William Sanjour v. Environmental Protection Agency

SANJOUR, al., Appellants, et William PROTECTION

ENVIRONMENTAL al., Appellees.

AGENCY, et

No. 92-5123. Appeals,

United States Court Circuit.

District Columbia 9, 1994. In Banc Feb.

Argued May

Decided Niblack, DC, Washington,

David filed C. the brief for amicus curiae Environmental Organizations. and Civic Kneisel, Craig Atty. Asst. R. Gen. Ames, Gen., Deputy Atty. Mort P. Office Gen., AL, Atty. Montgomery, for the Ala., appeared pro hae State of the brief Ala. vice for amicus curiae State of MIKVA,* WALD, Judge, Chief Before: SILBERMAN, BUCKLEY, EDWARDS,** WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, and Circuit Judges.

Dissenting opinion Judge filed Circuit SILBERMAN, with whom SENTELLE HENDERSON, and Circuit WILLIAMS join. Judges, WALD, Judge: Circuit Sanjour Hugh Kaufman —two William employees of the Environmental Protection (“EPA”) co Agency the environmental —and North Carolina Waste Awareness alition (“NC WARN”) appeal Reduction Network court’s dismissal of their First the district challenge regulations prohib Amendment receiving employees from iting EPA expense private sources writing engage speaking or for unofficial subject concerning the matter of the ments work, permitting such com employees’ while officially speech on pensation for authorized EPA, Sanjour v. issues. See the same (D.D.C.1992). 1033, panel A F.Supp. ruling, the district court’s this court affirmed Kohn, DC, ar- Stephen Washington, M. (D.C.Cir. EPA, Sanjour 984 F.2d 434 see appel- and filed the briefs gued the cause 1993), subsequently full court vacated but the lants. rehearing and set the case for that decision EPA, Sanjour 997 F.2d 1584 Mollin, Counsel, Dept, in banc. See Alfred Senior U.S. (D.C.Cir.1993). rehearing, DC, we find Justice, argued cause On Washington, to demonstrate government has failed him briefs were appellees. With on the employees and their that the interests of Hunger, Atty. Gen. and John Frank W. Asst. Justice, suppressed Counsel, Dept, potential audiences Hoyle, Sp. U.S. C. expression’s neces Jr., outweighed by that Holder, Atty., “are Michael J. Eric H. McIntosh, operation of the Director, sary impact on the actual Singer, Scott R. Asst. v. National Craig government.” United States R. Atty., Dept, of Justice and Union, U.S. -, DC, Treasury Employees Lawrence, Atty., Washington, Asst. U.S. -, L.Ed.2d 964 appearances. entered ** * Judge prior to the Judge Chief Edwards became Judge of the Court at Mikva was a member Chief argued but did not opinion. the case was in banc the time issuance participate disposition. in its (1995) {“NTEU”) (internal quotations responsibilities, policies programs and ci- omitted). employing agency. of his therefore reverse the We tation no-expenses regu- (codified court and hold the (1991) district Fed.Reg. 1724-25 2636.202(b) (1994)). lations invalid. 5 C.F.R. Several later, employ- EPA months distributed to its advisory interpreted ees an letter which it I.BACKGROUND regulation narrowly prohibit the OGE ex- Background pense reimbursement for travel involv- Regulatory A. ing appearances; “non-official” regula- first of Prior to when the expenses could still receive promulgated, employ- tions at issue here was speaking sources for about their “official accept trav- ees of the federal executive could responsibilities, policies duties or EPA’s [] expense except pro- from a el reimbursement programs” required long prior and so as “the source, ie., person group or hibited approvals ... for official travel” were first with, sought regulat- or was had or business Advisory EPA obtained. Ethics 91-1 at 3 by, agency. employee’s ed Exec. Order 2, 1991), 80, (Apr. reprinted in J.A. at 82. 11,222 (1965); see also Office of Gov’t No. 1992, August In after the district court’s 1, 1984), (May x84 5 at 3-4 Ethics Mem. prior argument decision this case but to (“J.A.”) 41, Appendix reprinted in at Joint appellate panel, before the the OGE elabo- payments All other than for actual 43-44. new, policy rated its travel reimbursement necessary expenses prohibit- travel were comprehensive more “standards of conduct” 501(b) §in by ed the honoraria ban of the governing employee compensation. federal (codified Ethics in Government Act 1978 at regulations prohibit The new on their face (1988 V)).1 Supp. § app. 5 U.S.C. & “receiv[ing] compen- federal 1991, January the Office Government any sation from source other than the Gov- (“OGE”) charged establishing with Ethics teaching, speaking writing ernment for or the “overall direction” executive branch that relates to the official duties.” interest, policy relating conflicts of to id. (1992) (codified 35,006, 35,063 Fed.Reg. promulgated regulation containing § 