Williams v. I.R.S.

• Decision Date: 20 November 1990
• Docket Number: No. 90-5078,90-5078
• Citation: 919 F.2d 745
• Parties: , 59 USLW 2386, 59 USLW 2464, 6 Indiv.Empl.Rts.Cas. 98 Charles E. WILLIAMS, Appellant, v. INTERNAL REVENUE SERVICE, Appellee,
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 745

919 F.2d 745

287 U.S.App.D.C. 74, 59 USLW 2386, 59

USLW 2464,

6 Indiv.Empl.Rts.Cas. 98

Charles E. WILLIAMS, Appellant, v. INTERNAL REVENUE SERVICE, Appellee,

No. 90-5078.

United States Court of Appeals, District of Columbia Circuit.

Nov. 20, 1990.

Rehearing Denied Dec. 26, 1990.

Charles E. Williams, pro se.

Jay B. Stephens, U.S. Atty., and John D. Bates, R. Craig Lawrence, and Sharon A. Cohen, Asst. U.S. Attys., were on the motion, for appellee.

Before WALD, Chief Judge, EDWARDS and HENDERSON, Circuit Judges.

Opinion for the Court filed Per Curiam.

ON MOTION FOR SUMMARY AFFIRMANCE

PER CURIAM:

This case presents the question of whether the government may, consistent with the first amendment, take disciplinary action against a government attorney who attempts to prosecute a class action on behalf of himself and others, without seeking prior approval under the relevant regulations. We conclude that both the regulations and the sanction withstand constitutional scrutiny.

I

In February 1980, Charles Williams, a senior attorney in the Tax Litigation Division of the Internal Revenue Service ("IRS"), filed a class action in the Superior Court of the District of Columbia on behalf of himself, his wife, and other contributors to the Mt. Jezreel Baptist Church against the Church's board of directors for an accounting of trust funds. See Williams v. Dunlap, No. 80-2562 (D.C. Superior Ct.). Four months later, Williams filed, but did not sign as counsel, a motion to certify the class in Dunlap. The motion to certify the class was denied and the case voluntarily dismissed in June 1981 when it became apparent that the accounting books had been lost or misplaced. Although the complaint in Dunlap included a request for attorneys fees, Williams declined to accept them once they were awarded.

The IRS requires its employees to obtain written permission from the agency before engaging in outside employment or business activities. See Handbook of Employee Responsibilities and Conduct ("Handbook") at 222.5. In November 1982, the agency issued a notice of proposed disciplinary action against Williams for failing to seek agency approval before filing suit in Dunlap. As a result of the charges, Williams was suspended for five days.

Williams challenged the suspension in district court, but the case was dismissed for lack of subject matter jurisdiction. Williams v. IRS, No. 83-0904, slip op. at 3 (D.D.C. Nov. 17, 1983). On appeal, we held that the suspension did not violate Williams's statutory or due process rights. Williams v. IRS, 745 F.2d 702, 704 (D.C.Cir.1984) (per curiam) ("Williams I"). We remanded the case, however, for a determination as to whether Williams had a " 'serious' free association claim." Id. at 705. The district court concluded that he did not, and Williams appealed again.

II

It is well settled that the government may limit the exercise of a citizen's first amendment rights where government regulations are aimed to address legitimate concerns and not designed to control or limit the exercise of first amendment freedoms. See Konigsberg v. State Bar of California, 366 U.S. 36, 50-51, 81 S.Ct. 997, 1006-07, 6 L.Ed.2d 105 (1961) (withholding of bar membership constitutional where applicant refused to answer questions regarding membership in Communist Party thus thwarting investigation into his "qualifications"). In order to withstand constitutional scrutiny in the employment context, the employee's interest "as a citizen" in exercising his first amendment rights must be balanced against the state's interest "in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 (1968); see also Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). Applying the Pickering balancing test here, we must uphold the agency's regulations and the sanction imposed against Williams.

At the outset, Williams has failed to demonstrate the existence of any first amendment right to act as counsel for other individuals while employed by the IRS. See generally Mazaleski v. Treusdell, 562 F.2d 701, 715 (D.C.Cir.1977) (plaintiff has the burden of showing his conduct is constitutionally protected). Nor has the court uncovered any case law which would support such a proposition.

To bolster his claimed first amendment right, Williams cites In re Primus, 436 U.S. 412, 426, 98 S.Ct. 1893, 1901-02, 56 L.Ed.2d 417 (1978), and Bates v. State Bar of Arizona, 433 U.S. 350, 376 n. 32, 97 S.Ct. 2691, 2705 n. 32, 53 L.Ed.2d 810 (1977), for the proposition that "collective activity undertaken to obtain meaningful access to the courts is protected under the First Amendment." We find these opinions inapposite here. In Primus, the Supreme Court addressed the legal activities of the American Civil Liberties Union, a nonprofit organization which "engages in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public." 436 U.S. at 431, 98 S.Ct. at 1904. In Bates, the Court referred in passing to the associational rights of trade unions recognized in previous decisions. Williams has identified no comparable associational activity here that might bring his legal representation within the first amendment's protection.

Even assuming Williams has a right to act as counsel in non-work related matters, the interests of the IRS and the limited restrictions it places on such outside work outweigh any incidental impact on Williams's rights. Courts have consistently recognized that the government has a legitimate interest in promoting efficiency in public service. See, e.g., Reichelderfer v. Ihrie, 59 F.2d 873 (D.C.Cir.), cert. denied, 287 U.S. 631, 53 S.Ct. 82, 77 L.Ed. 547 (1932) (total ban on outside remunerative employment by D.C....