Wolfe v. Barnhart

• Decision Date: 03 May 2006
• Docket Number: No. 04-5194.,04-5194.
• Citation: 446 F.3d 1096
• Parties: Jeffrey Scott WOLFE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration; Amy Comstock, Director, Office of Government Ethics, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

446 F.3d 1096

Jeffrey Scott WOLFE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration; Amy Comstock, Director, Office of Government Ethics, Defendants-Appellees.

No. 04-5194.

United States Court of Appeals, Tenth Circuit.

May 3, 2006.

Jeffrey Scott Wolfe, appearing Pro Se, Broken Arrow, OK, for Plaintiff-Appellant.

Mark B. Stern, Attorney, United States Department of Justice, Washington, D.C (Peter D. Keisler, Assistant Attorney General, Washington, D.C.; David E. O'Meilia, United States Attorney, Tulsa, OK; Alisa B. Klein, Attorney, United States Department of Justice, Washington, D.C., also on the briefs) for Defendants-Appellees.

Before MURPHY, ANDERSON, and O'BRIEN, Circuit Judges.

ANDERSON, Circuit Judge.

Jeffrey Wolfe, an Administrative Law Judge ("ALJ") within the Social Security Administration ("SSA"), was denied permission to collect royalties from the publisher of a textbook he wrote on Social Security disability law. He asked the district court to overturn the agency's decision and to enter a declaratory judgment that the governing regulation, 5 C.F.R. § 2635.807(a), restricted employee speech in violation of the First Amendment. The district court denied his claims, and he appealed. We affirm the court's decision for the reasons set forth below.

BACKGROUND

Wolfe has served as an ALJ for the SSA's Office of Hearings and Appeals ("OHA") since 1995. Prior to that time, he served as a United States Magistrate Judge for the Northern District of Oklahoma. In September 1999, Wolfe submitted a Request for Approval of Outside Activity, Form HHS-520, to OHA Regional Chief Judge JoAnn Anderson, indicating that he had been offered a contract by Delmar Publishing, a subsidiary of West Publishing, to author a text on Social Security law and practice. The contract provided for the payment of royalties. Wolfe indicated on the form that his official duties did not relate in any way to the proposed activity except "insofar as this is an area of law subject of the academic text." R. Vol. I, tab 1 ex. A. Judge Anderson forwarded the Request to Chief ALJ Charles Boyer, who responded to Wolfe in November 1999, indicating that Wolfe was not prohibited from authoring the text but that he "may not . . . accept any compensation for this activity even in the form of royalties." Id. ex. B. Boyer explained that, pursuant to 5 C.F.R. § 2635.807, a section within the Standards of Ethical Conduct for Employees of the Executive Branch,¹

[f]ederal employees are prohibited from receiving compensation from any source other than the Government for teaching, speaking, or writing that relates to official duties. Writing relates to an employee's official duties if the circumstances indicate that the invitation was extended primarily because of an employee's official position rather than the employee's expertise on the particular subject matter, or if the subject of the activity deals in significant part with any ongoing or announced policy, program or operation of the Agency. Because you are an Administrative Law Judge for Social Security and a text on Social Security law and practice deals in significant part on the Agency's policies, programs and operations, you may not accept compensation for this activity.

R. Vol. I, tab 1 ex. B (citations omitted). Wolfe requested that the OHA reconsider its denial of approval for receiving royalties from the publication, but the Chief ALJ confirmed his initial decision.

Wolfe then sought an advisory opinion from the United States Office of Government Ethics ("OGE") "as to the applicability of 5 C.F.R. § 2635.807 to a proposed book on the Social Security disability adjudicatory system." R. Vol. I, tab 1 ex. D, at 1. The OGE agreed with the SSA OHA that the proposed work "will necessarily focus on the policies, programs, and operations of the [SSA]" and that 5 C.F.R. § 2635.807 therefore precluded Wolfe from collecting royalties from the book's publisher. R. Vol. I, tab 1 ex. D, at 1. In support of this conclusion, the OGE reasoned that, because "SSA was created by the Social Security Act for the express purpose of administering the Act, including disability claims," and because OHA handles appeals from adverse SSA determinations, "[t]he disability adjudicatory process . . . inherently involves OHA, and [Wolfe's] proposed writing will deal directly with a highly specific subject matter that OHA is integral to." Id. at 2-3 (footnotes omitted). According to the OGE, the proposed book would be, "in effect, a manual for handling cases in which SSA components, and more specifically OHA, will necessarily be involved." Id. at 3. The OGE further indicated that the book's subject matter was "integral to the job of an SSA ALJ" such as Wolfe, whose "role is defined by the disability adjudicatory process, and is to apply the rules that will be the focus of the book." Id.