2635.807(a) (1994)).3 § 5 C.F.R. 402— important an on additional restriction travel must, however, provisions The OGE ethics expense reimbursement: together regulations be read with of the Gen- employee prohibited by An (“GSA”), stan- eral pro- Services Administration receiving compensa- dards of conduct from mulgated authority § under the of 302 of the tion, expenses, including speak- travel Ethics Reform Act of Pub.L. No. 101- (codified subject ing writing or on matter that focus- 103 Stat. 1745-47 as 1353).4 specifically § es on his official duties or on amended at 31 U.S.C. These latter duties, Supreme performed part employee's 1. The Court has since found that this of the or provision rights violates the First Amendment subject involving ongoing that address matter an employees, executive branch except and invalidated it policy agency any of the or matter to which the applied to senior federal executives. employee assigned. scope Also within the - U.S. at -, See regulations are activities undertaken in re- (1995). L.Ed.2d 964 sponse "primari- to an invitation extended either ly employee's] position because [the official "Compensation” 2. "[m]eals is defined to exclude expertise,” "by person rather than his or who or attendance other incidents of ... furnished as substantially by has interests that be affected part teaching speak- at which the or of the event performance nonperformance employ- or ing place," quite sweeping. takes but is otherwise ee’s official duties." C.F.R. consideration, "any It embraces form of remu- 2635.807(a)(2)(i)(A-E). § income," neration, including "transportation, or meals, kind, provided lodgings whether ticket, GSA, by payment provides purchase 4.Section 302 of a in advance or that the in consulta- expense after the has been tion with OGE 2635.807(a)(2)(iii). § C.F.R. incurred." 5 prescribe by regulation shall the conditions regulations agency length under which an in the executive branch The new define at some ac- may accept payment, employee's ... tivities that official or authorize an em- "related Included, example, appearances ployee agency accept payment duties." are of such County, “accept pay- hampton North Carolina. permit agency Since (or pre- source autho- in effect a non-Federal ethics at the time ment from payment on employee receiving to receive such compensation rize an vented the two from behalf) respect to attendance of an necessary they with expenses, its for their meeting or similar function employee at a speaking were forced to turn down the en- employee has been authorized which the gagement. subsequently NC can- WARN capacity on in an official behalf attend the event. celled 304-1.3(a) agency.” 41 C.F.R. employing (1994). They authority in vest broad Background C. Procedural when an officials to determine 1991, Sanjour In October filed a seven- participate in a “authorized” to should be complaint against in district count court subject particular meeting, to the limitation EPA, Administrator, and other individual authorizing agency official determine defendants, which was to add later amended approval “under the circum- granting plaintiffs Kaufman and NC WARN as person with [not] stances would cause and its director as defendants. OGE knowledge question facts ... of all the I, III, IV, Counts and V of the amended agency programs operations.” integrity of complaint alleged violations of the First taint, 306-1.3, §§ Absent such a Id. at 1.5. II Amendment. Counts and VII advanced may accept employee an “authorized” statutory Finally, causes of action. Count VI excess and accommodation pled a claim of “selective enforcement and per rates for applicable diem otherwise prosecution plaintiffs in viola- selective §§ Id. at 304- government-funded travel. tion of the laws and constitution of the Unit- 1.3(d), 1.6, current and 1.7.5 The OGE GSA ed States.” EPA’s regulations thus harmonize with the summary judg- regulation origi- On defendants’ motion for interpretation of the OGE ment, I- challenged by appellants; regulato- the district court dismissed Counts nally plain- court not consider ry employees allows to V and VII. The did scheme as a whole challenges count-by- reimburse- tiffs’ First Amendment receive travel and accommodation count, pleading to engage- but rather construed their ment for “official”—or “authorized” — balancing ments, single attack under the agency does mount a but not for activities Pickering “originally test enunciated approve. not Educ., Board Background B. Factual (1968).” EPA, Sanjour v. 20 L.Ed.2d 811 (D.D.C.1992). F.Supp. 1036 Sanjour Hugh Kaufman and are William say plaintiffs’ chal- did not whether court who, 1970s, the late EPA since construed, ap- lenge, was “facial” or “as so throughout traveled