990 F.2d 1271 (D.C. Cir. 1993), 92-5085, National Treasury Employees Union v. U.S.

Docket Nº:92-5085, 92-5139, 92-5170, 92-5235, 92-5236 and 92-5237.
Citation:990 F.2d 1271
Party Name:NATIONAL TREASURY EMPLOYEES UNION, et al., Appellants, v. UNITED STATES of America, et al., NATIONAL TREASURY EMPLOYEES UNION, et al., Appellants, v. UNITED STATES of America, et al., Peter G. CRANE, et al., Appellants, v. UNITED STATES of America, et al., NATIONAL TREASURY EMPLOYEES UNION, et al., v. UNITED STATES of America, et al., Appellants. A
Case Date:March 30, 1993
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1271

990 F.2d 1271 (D.C. Cir. 1993)



UNITED STATES of America, et al.,



UNITED STATES of America, et al.,

Peter G. CRANE, et al., Appellants,


UNITED STATES of America, et al.,



UNITED STATES of America, et al., Appellants.



UNITED STATES of America, et al., Appellants.

Peter G. CRANE, et al.,


UNITED STATES of America, et al., Appellants.

Nos. 92-5085, 92-5139, 92-5170, 92-5235, 92-5236 and 92-5237.

United States Court of Appeals, District of Columbia Circuit.

March 30, 1993

As Amended April 8, 1993. Rehearing Denied in No. 92-5085 Sept. 21, 1993.

Argued Nov. 6, 1992.

Page 1272

Alfred Mollin, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and John C. Hoyle, were on the brief, for appellants. Michael Jay Singer entered an appearance for appellants.

Gregory O'Duden, with whom Elaine Kaplan, Barbara A. Atkin, Mark Roth, and Anne Wagner were on the brief, for appellees. John Vanderstar and Arthur Spitzer were on the reply brief for appellees. David F. Klein, Steven R. Shapiro, and Elizabeth Symonds entered an appearance for appellees.

Roger M. Witten, Carol F. Lee, Kenneth P. Stern, and Rebecca Arbogast were on the brief for amicus curiae Common Cause. Leslie A. Harris entered an appearance for amicus curiae Common Cause.

Before: WILLIAMS, SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Concurring opinion filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge SENTELLE.


In § 501(b) of the Ethics in Government Act, 5 U.S.C. app. § 501 et seq., Congress provided that "[a]n individual may not receive any honorarium while that individual is a Member [of Congress, or] officer or employee [of the federal government]." Congress defined "honorarium" as "a payment of money or anything of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual's official duties or the payment is made because of the individual's status with the Government) ... excluding any actual and necessary travel expenses." Id. § 505(3). The Office of Government Ethics has promulgated regulations implementing the Act for officers and employees of the executive branch. See 56 Fed.Reg. 1721 (January 17, 1991) (to be codified at 5 CFR § 2636.101ff.); 57 Fed.Reg. 601 (January 8, 1992) (amending 5 C.F.R. § 2636.203).

Employees of the executive branch, and several unions of such employees, responded to enactment of the honorarium ban by challenging it in district court as a violation of their rights under the First Amendment. The National Treasury Employees Union was certified as the class representative for all affected executive branch employees below the grade of GS-16, 1 and the various cases were consolidated.

On cross motions for summary judgment, the district court found the ban a violation of the First Amendment in so far as it affected the speech of executive branch employees. 2 It enjoined enforcement, but stayed its judgment pending appeal. 788 F.Supp. 4. The government appeals from the judgment and injunction, and plaintiffs appeal from the stay. We affirm the judgment of the district court on the merits; this moots the problem of the stay.

* * *

Because the case involves a government burden on the speech of its own employees, Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), supplies the standard for judicial review of the congressional action. In Pickering a county had dismissed a teacher for publishing in a newspaper a letter criticizing the county school board's allocation of funds.