In July 2002, Wolfe's book, coauthored with Lisa Proszek and entitled Social Security Disability and the Legal Professional, was published. Also in July 2002, Randolph Gaines, the SSA's Designated Agency Ethics Official, issued a final decision affirming the denial of permission to collect royalties and supporting the OGE's interpretation of 5 C.F.R. § 2635.807. In doing so, Gaines rejected Wolfe's argument that he "w[as] requested to write the book, not as a result of [his] current position as an [ALJ] for the [SSA], but because of [his] unique background and experience" as a magistrate judge, which gave him "an expertise in Social Security disability law and appeals that predate[d][his] appointment as an ALJ." R. Vol. I, tab 1 ex. E, at 1. Gaines indicated that even if this were so, Wolfe was precluded from collecting royalties because the subject matter of the work "deals in significant part with SSA's ongoing policy, programs or operation." Id. at 2.

Wolfe then filed suit in federal district court, naming the SSA Commissioner and OGE Director as defendants and arguing that the SSA's decision denying approval for Wolfe to receive compensation for the publication of his book was based on an incorrect interpretation of 5 C.F.R. § 2635.807, and, in addition, that 5 C.F.R. § 2635.807 violated the First Amendment. Wolfe's complaint requested that the court reverse the SSA's decision and that the court issue a declaratory judgment, pursuant to 28 U.S.C. § 2201, that the regulation, both "as promulgated by OGE and as interpreted and applied by" the SSA and OGE, was unconstitutional. Complaint at 4, R. Vol. I, tab 1. Wolfe and the defendants filed cross-motions for summary judgment, which were referred to a magistrate judge for a report and recommendation. Following a hearing, the magistrate judge recommended that summary judgment be granted in favor of the defendants. Wolfe objected to this recommendation. However, the district court concluded that there was "no reason to depart" from the magistrate judge's conclusions and adopted and affirmed the magistrate judge's report and recommendation. Order, R. Vol. I, tab 64.

Wolfe then filed this appeal of the district court's entry of summary judgment in favor of the defendants, arguing (1) that the SSA's action violates the injunction ordered by the United States District Court for the District of Columbia in Sanjour v. EPA, 7 F.Supp.2d 14 (D.D.C.1998), (2) that the SSA's refusal to allow him to collect royalties was based on a misinterpretation of 5 C.F.R. § 2635.807, and (3) that 5 C.F.R. § 2635.807 violates the First Amendment.

DISCUSSION

Our review of a district court's grant or denial of summary judgment is de novo, applying the same legal standard employed by the district court. Maldonado v. City of Altus, 433 F.3d 1294, 1302 (10th Cir.2006). Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Here, neither party suggests any dispute in regard to the facts. They disagree only in regard to which of them is entitled to a judgment as a matter of law.

In addition, because the SSA is a federal agency, our review of Wolfe's request that we reverse its decision denying him permission to collect royalties from his book's publication is conducted pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Section 706(2) of the APA "provides that agency action must be set aside if the action was `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or if the action failed to meet statutory, procedural, or constitutional requirements." Valley Cmty. Pres. Comm'n v. Mineta, 373 F.3d 1078, 1084 (10th Cir. 2004) (internal quotation omitted) (referring to 5 U.S.C. § 706(2)(A), (B), (C), (D)). "When we review an agency's decision under the [APA's] arbitrary, capricious or abuse of discretion standard, our review is narrow and deferential; we must uphold the agency's action if it has articulated a rational basis for the decision and has considered relevant factors." Slingluff v. Occupational Safety & Health Review Comm'n, 425 F.3d 861, 866 (10th Cir.2005) (citing Mountain Side Mobile Estates P'ship v. Sec'y of HUD, 56 F.3d 1243, 1250 (10th Cir.1995)). "However, these limitations do not apply to questions of law." Id.

Wolfe's arguments, as set forth above, present legal issues. His request that we set aside the SSA's decision as unlawful agency action under the APA rests on the contention that this decision was "contrary to law" under 5 U.S.C. § 706(2)(A)² and "contrary to constitutional right" under 5 U.S.C. § 706(2)(B).

I. EFFECT OF SANJOUR INJUNCTION

Wolfe argues that the SSA's decision implementing 5 C.F.R. § 2635.807(a) violates an injunction issued by the District Court for the District of Columbia in Sanjour v. EPA ("Sanjour II"), 7 F.Supp.2d 14 (D.D.C.1998). However, we agree with the government appellees and the district court that the Sanjour II...