the United States have challenged plied,” but concluded that “the capacity giving speeches that in an unofficial attack” regulation withstands constitutional policies. They EPA con- are often critical of narrowly to meet a “it is tailored because on their own time and duct these activities objective is not legitimate government and depend expense reimbursement on travel free- designed to limit First Amendment defray costs of sources at 1037. doms.” Id. speaking engagements. their summary judgment on 1991, Sanjour The court denied and Kaufman re- late prosecution claim—Count plaintiffs’ selective ceived an invitation from NC WARN disputed ground it “raise[d] capacities unofficial at a VI—on speak their 1041 n. 15. of material fact.” Id. at concerning plan questions a commer- hearing to build precise facts at specify the The court did not waste incinerator North- cial hazardous Indeed, behalf, a non-Fed- the GSA allow agency's sources from non-Federal subsistence, travel, provide payments expenses for an eral source to such and related for well, spouse's pres- employee’s spouse if respect ... with to attendance meeting relating the interest of the any meeting at the is “in function ence or similar 1.3(b). § agency." employee. 41 C.F.R. the official duties of 304— issue, regulations; claim selective enforce ed in but since a the earlier was not depends change.7 on the either intended to effect substantive To- ment 2636.202(b) 2635.807(b) similarly day, §§ “sing[ling] party] out from others both re- [a together pursuing an individual out of main effect and with the GSA situated” motivation],” “improper[ regulations perpetuate v. Ho ] see Juluke the exact same dis- del, (D.C.Cir.1987), originally challenged appellants 811 F.2d fur tinction 2636.202(b) § inquiry government’s actual under the EPA Ad- ther into Ethics similarly visory employees motivation and its receive travel and treatment situ presumably required. ated individuals was accommodation reimbursement for “official” speaking, writing, or “authorized” or teach- plaintiffs’ appeal On of the district court’s ing engagements, but activities disposition of their First Amendment chal pre-approve. does not We therefore Sanj lenge, panel of this court affirmed. constitutionality consider the of this scheme (D.C.Cir.1993). our v. EPA 984 F.2d 434 2635.202(b) implemented by §§ both full court vacated that decision and 2635.807(a) (collectively regulations”). “the Sanjour in banc. v. EPA granted rehearing (D.C.Cir.1993).6 997 F.2d 1584 Applicable B. The Standard: Picker- ing/NTEU II. Disoussion automatically Individuals do not re Regulations A. The at Issue linquish rights their under the First Amend question, As a threshold we must decide accepting government employment. See, precisely which e.g., Keyishian Regents, are under review. v. Board 589, 605-06, regulations, including 675, 684-85, The new OGE 5 C.F.R. U.S. 2635.807(a), (1967). time, promulgated were not until af- L.Ed.2d 629 At the same how suit, ever, appellants ter Supreme initiated this and indeed recognized Court has entry not until after the district court’s of “Congress impose job- restraints on the Therefore, summary judgment. the district speech public employees related of appellants’ review plainly court’s of constitutional applied would be unconstitutional if challenge NTEU, regula- focused on the earlier OGE public large.” U.S. at 2636.202(b) -, § Therefore, tion —5 EPA C.F.R. 115 at 1012. S.Ct. to deter —and Advisory. Ethics validity speech mine the of a restraint on the government employees, of a court must “ar reviewing prospec When denial of rive at a balance between the interests of the injunction in tive relief the form of an citizen, [employee], commenting as a in upon however, declaratory judgment, “[w]e must public matters of concern and the interest of judgment [district review the of the [c]ourt State, employer, as an in promoting the stands, light in of law as it now it [the] efficiency public performs of the services judgment stood when below was entered.” through employees.” Pickering v. Board Church, Baptist v. Central 404 Diffenderfer Education, 563, 568, 391 U.S. 88 S.Ct. 412, 414, 574, 575, U.S. 30 S.Ct. L.Ed.2d (1968). 1731, 1734-35, 20 L.Ed.2d (1972). course, ease, present Of any such consequential distinction is not Pickering Embedded test explain supra since—as we qualify protec 3-6—OGE’s the condition that to for its 2635.807(a) promulgation tion, § only government employee speech elaborat in must ed the policy public travel reimbursement enunciat- volve “matters of concern.” See Con- 9, argued February 6. This case argument was in banc 1994. 