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

• Decision Date: 30 May 1995
• Docket Number: No. 92-5123,92-5123
• Citation: 56 F.3d 85
• Parties: , 63 USLW 2769, 10 IER Cases 1025 William SANJOUR, et al., Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 85

56 F.3d 85

312 U.S.App.D.C. 121, 63 USLW 2769,

10 IER Cases 1025

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

No. 92-5123.

United States Court of Appeals District of Columbia Circuit.

Argued In Banc Feb. 9, 1994.

Decided May 30, 1995.

Stephen M. Kohn, Washington, DC, argued the cause and filed the briefs for appellants.

Alfred Mollin, Senior Counsel, U.S. Dept. of Justice, Washington, DC, argued the cause for appellees. With him on the briefs were Frank W. Hunger, Asst. Atty. Gen. and John C. Hoyle, Sp. Counsel, U.S. Dept. of Justice, Eric H. Holder, Jr., U.S. Atty., Michael J. Singer, Asst. Director, Scott R. McIntosh, Atty., U.S. Dept. of Justice and R. Craig Lawrence, Asst. U.S. Atty., Washington, DC, entered appearances.

David C. Niblack, Washington, DC, filed the brief for amicus curiae Environmental and Civic Organizations.

R. Craig Kneisel, Asst. Atty. Gen. and Mort P. Ames, Deputy Atty. Gen., Office of the Atty. Gen., Montgomery, AL, for the State of Ala., appeared on the brief pro hac vice for amicus curiae State of Ala.

Before: MIKVA, ^* Chief Judge, WALD, EDWARDS, ^** SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.

Dissenting opinion filed by Circuit Judge SENTELLE with whom SILBERMAN, WILLIAMS and HENDERSON, Circuit Judges, join.

WALD, Circuit Judge:

William Sanjour and Hugh Kaufman--two employees of the Environmental Protection Agency ("EPA")--and the environmental coalition North Carolina Waste Awareness and Reduction Network ("NC WARN") appeal the district court's dismissal of their First Amendment challenge to regulations prohibiting EPA employees from receiving travel expense reimbursement from private sources for unofficial speaking or writing engagements concerning the subject matter of the employees' work, while permitting such compensation for officially authorized speech on the same issues. See Sanjour v. EPA, 786 F.Supp. 1033, 1036 (D.D.C.1992). A panel of this court affirmed the district court's ruling, see Sanjour v. EPA, 984 F.2d 434 (D.C.Cir.1993), but the full court subsequently vacated that decision and set the case for rehearing in banc. See Sanjour v. EPA, 997 F.2d 1584 (D.C.Cir.1993). On rehearing, we find that the government has failed to demonstrate that the interests of the employees and their potential audiences in the speech suppressed "are outweighed by that expression's necessary impact on the actual operation of the government." United States v. National Treasury Employees Union, --- U.S. ----, ----, 115 S.Ct. 1003, 1014, 130 L.Ed.2d 964

(1995) ("NTEU") (internal quotations and citation omitted). We therefore reverse the district court and hold the no-expenses regulations invalid.

I. BACKGROUND

A. Regulatory Background

Prior to 1991, when the first of the regulations at issue here was promulgated, employees of the federal executive could accept travel expense reimbursement except from a prohibited source, i.e., a person or group that had or sought business with, or was regulated by, the employee's agency. Exec. Order No. 11,222 (1965); see also Office of Gov't Ethics Mem. 84 X 5 at 3-4 (May 1, 1984), reprinted in Joint Appendix ("J.A.") at 41, 43-44. All payments other than for actual and necessary travel expenses were prohibited by the honoraria ban in Sec. 501(b) of the Ethics in Government Act of 1978 (codified at 5 U.S.C. app. Sec. 501 (1988 & Supp. V)). ¹

In January 1991, the Office of Government Ethics ("OGE")--charged with establishing the "overall direction" of executive branch policy relating to conflicts of interest, id. at Sec. 402--promulgated a regulation containing an important additional restriction on travel expense reimbursement:

An employee is prohibited by the standards of conduct 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. 1721, 1724-25 (1991) (codified at 5 C.F.R. Sec. 2636.202(b) (1994)). Several months later, EPA distributed to its employees an advisory letter in which it interpreted the OGE regulation narrowly to prohibit expense reimbursement only for travel involving "non-official" appearances; employees could still receive expenses from private sources for speaking about their "official duties or [ ] EPA's responsibilities, policies and programs" so long as "the required prior approvals ... for official travel" were first obtained. EPA Ethics Advisory 91-1 at 3 (Apr. 2, 1991), reprinted in J.A. at 80, 82.

