Sanjour v. USEPA

• Decision Date: 19 February 1992
• Docket Number: Civ. A. No. 91-2750 SSH.
• Citation: 786 F. Supp. 1033
• Parties: William SANJOUR, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

786 F. Supp. 1033

William SANJOUR, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Civ. A. No. 91-2750 SSH.

United States District Court, District of Columbia.

February 19, 1992.

Stephen M. Kohn, David K. Colapinto, Washington, D.C., for plaintiffs.

Mary E. Goetten, Jeffrey S. Gutman, Dept. of Justice, Civ. Div., Federal Programs Branch, Washington, D.C., for defendants.

OPINION

STANLEY S. HARRIS, District Judge.

Before the Court are defendants' motion to dismiss, plaintiffs' motion for summary judgment, and the oppositions and replies thereto.¹ Because the Court considers evidence besides the pleadings, the Court treats the defendants' motion as a motion for summary judgment. See Fed.R.Civ.P. 12(b). For the reasons stated below, the Court denies the plaintiffs' motion for summary judgment and grants the defendants' motion for summary judgment.

Background

Plaintiff William Sanjour filed his original complaint on October 28, 1991, seeking injunctive and declaratory relief against the Environmental Protection Agency (EPA) and several of its officials.² Plaintiff sought a temporary restraining order and/or a preliminary injunction to enjoin defendants from enforcing "all restrictions placed on his reimbursement for reasonable travel expenses as prohibited on page 3 of EPA Ethics Advisory 91-1." (Plaintiff's Complaint, at 9.) He also sought a declaration that certain "regulations, policies, memoranda and directives" relating to reimbursement of travel expenses are void as not supported by existing law and regulation, including the Ethics Reform Act of 1989, and violate the First Amendment. (Plaintiff's Complaint, at 9.) Following a hearing on October 30, 1991, and by Order dated October 31, 1991, the Court denied plaintiff Sanjour's motion for a temporary restraining order. See Order (Oct. 31, 1991).

Following the denial of the temporary restraining order, defendants filed a motion to dismiss. Plaintiff then filed a motion to amend his complaint to add both new plaintiffs and new defendants, which was granted. See Order (Jan. 21, 1991). However, the Court also granted the defendants' motion to dismiss certain individual defendants named in the amended complaint. See id. The Court then denied plaintiffs' subsequent motion for a preliminary injunction, noting it would treat the motion as one for a permanent injunction. See Order (Jan. 22, 1992). Therefore, now before the Court are defendants' motion for summary judgment and plaintiffs' motion for summary judgment based on the amended complaint.³

Facts

The Court takes the following facts from plaintiffs' amended complaint. Plaintiffs William Sanjour and Hugh B. Kaufman are employees of the EPA and have been since 1972. Plaintiff North Carolina Waste Awareness and Reduction Network (NC WARN) is a non-profit environmental coalition of over 50 North Carolina environmental and community organizations. Defendants are EPA, EPA Administrator William Reilly, the Office of Government Ethics (OGE), and Stephen D. Potts, the Director of the OGE.

Both Sanjour and Kaufman describe themselves as "well-known `whistle-blowers'" at the EPA. (Amended Complaint, at 5, 6.) Sanjour and Kaufman regularly travel "throughout the United States in a non-official capacity, and meet with local environmental organizations and/or municipal authorities to discuss matters within the EPA's scope of responsibility and matters related with EPA policies and programs." (Amended Complaint, at 5, 6.) These speeches are often critical of EPA policies. Organizations which invite Sanjour and Kaufman to speak regularly reimburse them for their actual travel expenses.

In or about October of 1991, the EPA "instructed Mr. Kaufman not to accept travel reimbursement in the future for speeches in which EPA related matters were the focus of the speech." (Amended Complaint, at 6.) EPA officials also gave Sanjour an April 8, 1991, Memorandum (April 8th Memorandum) which stated that EPA policy prohibited employees from accepting non-official travel expenses for speeches or public appearances relating to EPA responsibilities, policies, and programs. Sanjour and Kaufman allege that without reimbursement, they are unable to engage in non-official speeches outside the Washington, D.C., area.

Sanjour and Kaufman further allege that they have been forced to cancel several invitations to speak as a result of the prohibition on the acceptance of travel expenses. Plaintiff NC WARN invited both Kaufman and Sanjour to speak at a public meeting in Jackson, N.C., on January 23, 1992. Both declined, citing the inability to accept travel expenses as preventing them from accepting. (Amended Complaint, at 10.)