7. Government counsel at oral ex- By per 2536.202(b) curiam order of the in banc court—see plained "simply 5 C.F.R. kind EPA, 28, (D.C.Cir. Sanjour Apr. No. 92-5123 warning,” of a a "statement that the standards of 1994) (order abeyance) disposi to hold in something you pay —our conduct are have to attention postponed pending tion of the case was then 2635.807(a) to.” Section "laid then out” Supreme decision of the Court in United States v. applicable "standards conduct.” - Union, Treasury Employees National -, -, 1003, 1014, 115 S.Ct. 130 L.Ed.2d (1995), 22, February which issued on 1995. 138, 146, government’s greater Myers, 461 U.S. 103 S.Ct. burden is with nick v. (1983). 1689-90, 1684, respect statutory The to this 75 L.Ed.2d 708 restriction on ex- pression respect at is- than with government concedes that the an isolated prerequisite. disciplinary action. satisfies this We The must sue here necessary potential show that this concession a one. The interests of both think clearly prevent Sanj- group present challenged regulations audiences and a vast our, employees in range pres- and other executive branch future a broad Kaufman addressing expression outweighed current ent and future employees from are perhaps paradigmatic expression’s “necessary impact on policies, operation” government. the actual concern.” of the “matter[] Pickering, 391 U.S. at 88 S.Ct. at Pickering balancing applies That the test clear; eminently thus in this case is 115 S.Ct. at 1014. however, application, manner of its is some- This, Pickering/NTEU then —the test —is Pickering and of its what less so. most apply the standard we in this ease. disciplinary Supreme progeny involved Court Appellants’ Challenge C. Nature against employees; individual actions taken weighed impact the Court turning application, Before to that howev- giving to the action on that rise er, preliminary requires another matter at- public responsibilities. of her performance appellants’ tention —the nature of First McPherson, 378, 107 Rankin v. 483 U.S. Cf. challenge regulations. Amendment (1987); 97 L.Ed.2d 315 Connick panel majority signifi- ascribed critical Myers, to its cance view that a “facial” attack on (1983). contrast, Sanjour, L.Ed.2d 708 us, that an is before “as- regulations proscribing involves a broad cate- applied” challenge awaits the attention of the gory speech by large potential number of Sanjour, district court below. 984 F.2d See speakers. sup- at 437. We think this assertion is not record, ported any event Fortunately, Supreme Court’s recent largely distinction is irrelevant the context guidance decision NTEU offers useful Pickering/NTEU analysis.8 apply Pickering in such a how to case. First, . challenge by the notion that the -district NTEU involved two unions 501(b) only challenge § on a “facial” and several career civil servants to court ruled while Act, allowing appellants proceed of the Ethics in Government 5 U.S.C. to on an “as- 501(b) (1988), theory app. prevented applied” “offi- is incorrect. While neither which applied” employee[s]” govern- or of the federal the word “facial” nor the term “as eer[s] anywhere opin “receiv[ing] any appears honorarium.” in the district court’s ment repre- Sanjour, F.Supp. at 1034-41— The Court observed that the statute ion—see 786 clearly dispose purported that court to of the sented a “wholesale deterrent broad expression by entirety appellants’ category of a massive number of First Amendment speakers,” “[gave] challenge. broadly that “the chal potential of and therefore It held lenged regulation ... not violate the rise to far more serious concerns than could does NTEU, any single supervisory plaintiffs’ rights,” id. at decision.” First Amendment -, 1038, I of at 115 at 1014. It and dismissed Counts and III-V U.S. S.Ct. Complaint, only alleging First concluded that counts showing professes surprise day dissent that “in this Court in facial overbreadth cases—"of [challenged] regulation pleading any could never be of notice it makes difference” to us that appellants’ applied that it claim is "in a term in a valid manner or is so broad how characterized sense,” constitutionally protected speech suggests of art that our difference of inhibit the parties." Sanjour, opinion panel majority’s See 984 F.2d at 441. with the characteriza- of third diverges only analysis that of the a matter of Our therefore tion is "semantics.” Dissent majority part panel majority panel because we 105. Far from it. Because the in substantial appellants' appellants' challenge disagree with its characterization of believed that ly was technical- challenge, imposed challenge, improper of appellants and so with its allocation a "facial" it on developed "heavy appellants. “heavy Supreme that burden” burden". — 92 expression are range present of and future cannot but con- violations.9 We

