Sanjour v. E.P.A., 92-5123

• Decision Date: 29 July 1993
• Docket Number: No. 92-5123,92-5123
• Citation: 984 F.2d 434
• Parties: , 61 USLW 2477, 23 Envtl. L. Rep. 20,587 William SANJOUR, et al., Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 434

984 F.2d 434

299 U.S.App.D.C. 304, 61 USLW 2477,

23 Envtl. L. Rep. 20,587

William SANJOUR, et al., Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, et al.

No. 92-5123.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 21, 1992.

Decided Jan. 29, 1993.

Rehearing Denied July 29, 1993.

[299 U.S.App.D.C. 306] Appeal from the United States District Court for the District of Columbia, No. 91-02750.

Stephen M. Kohn, Washington, DC, for appellants.

Alfred Mollin, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen.; Jay B. Stephens, U.S. Atty.; and John C. Hoyle, Atty., Dept. of Justice, Washington, DC, were on the brief, for appellees. Michael Jay Singer, Washington, DC, entered an appearance for appellees.

David C. Niblack, Washington, DC, was on the brief for amicus curiae Environmental and Civic Organizations in support of appellants.

James H. Evans, Atty. Gen.; R. Craig Kneisel, Asst. Atty. Gen.; Montgomery, AL, and Mort P. Ames, Deputy Atty. Gen., Selma, AL, were on the brief for amicus curiae State of Alabama in support of appellants.

Before WALD, SILBERMAN, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Circuit Judge WALD.

SENTELLE, Circuit Judge:

Appellants challenge the constitutionality of an ethics regulation allowing employees of the Environmental Protection Agency ("EPA") to accept reimbursement for travel expenses they incur in giving "official" speeches, but not "unofficial" speeches, as violative of their First Amendment rights. The District Court granted summary judgment against them on their facial challenge, but allowed the litigation to proceed as to their as-applied challenge under the First Amendment. 786 F.Supp. 1033. We, too, reject their facial challenge and therefore affirm. We do not pass on their selective enforcement claim, which remains pending before the District Court.

I.

Appellants William Sanjour and Hugh Kaufman have been employed by the EPA in Washington, D.C. since the 1970s. During that time, both have traveled across the country giving unofficial speeches criticizing the policies of the EPA. In the past, they routinely accepted reimbursement from the organization sponsoring their speeches for their travel and related expenses. Under prior law, they were allowed to do so, as long as the sponsoring organization was not a "prohibited source" (i.e., did no business with, and was not regulated by, the EPA) and as long as they gave the speeches on their own time without implying that they presented anything other than their personal opinions. See Office of Gov't Ethics Memorandum No. 84 X 5 (May 1, 1984).

On January 17, 1991, however, the Office of Government Ethics ("OGE") adopted a rule that interprets existing ethics law to preclude any federal employee from "receiving compensation, including travel expenses, for speaking or writing on subject matter that focuses specifically on his official duties or on the responsibilities, policies and programs of his employing agency." 56 Fed.Reg. 1,721, 1,724 (1991) (to be Because the OGE/EPA regulation barred them from accepting travel-expense reimbursement for unofficial speech, Sanjour and Kaufman declined speaking invitations by organizations located outside the Washington, D.C. metropolitan area. Among the organizations both turned down was appellant North Carolina Waste Awareness and Reduction Network ("NC WARN"). NC WARN, a North Carolina environmental coalition, had invited them to speak about EPA policies in an unofficial capacity at a public hearing concerning a plan to build a commercial hazardous waste incinerator in Northampton County, N.C. When Sanjour and Kaufman declined its invitation, NC WARN cancelled the public hearing.

