENEPOP was used to calculate the number of migrants based on private alleles (Nm) for pairwise comparisons of single populations (corrected for size). Violin plots summarising Nm values were constructed using the library vioplot (available from https://CRAN.R-project.org/package=vioplot) in R v. 3.1.2. AMOVAs were run in ARLEQUIN to estimate genetic differentiation among populations and among higher level groups (ecotypes and geographical areas). Analyses using ecotypes were run separately for the two geographical areas. The analysis for Lofoten was done both with and without the spring population SL1 (Himmeltind), as this population turned out to be genetically more similar to the beach populations than to the other spring populations.
The structure file was used to perform a PCA with the R package adegenet v. 1.4–161, 62 in R v. 3.2.563 using allele frequencies centred to mean zero and scaled, missing values treated as zero, and Euclidean as distance measure. One individual (MKB12–4–17) had a slight outlier position and was removed in the final PCA to allow for better resolution of the remaining individuals. Population structure was further investigated with STRUCTURE v. 2.3.364 using the admixture model and correlated frequencies. A tetraploid input file was constructed by using the recessive allele option65 and ploidy set to four to allow for ambiguity in partial polyploid heterozygotes66. The analysis was run with K = 1–13, 10 runs for each K, 1 million iterations and burn-in of 100,000 using the Lifeportal at the University of Oslo (https://lifeportal.uio.no/). Results were summarised in STRUCTURE HARVESTER web v. 0.9.9467 and CLUMPAK beta v.68, producing likelihood and deltaK graphs69. The optimal number of groups converged to the same solution for all replicate runs (confirmed by inspecting the plots) and was visualised using DISTRUCT v. 1.170 and as pie charts on a map of Northern Norway using QGIS v. 2.4.071. The map layer was extracted from GADM version 1.072.
The phylip file was used to produce a phylogenetic network in SPLITSTREE473. Splits were created from Jukes Cantor distances and visualised as a neighbour net with each end node representing an individual. TREEMIX v. 1.1274 was used to address historical relationships between populations. Using VCF-tools v. 0.1.1275 and PLINK v. 1.9076, the vcf file was converted to a frequency file that could be transformed to a treemix file using the plink2treemix script available for TREEMIX (https://bitbucket.org/nygcresearch/treemix/downloads). TREEMIX was run with a Scottish C. officinalis population from Aberdeenshire (included in the RADseq libraries) as outgroup, visualised in R and illustrated in combination with the STRUCTURE pie charts. The number of migration events was tested by starting at zero and adding one by one until the residual plot stopped improving.
To detect possible RADseq loci under selection, BAYESCAN v. 2.142, 43, 77 was used with default settings. The haplotype file produced from populations was used together with a python script to create the input file (containing haplotype information) for BAYESCAN78. Ecotypes were tested in pairwise comparisons between the likely ancestral ecotype (beach) and the estuary and spring ecotypes, respectively. Tests were performed for each geographical area (Troms and Lofoten) separately and then compared to look for possible common outlier loci. The program sort_read_pairs.pl in STACKS was used to collect the reverse reads (the read pairs) of the outlier loci, and of 1,000 random loci of the catalog in order to construct a reference set for further enrichment analyses. The program exec_velvet.pl in STACKS was used to extend the contigs of the outlier and reference loci. The outlier loci for each comparison and the reference set were annotated and used for further GO enrichment analyses in BLAST2GO v.3.2.779. Fisher’s exact tests were implemented at a threshold p-value of 0.05. The enriched GO terms from each comparison were summarised, applying thinning based on semantic similarity, and visualised with REViGO80.
The STACKS-pipeline as well as TREEMIX and BAYESCAN analyses were run on the Abel cluster, owned by the University of Oslo and the Norwegian metacentre for High Performance Computing (NOTUR).