Amendment expression’s necessary outweighed by that appellants’ First whole clude that operation impact on the actual of the challenge character- Amendment —however at-, 115 appeal. ment.” S.Ct. us on now before ized—is (internal quotations and citation omit- at 1014 however, important, we doubt More ted). this same test —which re- Because “facial”/“as-apphed” dis centrality of the beyond go court to the facts quires the Pickering/NTEU context. In tinction presumably applies particular case before it — deed, did not cate NTEU itself the Court challenges, “as-applied” to both “facial” and challenge as either “fa employees’ gorize the largely the two is the distinction between was not an over applied.” This cial” or “as elided.10 test enunciated sight; fact is that the constitutionality regard, present case resembles In this determining the NTEU —— Fane, U.S. -, v. 113 restricting govern regulation a statute or Edenfield (1993). 1792, 543 Fane chal requires the review 123 L.Ed.2d employee speech lenged Accountancy rule a Florida Board ing whether the “interests court to consider direct, prohibiting personal solicitation of group a vast potential audiences and of both First Amend- employees in a broad business clients. The relevant present and future only regulation summary judgment Count at issue is [in VI] on 9.- The court denied VI, alleged applied enforcement is sufficient to survive which "selective unconstitutional as Count EPA, prosecution plaintiffs Sanjour in vio and selective a motion to dismiss.” v. Civ. No. 9, 1993). (D.D.C. of the United the laws and constitution It lation of 91-2750 June would have not, confusing, given "Selective enforcement" States." course, been more accurate—and less action; cause of rath applied" a First Amendment of "as as a term of art in First use observed, er, aptly the Second Circuit has say plaintiffs’ claim Amendment law—to murky equal protection law.” application” lies in "a corner government's that the "selective 606, Saunders, (2d F.2d 608 Cir. v. 621 regulation LeClair not was unconstitutional could be 1980). prevail of selective en claim To summary judgment. dismissed on circuit, plaintiff must show in this forcement similarly "singled others that he was out from “as-applied" 10. The usual distinction between prosecution improperly was [his] or that situated challenges is that the former ask and "facial” Hodel, F.2d Juluke v. motivated.” reviewing the chal- court declare (D.C.Cir.1987); see also Memorandum lenged regulation statute unconstitutional on Support Renewed Motion to Dis of Defendants' case; latter, particular the facts of the Complaint Amended miss Count 6 of Plaintiffs’ contrast, request go beyond the that the court EPA, (D.D.C. F.Supp. Sanjour whether, given all of facts before it consider 1992). inquiry in such cases is thus The critical potential applications, challenged provision's ap legislation "as is constitutional whether legislation curtailing a risk of creates such facts, particular plied” set of but rather to a protected constitutionally unac- conduct as be constitutionally government may whether ceptable City Council Los "on its face.” See "apply” some but the same rule to individuals Vincent, Angeles Taxpayers similarly situated. not to others 12-16, 2124-25, 796-98 & nn. course, may prevail plaintiff on a "selec Of 12-16, (1983). L.Ed.2d 772 The Picker- nn. showing tive claim enforcement” ing/NTEU requirement reviewing test’s selectively prosecuting government's motive in spectrum speech sup- court consider the of "prevent paralyze ... [the] exer him was constitutionality pressed determining in the of rights.” See United [his] cise of constitutional challenged legislation the blurs this distinction. 1270, (D.C.Cir. Mangieri, F.2d 1273 States v. 694 case, course, only concerned We are in this of cases, 1982). may involve deter In some this “as-applied” challenges in which with "facial” or attempting mining plaintiff fact whether was in plaintiffs primarily seek to vindicate their own rights, constitutionally protected in to exercise rights. We are concerned first amendment not rights. inquiiy, cluding This First Amendment exception standing to traditional re- with the however, question to the of remains subordinate doctrine, quirements motivation; known as "overbreadth" government’s it does not trans the permits parties whose own conduct which protection equal enforce “selective form clearly unprotected rights the third to assert of "as-ap claim into a First Amendment ment" parties not before the court. For seminal exam- challenge. plied” challenges brought by parties ples seek- panel progenitor of facial the We note that the was not ing rights, Stromberg own see to vindicate their court’s order de- of this confusion. The district 359, 532, California, 283 U.S. 51 S.Ct. 75 L.Ed. nying to dismiss defendants' renewed motion (1931); Griffin, during pen- 303 U.S. staying Lovell VI that claim Count (1938). dency "plaintiffs’ 82 L.Ed. 949 appeal claim S.Ct. of this stated that test, developed weight in our evaluation to be assigned Central Hudson Gas of competing Electric v. Public Service Comm’n interests. Corp. & York, New (1980), required the L.Ed.2d Court to Employees 1. Interests and the challenged regulation determine whether the Public in advanced state interests a di- substantial already have We noted the nature of the way, and if so to consider rect material employees’ challenge; in interest this their speech on whether the burden was reason- receiving interest lies in reimbursement for ably to the state proportioned interests expenses necessary “teaching, to make essentially was served. Thus the Court speaking or writing” appearances on matters upon the state’s in called to balance interest official “relate[] [their] duties.” category expression against suppressing a 2635.807(a). government 5See C.F.R. speech, in that citizenry’s interest speech concedes that at issue touches on Sanjour. in same balance we must strike concern,” satisfying “matters thus has challenge, Fane’s the Court since ob- protection requirement the threshold un- served, applied challenge was an “as Pickering. der solicitation”; category broad of commercial suggest that the Court “did not Fane could contends, however, challenge regulation on commercial because the speech do “ban” only applied to himself or his own duties,” concerning employees’ “official but solicitation,” Edge acts of United States v. only speak remove on an incentive to these —Co., -, -, Broadcasting U.S. 113 matters, regulations impose a “mod- 2696, 2706, (1993), 125 L.Ed.2d 345 but S.Ct. appellants erate” burden and others on simi- weighed rather the interests of individuals larly argument situated. This was also made position against generally Fane’s NTEU, rejected Supreme where the Court suppressing ment’s interest relevant it: category speech. prohibition on [The ban’s] honoraria com- pensation unquestionably imposes signifi- ap- The most accurate characterization of expressive activity.... cant burden pellants’ challenge therefore be—follow- compensate Publishers authors because ing applied challenge Fane —that is an “as compensation significant provides a incen- category [non-official to broad By expression. denying tive toward more Nevertheless, speech].” analyzing while this incentive, respondents honoraria requires category broad that we curtail their expres- ban induces them to beyond particular appel- look facts of they working if sion wish to continue ease, go lants’ we cannot so far to include government. every possible application challenged Supreme scheme. Court As the noted NTEU, 115 S.Ct. at 1014 balancing interests relevant to (citations omitted). might “present[] senior officials executive course, Of burden described question different constitutional than the one greater present Court is far NTEU -, today.” we decide in his Judge case. As wrote dissent Sentelle express We therefore no view panel: from the the NTEU decision of regulations may challenged on whether the applied employees. senior executive imposes significant- be ban [T]he [honoraria]

