Sanjour v. U.S.E.P.A., No. CIV. A. 91-2750 SSH.

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtStanley S. Harris
Citation7 F.Supp.2d 14
PartiesWilliam SANJOUR, Hugh B. Kaufman, and North Carolina Waste Awareness and Reduction Network, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, William Reilly, the United States of America, Office of Government Ethics, and Stephen D. Potts, Defendants.
Decision Date10 April 1998
Docket NumberNo. CIV. A. 91-2750 SSH.
7 F.Supp.2d 14
William SANJOUR, Hugh B. Kaufman, and North Carolina Waste Awareness and Reduction Network, Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, William Reilly, the United States of America, Office of Government Ethics, and Stephen D. Potts, Defendants.
No. CIV. A. 91-2750 SSH.
United States District Court, District of Columbia.
April 10, 1998.

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Stephen M. Kohn, David K. Colapinto, Washington, DC, for Plaintiffs.

Kevin M. Simpson, DOJ, Civil Div., Washington, DC, for Defendants.

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OPINION

STANLEY S. HARRIS, District Judge.


This matter is before the Court pursuant to the Court of Appeals' decision in Sanjour v. Environmental Protection Agency, 56 F.3d 85 (D.C.Cir.1995) ("Sanjour"). Currently pending are plaintiffs' motion for a final order, defendants' opposition thereto and motion for a final order, plaintiffs' reply, defendants' reply, and plaintiffs' surreply. Also pending are plaintiffs' motion for leave to file an application for attorney's fees and costs, defendants' opposition thereto, and plaintiffs' reply. Upon consideration of the entire record, the Court shall enter a separate Judgment in accordance with the reasoning set forth below.

BACKGROUND

The history of this litigation is discussed at length in this Court's prior Opinion and in the Court of Appeals' en banc opinion. See Sanjour v. EPA, 786 F.Supp. 1033 (D.D.C. 1992), aff'd 984 F.2d 434 (D.C.Cir.1993), decision vacated and reh'g granted, 997 F.2d 1584, rev'd and remanded, 56 F.3d 85 (D.C.Cir.1995) (en banc). In brief, this matter arises from a First Amendment challenge by William Sanjour and Hugh Kaufman — two employees of the Environmental Protection Agency ("EPA") — and the North Carolina Waste Awareness and Reduction Network ("NC WARN") 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.

This Court granted summary judgment to defendants on all counts except a single claim of selective prosecution, and was affirmed by a panel of the Court of Appeals. A subsequent en banc decision, however, invalidated the "no-expenses" prohibition on First Amendment grounds and remanded the case "for proceedings consistent with this opinion." Sanjour, 56 F.3d at 88, 99.

DISCUSSION

I. Motions for Issuance of a Final Order

Plaintiffs move this Court to declare that the

regulations, policies, memoranda and directives of defendants which prohibit plaintiffs from paying or receiving reasonable travel reimbursements for non-official speech which concerns the responsibilities, programs and policies of the EPA, OGC [sic] and United States government are invalid ... and ... unconstitutional under the First Amendment, as they relate to plaintiffs, federal government employees who work below the grade level of senior executive service, and outside organizations similarly situated to plaintiff [NC WARN].

Pls.' Proposed Order at 1-2. Plaintiffs further ask this Court to enjoin defendants from enforcing "against plaintiffs, and against all federal employees below the senior executive service level of employment, ... all restrictions placed on their reimbursement for reasonable travel expenses as prohibited on page 3 of EPA Ethics Advisory 91-1, under 5 C.F.R. § 2635.807(a), 5 C.F.R. § 2636.202(b) and under 41 C.F.R. § 304-1.3." Id. at 1.

The government challenges plaintiffs' requested relief on three grounds. First, the government contends that plaintiffs' proposed order is overbroad because it provides for a government-wide injunction. Defendants argue that because plaintiffs did not litigate this case as a class action, any relief entered by this Court should be restricted to the plaintiffs.

The Sanjour decision explicitly contemplates an injunction granting government-wide relief. The Court of Appeals explained that the test for "determining the constitutionality of a statute or regulation restricting government employee speech requires the reviewing court to consider ... the `interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression.'" Sanjour, 56 F.3d at 92 (quoting United States v. National Treasury Employees Union, 513 U.S. 454, 468, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995)). The Court of Appeals

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went on to note that this test "requires the court to go beyond the facts of the particular case before it." Id. 56 F.3d at 92. The only limitation on the court's decision was its statement that, though it was looking beyond the particular facts of the plaintiffs' case:

[W]e cannot go so far as to include every possible application of the challenged scheme .... [T]he balancing of interests relevant to senior executive officials might "present[] a different constitutional question than the one we decide today." We therefore express no view on whether the challenged regulations may be applied to senior executive employees.

Id. 56 F.3d at 93 (internal citations omitted).