Plaintiffs contend that the restriction on the acceptance of travel expenses violates the First Amendment, the Ethics Reform Act (ERA), is selectively enforced, and was promulgated in violation of the Administrative Procedure Act (APA). They seek an injunction against the OGE's interim regulation set forth at 56 Fed.Reg. 1724 (to be codified at 5 C.F.R. § 2636.202(b)), page three of the EPA Ethics Advisory 91-1, and paragraph three of the April 8th Memorandum.

Discussion

The Challenged Regulations

The challenged OGE interim regulation is one part of an interim rule promulgated by the OGE after the passage of the ERA. Section 2636.202, with the sub-heading "Relationship to other laws and regulations," states that the honorarium and other prohibitions of the ERA are "in addition to any restriction on appearances, speaking or writing ... to which an employee is subject under applicable standards of conduct." Limitations on Outside Employment and Prohibition of Honoraria; Confidential Reporting of Payment to Charities in Lieu of Honoraria, 56 Fed.Reg. 1721, 1724 (1991) (to be codified at 5 C.F.R. § 2636.202(b)). The regulation further states:

An employee should accept compensation, including travel expenses ... only after determining that it is not prohibited by the following: ... (b) 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. Id. at 1724-25.

The OGE interim rule, encompassing the above regulation, was circulated to deputy ethics officials within the EPA as an attachment to EPA Ethics Advisory 91-1 (Ethics Advisory), also at issue here. See EPA Ethics Advisory 91-1, Defendants' Motion To Dismiss, Ex. 3. The Ethics Advisory merely "highlights some key points of the new OGE rule." Id. at 1. The challenged portion of the Ethics Advisory notes that "employees may not accept non-official travel expenses when the subject of an appearance or speech focuses specifically on the employee's official duties or on EPA's responsibilities, policies and programs." Id. at 3.⁴

The final document in question is the April 8th Memorandum circulated to EPA officials as a cover memorandum to the Ethics Advisory. The challenged paragraph of the memorandum asks the officials to note the above-quoted language of the Ethics Advisory relating to the ban on the acceptance of travel expenses. See April 8th Memorandum, at Defendants' Motion To Dismiss, Ex. 4.

First Amendment Claim

Plaintiffs claim that the rationale of the Supreme Court decision invalidating the "Son of Sam" law requires this Court to conclude that the ethics regulations unconstitutionally abridge their rights under the First Amendment. See Simon & Schuster, Inc. v. New York State Crime Victims Bd., ___ U.S. ___, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). Plaintiffs reason that the ethics regulation, like the Son of Sam law, creates a content-based financial burden on speech which must be justified by "a compelling state interest and be narrowly drawn to achieve that end." See id. at ___, 112 S.Ct. at 509 (citing Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231, 107 S.Ct. 1722, 1729, 95 L.Ed.2d 209 (1987)). While this Court believes that the challenged regulations would survive the Simon & Schuster test, the applicable test here is the one originally enunciated in Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

In Pickering the Supreme Court established a balancing test between the interests of the public employee in speaking on issues of public concern and the interests of the government as employer in regulating its employees. See Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. The Court noted that the interests the government has in regulating its employees "differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id.

The first prong of the Pickering analysis requires the Court to consider whether the regulated speech involves matters of public concern. See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708 (1983). Plaintiffs Sanjour and Kaufman seek to speak to groups, such as plaintiff NC WARN, regarding policies and practices of the EPA. Both are self-described critics of the EPA and lecture in many states. Plaintiff NC WARN asserts that it desires Sanjour and Kaufman to speak because "of their well known status of `EPA whistleblowers,' i.e. people willing to speak the truth about EPA policies and how they will effect (sic) the citizens of Northampton County, should the state approve the hazardous waste incinerator in the county." (First Affidavit of Billie L. Elmore, Executive Director of NC WARN, at ¶ 6, at 2.) Given the affidavits of plaintiffs, the Court has little trouble concluding that the regulated speech touches on matters of public concern. See, e.g., Rankin v. McPherson, 483 U.S. 378, 387-88, 107 S.Ct. 2891, 2898-99, 97 L.Ed.2d 315, reh'g denied, 483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 819 (1987) (finding remark involving the attempted assassination of...