ly appellees’ of less a burden on First [regula- the rights Amendment than did Pickering/NTEU Applying D. upheld [by panel] Sanjour. in tions] the regulations], begin \Sanjour We our substantive discussion of the Unlike ban of the regulations by briefly enunciating employees allows to recover all costs the inter- they necessarily expressive in Pickering/NTEU ests on of the incur activi- either side ty. only prevents The balance. then examine several attributes ban We profiting outside of the that we think inform from their activities. must 94 Treasury Employees appellate panel, appellees urged primarily Union v.

National (D.C.Cir. States, regulations represent attempt 990 F.2d United to 1993) original). By denying in (emphasis “protect against appearance impro- ability employees the to recover government priety employees.” in the actions of their necessary expenses, regula See, travel even e.g., Sanjour, F.Supp. at 1037. The greater impediment represent a to tions here nub of this claim was that when a publicize than attempts their to their views employee accepts expense reim- did the honoraria ban struck down private party bursement from NTEU, in which did not affect such Court may, general public, appear to the beholden expenses at all.11 private prone provide to the interest and to regulatory illicit in “favors” return. NTEU, weigh must Under we employees’ side of the balance not Indeed, arrangements certainly some such employees” “present and future interests specter partiality could evoke the on the range “present in a of inhibited and broad part government employees. danger expression,” but also the future interests relation, in these transactions bears no how “potential audiences” —such as their NC ever, to the distinction between “official” and receiving speech suppressed. WARN —in employee speech “unofficial” line drawn —the 115 S.Ct. at 1014. by challenged regulatory scheme —but manifestly great; This interest is as numer rather derives from the source’s in observed, ous courts and commentators have terest in the future actions of the government employees position are in a agency. reimbursing par Provided that the public unique insights offer the into the ty in has an interest the actions of the reim workings government generally and their employee, appearance impro bursed See, specialization particular. areas of priety regardless is the agency’s same of the (7th e.g., Pieczynski Duffy, 875 F.2d 1331 approval disapproval or of the “reimburse Cir.1989) (“[P]ublic employees have valuable government ment.” Because the cannot sin insights operation and information about the gle speech out for restriction on the basis of government convey.);” Develop bearing a criterion “no relation to the [] Employment, ments in the Law —Public particular asserted,” City ... interest[ ] (1984) (“[P]ublic em Habv.L.Rev. Network, Discovery Cincinnati ployees, by expertise virtue of their and ex -, -, 1505, 1514, 123 L.Ed.2d perience, among the are often citizens who (1993), the EPA’s abandonment of this ... opinions [ are best informed their ] justification before banc court was especially public.”). are thus valuable judicious. Depriving general popu NC WARN and the government employees’ lace of novel and government argues now that “[t]he perspective require valuable would therefore governmental relevant interest is the threat justifica carefully a serious and considered integrity government occasioned tion. by employees using their office (em- private gain.” Appellees’ at 24 Brief 2. The Government’s Interest phasis original). The current core evil to