In August 1992, after the district court's decision in this case but prior to argument before the appellate panel, the OGE elaborated its travel reimbursement policy in new, more comprehensive "standards of conduct" governing federal employee compensation. The new regulations on their face prohibit federal employees from "receiv[ing] compensation ² from any source other than the Government for teaching, speaking or writing that relates to the employee's official duties." 57 Fed.Reg. 35,006, 35,063 (1992) (codified at 5 C.F.R. Sec. 2635.807(a) (1994)). ³

The OGE ethics provisions must, however, be read together with regulations of the General Services Administration ("GSA"), promulgated under the authority of Sec. 302 of the Ethics Reform Act of 1989, Pub.L. No. 101-194, 103 Stat. 1716, 1745-47 (codified as amended at 31 U.S.C. Sec. 1353). ⁴ These latter

                regulations permit an agency to "accept payment from a non-Federal source (or authorize an employee to receive such payment on its behalf) with respect to attendance of an employee at a meeting or similar function which the employee has been authorized to attend in an official capacity on behalf of the employing agency."  41 C.F.R. Sec. 304-1.3(a) (1994).  They vest broad authority in agency officials to determine when an employee should be "authorized" to participate in a particular meeting, subject to the limitation that the authorizing agency official determine that granting approval "under the circumstances would [not] cause a person with knowledge of all the facts ... to question the integrity of agency programs or operations."   Id. at Secs. 305-1.3, 1.5.  Absent such a taint, an "authorized" employee may accept travel and accommodation reimbursement in excess of otherwise applicable per diem rates for government-funded travel.  Id. at Secs. 304-1.3(d), 1.6, 1.7. 5  The current OGE and GSA regulations thus harmonize with the EPA's interpretation of the OGE regulation originally challenged by appellants;  the regulatory scheme as a whole allows employees to receive travel and accommodation reimbursement for "official"--or "authorized"--engagements, but not for activities the agency does not approve
                

B. Factual Background

William Sanjour and Hugh Kaufman are EPA employees who, since the late 1970s, have traveled throughout the United States in an unofficial capacity giving speeches that are often critical of EPA policies. They conduct these activities on their own time and depend on travel expense reimbursement from private sources to defray the costs of their speaking engagements.

In late 1991, Sanjour and Kaufman received an invitation from NC WARN to speak in their unofficial capacities at a public hearing concerning a plan to build a commercial hazardous waste incinerator in Northhampton County, North Carolina. Since the ethics regulations in effect at the time prevented the two from receiving compensation for their necessary travel expenses, they were forced to turn down the speaking engagement. NC WARN subsequently cancelled the event.

C. Procedural Background

In October 1991, Sanjour filed a seven-count complaint in district court against the EPA, its Administrator, and other individual defendants, which was later amended to add Kaufman and NC WARN as plaintiffs and the OGE and its director as defendants. Counts I, III, IV, and V of the amended complaint alleged violations of the First Amendment. Counts II and VII advanced statutory causes of action. Finally, Count VI pled a claim of "selective enforcement and selective prosecution of the plaintiffs in violation of the laws and constitution of the United States."

On defendants' motion for summary judgment, the district court dismissed Counts I-V and VII. The court did not consider plaintiffs' First Amendment challenges count-by-count, but rather construed their pleading to mount a single attack under the balancing test "originally enunciated in Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)." Sanjour v. EPA, 786 F.Supp. 1033, 1036 (D.D.C.1992). The court did not say whether plaintiffs' challenge, so construed, was "facial" or "as applied," but concluded that "the challenged regulation withstands constitutional attack" because "it is narrowly tailored to meet a legitimate government objective and is not designed to limit First Amendment freedoms." Id. at 1037.

The court denied summary judgment on plaintiffs' selective prosecution claim--Count VI--on the ground that it "raise[d] disputed questions of material fact." Id. at 1041 n. 15. The court did not specify the precise facts at On plaintiffs' appeal of the district court's disposition of their First Amendment challenge, a panel of this court affirmed. Sanjour v. EPA, 984 F.2d 434 (D.C.Cir.1993). The full court vacated that decision and granted rehearing in banc. Sanjour v. EPA, 997 F.2d 1584 (D.C.Cir.1993). ⁶

issue, but since a claim for selective enforcement depends on the government either "sing[ling] out [a party] from others similarly situated" or pursuing an individual out of "improper[ ] motivat[ion]," see Juluke v. Hodel, 811 F.2d 1553, 1561 (D.C.Cir.1987), further inquiry into the government's actual motivation and its treatment of similarly situated individuals was presumably required.

II. DISCUSSION

A. The Regulations at Issue

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