The M13-tailing approach from Schuelke81 was used to test twenty primers developed for other Brassicaceae taxa (Arabidopsis, Brassica and Draba; Supporting Information Table S2) for co-amplification in 15 Cochlearia individuals. Six microsatellites successfully amplified and were used to analyse 10 individuals from each of the 12 Cochlearia populations from Northern Norway, following the protocol by Vik et al.82 except that 10 μl PCR reaction volumes were used. The annealing temperature used for each microsatellite after optimisation is given in Supporting Information Table S6. At least five replicates and one negative control were included per 96-well plate.
Microsatellite genotypes (based on allele sizes) were assessed in GENEMAPPER v. 3.7 (Life Technologies/Applied Biosystems). The automated scoring was manually edited to make sure that the scoring was plausible, i.e. tetraploids had not more than four alleles, and replicates had identically scored profiles. The R package POLYSAT v. 1.383 was used to construct a tetraploid input file, allowing ambiguity in partial heterozygotes, which was analysed in STRUCTURE with the same settings as for the RADseq data. FIS was calculated with SPAGeDI (Spatial Pattern Analysis of Genetic Diversity) that offers a way to estimate the allele frequencies in polyploids by assuming that each of the alleles in a partial heterozygote has an equal likelihood of being present more than once66.
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We thank Pavel Trávníček for running the flow cytometry analyses, Anna Mazzarella and Emiliano Trucchi for help with initial STACKS analyses and python scripts, and Charlotte Bjorå and Odd Stabbetorp for discussions on Cochlearia. The project was supported by the Nansen Foundation, Systematics Research Fund, S.G.Sønneland Foundation, and Professor Rathke, Professor Collett and Professor Wille’s Legacy. M.K.B., M.T.L and O.P were in part funded through an Austrian Science Fund project (FWF Y661-B16).
M.K.B., A.K.B., O.P. and I.N. planned and designed the research; M.K.B., A.K.B. and I.N. collected the plants; M.K.B. and M.T.L. compiled and processed the data; M.K.B. analysed the data. M.K.B., A.K.B., O.P. and I.N. interpreted the results and wrote the manuscript.
Correspondence to Marie K. Brandrud.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. V.


This decision will be important to federal criminal defense practitioners dealing with evidence obtained with wiretap orders issued under 18 U.S.C. § 2510 et seq, as a unanimous Court clarifies the application of United States v. Giordano, 416 U.S. 505 (1974), to suppression challenges under 18 U.S.C. § 2518(10)(a)(ii).
A federal district court in Kansas authorized police to intercept communications on cell phones of various persons, including the Dahdas, who were suspected of drug trafficking. The wiretap orders authorized interception of calls in any other jurisdiction within the U.S. But under 18 U.S.C. § 2518(3) a wiretap order may allow interception of communications only if they are “within the territorial jurisdiction of the court in which the [issuing] judge is sitting….” So the Dahdas moved to suppress the evidence obtained under the orders, citing § 2518(10)(a)(ii), which requires suppression when the wiretap order is “insufficient on its face….” (Slip op. at 2-5).
The Tenth Circuit refused to suppress the evidence obtained under the orders. Like most other federal appeals courts facing wiretap suppression claims (including the Seventh, United States v. Lawson, 545 F.2d 557, 562 (7th Cir. 1975)), it invoked Supreme Court precedent holding that not every failure to comply with a provision of the wiretap statute renders the interception of wire or oral communications unlawful. Instead, suppression is required only if the statutory provision is one “that directly and substantially implement[s] the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” United States v. Giordano, 416 U.S. 505, 527 (1974). The Tenth Circuit held that the jurisdictional limitation doesn’t advance the statute’s “core concerns” of protecting privacy or establishing uniformity in interception of wire and oral communications, so suppression isn’t required. (Slip op. at 5).