During litigation, the course of this government employ- be averted thus lies in EPA “selling” has advanced two interests ees their labor twice—once to the challenged regulatory once, employer, claims scheme ad- as speech vances. Before the district court employment, and the form of about their reason,, reject gov- Supplemental Appellees 11. For this same we also audience." Brief for (emphasis original). again, ernment's alternative formulation of the "moder- Once we think argument, point ate prevent burden" which claims that "while the crucial is that the peri- speakers covering the standards of well have the conduct from even the costs—whether travel, curtailing expenses equipment odic effect of there is no reason in the form of travel why they materially speech, given expressive Making should curtail fees—of their activities. here, expensive, impose the numerous alternative means of communica- more has to (such teleconferencing) videotape greater making tion burden on than it less remunerative, require employee journey that do not an to to his as in NTEU.

95 tions, taking govern reim- we have trouble willing provide travel private parties avowed interest to heart. Discov government ar- ment’s The in return. bursement Cf. Network, at -, ery 113 at U.S. S.Ct. no reason to when there is gues that even (holding a ban on commercial but not attempting to is private donor suspect “impermissible noncommercial employee, newsracks reimbursed curry favor with the admittedly responding city’s means of a acceptance of benefits from employee’s safety itself, legitimate and esthetics of interest” inappropriate in is private source B.J.F., streets); its Florida Star public to lose faith in the cause 524, 540, L.Ed.2d 109 S.Ct. government of em- single-minded dedication (1989) (professing “serious doubts about G. public interest. ployees to the Robert Cf. Regulation is, fact, government] serving whether [the Vaughn, Confliot-of-InteRest significant ... in [it] interests which (1979) Federal Exeoutive Branch regulate (“[Pjractices where it had failed to employ- voke[d]” government enrich activity giving part substantial rise to compensation appropriate beyond their ees harm); alleged Daily Smith v. Mail Pub government solely their status as because of Co., 97, 104-05, lishing confi- public faith and employees undermine (1979) (strik 2667, 2671-72, dence.”). 61 L.Ed.2d 399 government contends that the The ing prohibiting a statute dissemination down designed prevent this sort regulations are because, juvenile of defendants’ names inter compensation.” of “dual alia, regulate the law did not electronic me accomplish dia and therefore could Regulations 3. Underinelusiveness of purpose). stated features of the Several government responds charge to this of government’s sub doubt on the cast serious by arguing that the offi- underinelusiveness compen potential for “dual mission the critical distinction serves operation of menaces the “actual sation” so cial/unofficial purpose assuring private monies will government,” undertakings accepted only for that “fur- be regula as to render long public good.” So as the ther[] employee significant restriction tions’ this condition is satis- ensures that acceptable response. Foremost is speech an fied, urges, no dif- there is govern “fit” between the the obvious lack of of an em- ference between “reimbursement sweep interest and the purported ment’s expenses appropriated ployee’s [ ] patent incongrui There is a its restrictions. “authorized funds” and reimbursement from ty two that features both an between the Appel- appropriations.” augmentations of com and an “overinclusive” “underinelusive” at 31-32. lees’ Brief ponent. justify cannot argument But this line of regulations’ underinelusiveness regulations. drawn troubling As we have the distinction