This Court thus concludes that government-wide relief for plaintiffs and all similarly situated government employees is appropriate. Such a ruling is well-supported by precedent, as courts frequently enjoin the enforcement of regulations ultimately held to be invalid. See, e.g., Harmon v. Thornburgh, 878 F.2d 484, 495 n .21 (D.C.Cir.1989) ("When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated — not that their application to the individual petitioners is proscribed."), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990); Planned Parenthood Fed'n of Amer., Inc. v. Department of Health and Human Resources, 712 F.2d 650 (D.C.Cir.1983) (affirming final injunction prohibiting enforcement of invalidated regulations); Dimension Fin. Corp. v. Board of Governors of the Fed. Reserve Sys., 744 F.2d 1402 (10th Cir.1984) (enjoining Board from enforcing or implementing invalidated regulations), aff'd, 474 U.S. 361, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986); Service Employees Int'l Union v. General Servs. Admin., 830 F.Supp. 5 (D.D.C.1993) (invalidating GSA regulation and enjoining further enforcement of the rule).

Moreover, courts may issue injunctions that benefit non-parties where they are necessary to give the prevailing parties the relief to which they are entitled. See Brown v. Trustees of Boston Univ., 891 F.2d 337 (1st Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990); Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987); Professional Ass'n of College Educators v. El Paso County Community College Dist., 730 F.2d 258, 274 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984); Evans v. Harnett County Bd. of Educ., 684 F.2d 304, 306 (4th Cir. 1982). Here, plaintiff NC WARN has an interest in inviting government employees (besides plaintiffs) to meetings and conferences. Anything other than a government-wide injunction would "[d]eprive NC WARN and the general populace of government employees' novel and valuable perspective." Sanjour, 56 F.3d at 94.

The government further contends that plaintiffs' proposed order improperly involves this Court in formulating standards of ethical conduct by usurping the Office of Government Ethics' ("OGE's") authority to promulgate regulatory amendments in response to the Sanjour decision. The Court disagrees. Plaintiffs' proposed government-wide injunction leaves the OGE free to promulgate new regulations which it believes are the most appropriate response to Sanjour; it does not involve the Court in such decisions. The OGE simply is prohibited from enforcing the current regulations against employees below the senior executive service level of employment.1

Finally, defendants argue that plaintiffs' proposed order is overbroad because it enjoins the enforcement of more regulations

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than necessary to carry out the Sanjour court's mandate. Defendants argue that the Court should not enjoin the enforcement of the GSA regulation found at 41 C.F.R. § 304-1.3(a) [hereinafter "GSA Regulation"] or any provisions of 5 C.F.R. § 2635.807(a) other than subsection (a)(2)(i)(E)(2).2

The Court of Appeals clearly considered the constitutionality of the entire regulatory scheme in Sanjour, including §§ 2636.202(b), 2635.807(a), and the GSA Regulation. Sanjour, 56 F.3d at 90. The key to that court's decision appears to have been that the regulatory scheme — allowing reimbursements for official, sanctioned speeches but not for unofficial ones — posed a "real and substantial threat of ... censorship risks" and "discrimination on the basis of the viewpoint expressed by the employee" without adequate justification. Id. 56 F.3d at 97 (citation omitted). It is the duty of this Court to craft an appropriate remedy eliminating this burden on plaintiffs' First Amendment rights, yet which is "no more burdensome to ... defendants than necessary to provide complete relief." Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 765, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (internal quotation omitted).

An injunction against the enforcement of 5 C.F.R. § 2635.807(a) in its entirety is necessary to provide plaintiffs with complete relief. The Sanjour court never broke § 2635.807(a) into subsections; it evaluated the statute as a whole. Sanjour, 56 F.3d at 90. Defendants argue that when the Court of Appeals observed that the "challenged regulations clearly prevent Sanjour ... from addressing current government policies," id. 56 F.3d at 91 (emphasis added), it intended to single out and limit its analysis to § 2635.807(a)(2)(i)(E)(2), which prohibits compensation, other than from the government, for teaching, speaking, or writing concerning "[a]ny ongoing or announced policy, program, or operation...

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    ...5 C.F.R. § 2635.807(a) was enjoined by decision of the United States District Court for the District of Columbia. Sanjour v. U.S. E.P.A., 7 F.Supp.2d 14 (D.D.C.1998), on remand from Sanjour v. Environmental Protection Agency, 56 F.3d 85 (D.C.Cir.1995). Plaintiff contends that in Sanjour the......
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7 cases
  • Guffey v. Duff, Case No. 18-cv-1271 (CRC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 29, 2020
    ...court's statement that the "decision explicitly contemplates an injunction granting government-wide relief." Sanjour v. EPA, 7 F. Supp. 2d 14, 16 (D.D.C. 1998). Accordingly, the district court concluded "that government-wide relief for plaintiffs and all similarly situated go......
  • Doe v. Rumsfeld, No. CIV.A.03-707(EGS).
    • United States
    • U.S. District Court — District of Columbia
    • October 27, 2004
    ...by precedent, as courts frequently enjoin enforcement of regulations ultimately held to be invalid." Sanjour v. United States EPA, 7 F.Supp.2d 14, 17 (D.D.C.1998). See, e.g., Harmon Page 18 Thornburgh, 878 F.2d 484, 495 n. 21 (D.C.Cir.1989) (court decision invalidating unlawful agency ......
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    • September 23, 2014
    ...plaintiffs cite Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) and Sanjour v. EPA, 7 F.Supp.2d 14, 16 (D.D.C.1998), for the proposition that they have standing to sue on behalf of the public concerning First Amendment violations that chill......
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1 provisions
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