The Orders do contain a defect, namely, the sentence authorizing interception outside Kansas…. But not every defect results in an insufficiency. In that sentence, the District Court “further” ordered that interception may take place “outside the territorial jurisdiction of the court.” …. The sentence is without legal effect because, as the parties agree, the Orders could not legally authorize a wiretap outside the District Court’s “territorial jurisdiction.” But, more importantly, the sentence itself is surplus. Its presence is not connected to any other relevant part of the Orders. Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court’s territorial jurisdiction. As we discussed above, a listening post within the court’s territorial jurisdiction could lawfully intercept communications made to or from telephones located within Kansas or outside Kansas. …. Consequently, every wiretap that produced evidence introduced at the Dahdas‘ trial was properly authorized under the statute.
As we noted in our post on the cert grant, Wisconsin has a wiretap statute based on federal law, and § 968.28 requires an order for interception to be issued by “the chief judge of the judicial administrative district for the county where the interception is to take place….” This looks comparable to the territorial jurisdiction limitation in § 2518(3), as it implies an authorization from the chief judge of one administrative district can’t be used to intercept a communication made in a different district. We speculated that the Court’s decision in this case might affect state practice under our counterpart statute, but given how the Court resolved the issue, that is not the case. Here’s why.
In State v. House, 2007 WI 79, 302 Wis. 2d 1, 734 N.W.2d 140, our supreme court applied § 968.30(9)(a) (our counterpart to § 2518(10)(a)) to decide whether suppression was required where a wiretap order included both crimes for which interception is authorized under our statute and crimes for which interception is not authorized. House took precisely the same approach as the Supreme Court in Dahda. It limited its use of Giordano to the “unlawfully intercepted” clause in § 968.30(9)(a), and read the “insufficient on its face” clause to not require suppression where the order contained additional interception authority not included in the statute—i.e., where the order “included too much.” House, 302 Wis. 2d 1, ¶¶37-38. Because our court came to the same conclusion as the Supreme Court, House is still standing.


The following information is in response to your request for a legal opinion on post-Government employment restrictions because you contemplate working for a DoD Contractor within two years after you leave/left the Department. To assist us, you submitted information in your request that I have incorporated in this opinion.
My advice with respect to these matters is advisory only and is provided in accordance with section 2641.105 of title 5, Code of Federal Regulations. I am providing this advice in my official capacity, on behalf of the United States, and not as your representative. Neither the information you provided to receive this advice, nor the provision of this letter, creates an attorney-client relationship between you and an attorney rendering such advice. The information provided to me is not confidential and is necessary to provide written ethics advice. Further, the advice is based upon the information provided in your questionnaire [and during your meeting with me].
There are a number of restrictions applicable to your post-Government employment activities. I want to emphasize recent restrictions imposed by section 847 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). Certain current or former DoD officials, who within two years of leaving DoD expect to receive compensation from a defense contractor, must request and receive a written opinion regarding the applicability of post-employment restrictions to activities that official may undertake on behalf of a defense contractor before receiving pay. It applies if you are a current or former DoD official who participated personally and substantially in an acquisition with a value in excess of $10M while serving in: (1) an Executive Schedule position; (2) a Senior Executive Service position; (3) a general or flag officer position; or (4) in a position of program manager, procuring contracting officer, administrative contracting officer, source selection authority, member of the source selection evaluation board, or chief of a financial or technical evaluation team.
You served in one of these covered positions, that is in a [identify from those above] position, and you personally and substantially participated in an acquisition valued in excess of $10M, the [Name] acquisition, explained in greater detail herein. Accordingly, you are required to receive an ethics opinion that addresses post-Government employment restrictions as they pertain to your employment with [Contractor Employer Name]. Should you leave your prospective position with [Contractor Employer Name] and obtain employment with any other defense contractor within the two-year period after you depart DoD service, you are required to seek another ethics opinion.
Background. You have served as the [DoD Position] and will terminate your current employment on [Date]. You intend to start your new employment as [Title of position] at [Contractor Employer Name] on or about [Date]. [Contractor Employer Name] is a DoD contractor. You signed a Disqualification memorandum on [Date], indicating your intention to seek employment with it. You also provided information concerning your DoD duties and a synopsis of the duties to be performed by you in your prospective employment with [Contractor Employer Name] with your request for an opinion. [Additionally, we met on [Date]].
a. Paragraph describes duties during last year of Federal service.
b. Paragraph describes prospective duties with future employer.