                [299 U.S.App.D.C. 307] codified at 5 C.F.R. § 2636.202(b) (1992)). 1  The EPA distributed this regulation to its employees with an Ethics Advisory expressing its understanding that the rule allows expense reimbursement for "official" but not "unofficial" speech.   See EPA ETHICS ADVISORY 91-1, at 3 & n. 5 (Apr. 2, 1991) (opining that "[e]mployees may not accept non-official travel expenses ... [but] [w]ith the required prior approvals, employees may continue to accept travel reimbursement for official travel"). 2  Though the Ethics Advisory does not define the terms "official" and "unofficial," the EPA has elsewhere provided that speech or writing is official "if it results from a request to EPA to furnish a speaker, author or editor ... [or] is tendered because of the employee's EPA position rather than the employee's individual knowledge or accomplishments."  40 C.F.R. § 3.503 (1991)
                

Appellants then filed this lawsuit against appellees, the EPA, the OGE, the EPA Administrator and the OGE Director, and others not before this Court, challenging the legality of the OGE/EPA regulation on both statutory and First Amendment grounds. The District Court granted appellees' motion for summary judgment on the statutory claims and on the facial challenge under the First Amendment. However, the District Court held that appellants' as-applied challenge involved disputed issues of material fact and denied summary judgment. Sanjour v. EPA, 786 F.Supp. 1033 (D.D.C.1992). The as-applied challenge therefore remains pending before the District Court.

Before this Court, appellants, with support from the State of Alabama and a host of environmental organizations from various localities as amicus curiae, renew their contention that the OGE/EPA regulation is overbroad and underinclusive and therefore, on its face, violates the First Amendment. We emphasize that the facial challenge is all that is before us today; appellants elected not to appeal the District Court's dismissal of their statutory claims, and their selective enforcement claim remains before the District Court. Our task in this case, then, is a narrow one--we must decide whether the OGE/EPA regulation, on its face, violates the First Amendment on the asserted grounds. ³ II.

The parties disagree on the level of scrutiny applicable to this case. Appellants claim that we must apply strict scrutiny, under which the government "must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." Simon & Schuster v. Members of the New York State Crime Victims Bd., --- U.S. ----, ----, 112 S.Ct. 501, 509, 116 L.Ed.2d 476 (1991) (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231, 107 S.Ct. 1722, 1729, 95 L.Ed.2d 209 (1987)). By contrast, appellees argue that we must, in the Supreme Court's words, balance "the interests of the [public 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." Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). We briefly describe the precedents underlying each position before addressing the merits of the parties' claims.

A.

In Simon & Schuster, the Court unanimously struck down New York's "Son of Sam" law, which required that income from an accused or convicted criminal's description of his crime be turned over to a fund for compensation of the criminal's victims and creditors. In doing so, the Court noted that the law restricted the speech both of criminals seeking to write about their crimes and publishers, such as Simon & Schuster, that wished to publish such works. --- U.S. at ----, 112 S.Ct. at 508. Holding that from either perspective, the law "establishes a financial disincentive to create works with a particular content," the Court applied strict scrutiny. Id. at ----, 112 S.Ct. at 509.

Almost twenty-five years earlier, in Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Court used a deferential balancing test in a case brought by a discharged public school teacher. Ruling unanimously that the teacher could not be fired for having written a letter to the local newspaper criticizing the school board, the Court balanced "the interests of the teacher, 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. at 568, 88 S.Ct. at 1734-35. The rationale for not applying strict scrutiny was 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.

B.

Appellants offer three arguments to support their claim that strict scrutiny, rather than the Pickering balancing test, applies here. They assert that Simon & Schuster requires courts to apply strict scrutiny to all financial burdens on speech, regardless of whether the speaker is a public employee. In support of this contention, appellants cite a passage in Simon & Schuster stating that "[t]he Government's power to impose content-based financial disincentives on speech surely does not We reject this selective reading of Simon & Schuster. It is plain to us that the Court, by the quoted phrase, merely intended to make clear that it is no defense to a First Amendment claim that the claimant is not a member of the media. Putting the quoted statement in context shows this to be so:

                [299 U.S.App.D.C. 309] vary with the identity of the speaker."  --- U.S. at ----, 112 S.Ct. at 509.   Appellants claim this language mandates that we cannot apply a lower standard in the public employment context
                

Finally, the Board claims that even if the First Amendment prohibits content-based financial regulation specifically of the media, the Son of Sam law is different, because it imposes a general burden on any "entity" contracting with a convicted person to transmit that person's speech....