Page 1273

While saying that the state could not make public employment conditional upon relinquishment of "the First Amendment rights [employees] would otherwise enjoy as citizens to comment on matters of public interest", id. at 568, 88 S.Ct. at 1734, the Court also said that "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id. It identified the "problem" as being "to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id.

As Pickering defines the employees' speech interests in terms of "matter[s] of public concern", see also Connick v. Myers, 461 U.S. 138, 146-47, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708 (1983), we pause briefly to consider whether this case involves such matters. In Connick the Court spoke broadly of expression "relating to any matter of political, social, or other concern to the community." Viewing the idea of "public concern" in the abstract, one might suppose it excluded some of the topics on which plaintiffs have spoken or written--such as the technology of Civil War ironclads. See Joint Appendix ("J.A.") at 119.

But Connick makes clear that the "public concern" criterion does not require any great intensity or breadth of public interest in the subject. It is thus far broader than the sort of "public questions" in which a person must be involved for application of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296 (D.C.Cir.1980). In Connick the employee had circulated a questionnaire asking fellow employees for their views on such matters as the level of office morale, their confidence in various supervisors and the need for a grievance committee. These the Court wrote off as "mere extensions of Myers' dispute over her transfer". 461 U.S. at 148, 103 S.Ct. at 1690. In contrast, it found a question on whether employees ever felt "pressured to work in political campaigns on behalf of office supported candidates" to be of interest to the community. Id. at 149, 103 S.Ct. at 1691. The contrast, then, was between issues of external interest as opposed to ones of internal office management. See also id. at 146, 103 S.Ct. at 1689 (invoking need for officials to "enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary"). Accordingly, we read the "public concern" criterion as referring not to the number of interested listeners or readers but to whether the expression relates to some issue of interest beyond the employee's bureaucratic niche. None of the samples of past or intended expression mentioned by plaintiffs involves such a parochial concern.

Although § 501(b) prohibits no speech, it places a financial burden on speech--denial of compensation. While the employees' First Amendment interest is therefore somewhat less weighty than under a flat ban, there can be no doubt that the burden counts for purposes of the Pickering balance. In Simon & Schuster, Inc. v. New York State Crime Victims Board, --- U.S. ----, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991), the Supreme Court considered a statute that singled out compensation for writings by a person convicted or accused of a crime on the subject of his crime. Though at times seeming to characterize the statute as content-based, see, e.g., id. at ----, 112 S.Ct. at 508, the Court ultimately declined to say whether it was or not, and invalidated it as not "narrowly tailored" enough even under "the more lenient tailoring standards applied" to content-neutral provisions, id. at ---- - ---- n. **, 112 S.Ct. at 511-12 n.**. The point that the burden was simply denial of compensation played no apparent role in the Court's "tailoring" analysis. Similarly, the financial character of the limitation here affects only the "weight" of the employees' interest in the Pickering balance.

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Neither party disputes that the government has a strong interest in protecting the integrity and efficiency of public service and in avoiding even the appearance of impropriety created by abuse of the practice of receiving honoraria. Indeed, in Keeffe v. Library of Congress, 777 F.2d 1573, 1581 (D.C.Cir.1985), we identified "prevent[ing] erosion of congressional and public confidence in the integrity of the [Congressional Research] Service" as a compelling justification for limits on its analysts' participation in political activities. We can safely assume for the purposes of this opinion that the interest in avoiding the appearance of impropriety is strong enough to outweigh government employees' interest in engaging in speech for compensation where the compensation creates such an appearance, and so is strong enough to justify a ban on compensation in those circumstances. Thus, for some of § 501(b)'s applications--perhaps many of them--the Pickering balance supports its constitutionality.

That conclusion will not save § 501(b), however, if it either is "overbroad" or manifests a want of "narrow tailoring." Plaintiffs in their attack on the statute use the terms more or less interchangeably. So has the Supreme Court, on occasion, when speaking of the substance of the doctrines, i.e., what they demand of a statute in terms of focus on a genuine evil. Thus in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), the Court started its analysis of the...

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