Discussion. Once an individual has left Government service, there is a wide array of post-employment restrictions that are applicable to former Government employees. The following is a synopsis of these applicable restrictions.
Title 18, United States Code, Section 207 (18 U.S.C. § 207). The primary source of post-Government employment restrictions for former Federal employees or officers is found at 18 U.S.C. § 207. The intent of this statute is to prevent former Government employees or officers from exerting undue influence gained from Government employment and using information gained while working for the Government to unfairly benefit a new employer. While none of these title 18 provisions bar any individual, regardless of rank or position, from accepting employment with any private or public employer after Government service, section 207 prohibits individuals from engaging in certain activities on behalf of persons or entities other than the United States, whether or not done for compensation. These statutorily restricted activities are representations of other entities before United States officials. None of the section 207 restrictions bar self-representation.
Lifetime ban. Title 18 U.S.C. § 207(a) places a permanent, life-time ban on employees of the Federal government, prohibiting them from representing others on “particular matters.” Specifically, the statute prescribes criminal penalties for any employee or officer who, after he terminates his employment, knowingly makes, with the intent to influence, any communication with or appearance before any person employed by the United States, on behalf of another in connection with a particular matter. The particular matter must be one in which (a) the United States is a party or has a direct and substantial interest; (b) the person participated personally and substantially as an employee or officer; and (c) there was a specific party involved at the time of such participation.
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. General rule-making is usually excluded from the term “particular matter,” since general rule-making seldom involves specific parties. Consequently, it is possible that an employee who participated in a rule-making while employed by the Government will, after leaving Government service, be able to appear before his former agency concerning the application of the rule to his new private sector employer without violating the lifetime restrictions. The term does not encompass any matter before the Government; only those matters that arise to particular matters. The provision further requires that an employee’s official participation in a particular matter must have taken place at a time when the matter involved a non-Federal party (or parties) and also involve such a party or parties at the time of the proposed representation, although these can be different parties. Finally, the restriction remains for the lifetime of the particular matter. For example, when a contract is re-competed and awarded, the new contract is generally considered a new particular matter.
To participate “personally” means directly, and includes participation of a subordinate if actually directed by you in the matter.
To participate “substantially” means that your involvement is either of significance to the matter or forms a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality may be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving may be substantial. In addition to approval, other acts may also be considered “substantial,” such as participation in a critical step.
Appearance and Communication. These are the terms contemplated by the act of representation, which should not be considered a formal representation as when an attorney represents a client. A communication occurs when you impart or transmit 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 those communications with respect to which you intend that the information conveyed will be attributed to you, although it is not necessary that any employee of the United States actually recognize you as the source of the information. An appearance occurs when you physically present yourself 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 you. Mere presence in a meeting may be considered an appearance. Behind-the-scenes or in-house assistance to a private employer is legally permissible. Although you are unable to telephone, sign your name to a letter addressed to, or attend a meeting with, a Government official, you may legally tell your employer the name of the Government employee to call or write, or with whom to meet.
The restriction prohibits only those communications and appearances that are made to a Federal employee with the “intent to influence,” which include any that may be interpreted as an attempt to persuade that employee to take action. An “intent to influence” the United States may be found if the communication or appearance is made for the purpose of seeking a discretionary Government ruling, benefit, approval, or other action, or is made for the purpose of influencing Government action in connection with a matter which the former employee knows involves an appreciable element of dispute concerning the particular Government action to be taken. Accordingly, the restriction is inapplicable to a communication or appearance involving purely social contacts, a request for publicly available documents, or a request for purely factual information or the supplying of such information.
The communication or appearance must be made on behalf of someone else. You may always represent yourself. Note that the restriction does not apply to communications or appearances before Congress.
Accordingly, the representation ban of 18 USC 207(a)(1) is applicable to you as an employee of [Contractor Employer Name], so you may not represent [Contractor Employer Name] for the lifetime of the particular matters at a[. and others if applicable] above. You are prohibited from representing any other non-Federal entity (not just the prime or sub-contactors associated with these actions) before any Executive (or Judicial) Branch employee concerning those matters.
Please note that this list of particular matters is not meant to be exclusive or exhaustive and is based on the post employment information you provided. There may be other particular matters in which you personally and substantially participated. Should you recall other matters or should they come to your attention while serving as a support contractor, you should be sensitive to other matters in which you personally participated and bring them to our attention for further consideration and analysis.
Two-year ban. Under the provisions of 18 U.S.C. § 207(a)(2), you have a two-year ban on attempting to influence Federal officials on behalf of another on particular matters that were under your official responsibility during your last year of Government service. The two-year ban begins to run when your Federal employment terminates and applies even if you did not personally or substantially participate in the matter. As with section 207(a)(1), this ban applies to representing another party before the United States (except Congress), with the intent to influence. Behind-the-scenes or in-house assistance is legally permissible.
“Official responsibility” is defined as the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, to approve, disapprove, or otherwise direct Government action. Accordingly, a matter is under your “official responsibility” if you had the power, either directly or through a subordinate, to approve, disapprove, or otherwise direct a Government action. Those areas assigned by statute, regulation, executive order, or job description usually determine the scope of an employee’s official responsibility. All particular matters under consideration in an agency are under the official responsibility of the agency head, and each is under that of any intermediate supervisor having responsibility for the activities of a subordinate employee who actually participates in the matter.
A matter was “actually pending” under a former employee’s official responsibility if the matter was in fact referred to or under consideration by persons within the employee’s area of responsibility. It is important to note that unlike section 207(a)(1), this restriction is triggered simply by virtue of the fact that the particular matter was pending under your official responsibility and does not require that you personally and substantially participated in the matter.
Applicability of 18 U.S.C. § 207(a)(2) to your prospective employment. You should be cautious in your post-Government employment activities in regard to this particular ban. This two-year representation ban applies to any particular matter involving a specific party if you know or reasonably should know that it was pending under your official responsibility as [Position] during your last year with the Government. (5 C. F. R. § 2641.202(j)(7)) For example, the [Name and description] is such a particular matter that was under your official responsibility as [Position] during your last year of Government service and in which you did not participate personally and substantially. Accordingly, you are prohibited from representing [Contractor Employer Name] (or any other non-Federal entity) on this particular matter for a two year period beginning on [Date]. Please bring any other such matters to our attention at any time in the future for further consideration and analysis.
One year “Cooling-Off Period”. Title 18 U.S.C. § 207(c) is a one-year cooling off period applicable to senior officials. It prohibits you from representing another before any officer or employee of a former agency in which you served in your last year, in this instance the Army, on any matter. [Note: If the requestor is a general officer who has been assigned to another component during the last year, then 18 U.S.C. § 207(c) is also applicable to this component and needs to be included throughout the discussion of this section.] During the first year after your departure from the position of [name], you may not communicate to or appear before any Army employee, department, or agency, with the intent to influence, on behalf of any other person and in connection with any matter in which official action by an Army officer or employee is sought. The restriction is measured from the date when you cease to be a senior employee, not from the termination of Government service, unless the two occur simultaneously. This period is designed to prevent any appearance that former senior officers are able to influence government decision improperly because of their former senior positions. You should note that unlike the proscriptions found in 18 U.S.C. §§ 207(a)(1) and (2), which pertain to particular matters, 18 U.S.C. § 207(c) pertains to any matter in which official action by an Army officer or employee is sought.
Applicability of 18 U.S.C. § 207(c) to your prospective duties. The one year cooling off period is applicable starting after termination of your service as [position], on [date], and is applicable to any representation of another before any member or employee of the Army. This provision is very broad in its application as it relates to communications with or appearances before Army employees. For example, you will be unable to attend meetings on behalf of [Contractor Employer Name] at which Army employees are also in attendance, even though you do not speak. This attendance ban applies to meetings with DoD agencies, Joint Commands, or other Government departments or agencies at which Army personnel are assigned or detailed and attend the meeting in question.
Restriction on representing or aiding foreign entities. Title 18 U.S.C. § 207(f) provides that, for a period of one year after leaving a senior position, former senior employees or officers may not knowingly, with the intent to influence a decision of an employee of a department or agency of the United States in carrying out his official duties, represent a foreign entity before any department or agency of the United States, or aid or advise a foreign entity. The restriction is measured from the date when an employee ceases to be a senior employee, not from the termination of Government service, unless the two occur simultaneously. This restriction prohibits a former senior official from representing, aiding, or advising a foreign entity with the intent to influence certain governmental officials.
A “foreign entity" means the government of a foreign country as defined in section 1(e) of the Foreign Agents Registration Act of 1938 (22 U.S.C. § 611) or a "foreign political party.” The government of a foreign country includes any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country (other than the United States) or any part of such country, and includes any subdivision of any such group and any group or agency to which such sovereign de facto or de jure authority or functions are directly or indirectly delegated.
A “foreign political party” includes any organization or any other combination of individuals in a country (other than the United States), or any unit or branch thereof, having for an aim or purpose, or which is engaged in any activity devoted in whole or in part to, the establishment, administration, control, or acquisition of administration or control, of a government of a foreign country or a subdivision thereof, or the furtherance or influencing of the political or public interests, policies, or relations of a government of a foreign country or a subdivision thereof. A foreign commercial corporation will not generally be considered a "foreign entity" for purposes of Section 207(f) unless it exercises the functions of a sovereign.
A former senior official represents a foreign entity when he acts as an agent or attorney for or otherwise communicates or makes an appearance on behalf of that entity to or before any employee of a department or agency. He "aids or advises" a foreign entity when he assists the entity other than by making such a communication or appearance. This ban is broader than that found in 18 U.S.C. §§ 207(a) and (c) because it also prohibits behind-the-scene assistance, if such advice or aid is rendered with the intent to influence an official discretionary decision of a current Federal departmental or agency employee. Such behind-the-scenes assistance to a foreign entity could, for example, include drafting a proposed communication to an agency, advising on an appearance before a department, or consulting on other strategies designed to persuade departmental or agency decision makers to take certain action. Again, such representation, aid, or advice is only prohibited if made or rendered with the intent to influence an official discretionary decision of a current Federal employee. Unlike the prohibitions found in 18 U.S.C. §§ 207(a) and (c), section 207(f) prohibits representation before Congress.
Exceptions. There are exceptions to the restrictions in 18 U.S.C. § 207, including acts pursuant to official U.S. Government duties, and aiding, advising, and representing certain international organizations with prior Secretary of State certification. Restrictions under 18 U.S.C. § 207(c) do not apply to employees of state or local Governments, hospitals, medical research organizations, or degree-granting institutions of higher learning, when making representations on those institutions’ behalf. Additionally, if individuals are not compensated, they may make statements based on special knowledge. Restrictions based on 18 U.S.C. §§ 207(a) and (c), which apply to communications that furnish scientific or technical information, may be waived by the Secretary of Defense. There are special rules regarding testimony under oath. Please consult this office for further guidance.
None of the above restrictions prohibits you from accepting any employment with any person or organization. The restrictions apply only to specific post-Government employment activities—such as representing, aiding, or advising another in connection with certain official matters—not to the mere fact of being employed by any particular entity. Additionally, the only restriction outlined above that prohibits a former executive branch employee from representing others before Congress is 18 U.S.C. 207(f). Self-representation or the expression of personal views that are not advanced as agent or representative of another person, whether or not those views are specifically solicited by the Government, is permissible. Nor do the restrictions outlined above prohibit communications or contacts that are not made with the intent to influence the Government, such as requests for the status of a matter or for publicly available information.
Procurement Integrity Act. I note that the Procurement Integrity Act places restrictions on the acceptance of compensation from a contractor. It specifically provides that a former officer may not accept compensation as an employee of a contractor within a one-year period if the former officer: (1) served, at the time of selection of the contractor or time of award, as the procuring contracting officer, source selection authority, a member of the source selection evaluation board, or chief of a financial or technical evaluation team in a procurement in excess of $10 million; or (2) served as a program manager, deputy program manager or acquisition contracting officer for a contract in excess of $10 million; or (3) personally made a decision to award a contract or task order or delivery order in excess of $10 million to the contractor, or to establish rates applicable to a contract or contracts for that contractor that are valued in excess of $10 million. A program manager is one who actively manages the program cost, performance, and schedule, regardless of the title given to the individual. A Federal official who fits within one of these categories, however, is not prohibited from accepting compensation from any division or affiliate of a contractor, so long as that division or affiliate does not produce the same or similar products or services contract.
Use of Information. You are reminded that you are precluded from using information gained while employed by the agency that is generally not available to the public, (for example, proprietary or source selection information) if the use of that "inside" information would give you or anyone else an unfair financial or commercial advantage. Additionally, 18 U.S.C. §§ 793 and 794 protect and prohibit the use or disclosure of trade secrets, confidential business information, and classified information. Further restrictions are imposed by 10 U.S.C. § 130.
Public Financial Disclosure Report. If you are required to file a Termination Public Financial Disclosure Report, SF 278, please do so within 30 days of your final day of Government service in a covered position. We recommend that you try to complete your report before leaving your position so that we can review it in draft, resolve any issues, and have you sign it electronically in the Financial Disclosure Management (FDM) system on your last day. If you are in Army, you may access FDM through your AKO account using your current password for 180 days after leaving the Department.
Further, while on transition (formerly terminal) leave, there are a number of restrictions applicable to you. While on active duty (including transition leave) military officers are prohibited by 10 U.S.C. § 973(b) from holding a "civil office" with a state or local government. Military personnel on transition leave are authorized to accept a civilian position in the U.S. Government and receive the pay and allowances of that position as well as their military pay and allowances (5 U.S.C. § 5534a). The 6-month waiting period prior to accepting a civilian position has been waived during the current period of national emergency.
Please remember that while on transition leave, you are still an active-duty service member, and the restrictions that apply to you while on active duty still apply. These restrictions include: (1) restrictions on political activities; (2) restrictions on outside employment; (3) prohibition on serving as a registered agent of a foreign principal; and (4) restrictions on representing others to the Federal Government (18 U.S.C. § 205). You should pay particular attention to the proscriptions of 18 U.S.C. § 205, which preclude you, like all Federal employees, from representing [Contractor Employer Name] or any other third party to any Federal agency. This makes problematic the increasingly common practice of contractor personnel physically working in Government offices. Accordingly, military officers are precluded from interacting or appearing in the Federal workplace of any agency as a contractor. Being present in Government offices on behalf of a contractor is a representation, which is prohibited by 18 U.S.C. § 205. Of course, military officers on transition leave may begin work with the contractor, but only "behind the scenes" at a contractor office or otherwise away from the Government workplace. Another issue concerns the appropriate use of permissive temporary duty (PTDY). The purpose of PTDY is to facilitate transition into civilian life for house and job hunting for soldiers. Thus, it is impermissible to work while on PTDY.
Finally, after retirement, you will forfeit your retirement pay if you perform services for a foreign government and have not received prior permission from your Service Secretary and the Secretary of State to do so. Please note that this may include services to the foreign government pursuant to your work as an employee or consultant for a U.S. contractor. Foreign governments may also include educational and commercial entities that are substantially owned or controlled by the government. You must start the request for permission process with your servicing legal office.
Please contact me if circumstances change or there are changes in your work plans or assignment so that I may amend this advice, if necessary. Do not hesitate to contact me at any time with questions that may pertain to these post-employment restrictions. I may be reached at [e-Mail Address], and Official Telephone]. Thank you for your service to our nation.