their most feature. aspects an official’s 88-89, Presumably, nearly all challenged explained, supra see “further[ing] the job could described as permits government em- be regulatory scheme very gov- public good.” Yet the nub for luxuri- ployees to receive reimbursement concern is compensation” “dual long as the ernment’s travel and accommodations so ous parties private inappropriate But that it is agency approves their activities. doing compensate government employees for employee accruing to an from week benefit agency ap- jobs. cannot see how regaling on their We relaxing in four-star hotels and employee reimbursement addresses expense proval feasts at the five-course compensation” at all— the core evil of “dual way first obtain- party no diminished private bene- employee receives the same approval. Because the ing agency agency “approves” or not. regu- fit whether the attempted not even ment has thus hand, difference between On the other category of behavior —reim- late broad expenses appear- of an “official” “reimbursement bursement funds” and reimburse- appropriated giving precisely [ ] rise to the harm ances — augmentations ap- adopt regula- ment from “authorized supposedly motivated it to only applicable appears quite plain; to us S.Ct. at 1798. The standard “does propriations” permit supplant precise possibility that not us to the inter- situation raises the the latter by put [government] forward the with improperly “sell- ests government suppositions.” other Id. govern- to both the ing” government labor party, in the private since former ment and a Moreover, government even if the only “buy- government itself is the case the conjured by had asserted the interest er.” dissent —and we can find no evidence that it regulatory government’s did—the scheme at issue here agree with the Nor do we impermissible would still be an means to stamping generous perqui- that contention regulations it. For the broad approval any achieve vest will alleviate sites with official authority agency prevent an em using that officials be public perception ployee accepting from private gain. government offices for their any appearance, whether or not it would Indeed, officially sanctioned benefits from potentially involve “interests ... adverse to appear would to create a private sources Therefore, agency.” regulato while the appearance government employ- that greater ry might scheme not be “underinclusive” systematically translates into social ad- against freshly- when measured the dissent’s perks vantage than would the unsanetioned interest, “governmental” minted it would still minimum, bureaucrats. At a individual Supreme disapproval run afoul of the Court’s however, we believe that both the regulations vesting essentially unbridled gain actually public derived from office and discretion in a decisionmaker to public perception equally thereof are speech viewpoint restrict on the basis of the great speech occasioning gain when expressed. officially approved as when it is not. dissent, apparently The while acknowl- Restricting Anti-government Speech edging regulations are underinclu- perhaps It-is fundamen .most against the “dual com- sive when measured principle AmendmenUjurispru- tal of First pensation” justification actually by advanced government may regulate dence that the government, attempts to evade our con- speech ground expresses that by reformulating government’s clusion dissenting viewpoint. City R.A.V. v. Cf. proposes regulations It that interest. —Paul, U.S. -, St. designed regulate “personal gain were not (1992) (invalidating L.Ed.2d 305 a hate- public generally, from office” but speech ground ordinance on the that it sin personal gain arising “accommodating gled suppressed concededly proscrib out and third-party potentially interests external and “fighting able words” on the basis of the agency.” adverse to the Dissent at 6. The viewpoint expressed). Although govern ” “tight dissent therefore finds a ‘fit’ between ostensibly ment asserts an interest unrelated purported and their aim. employees’ speech— to the content of the Dissent at 101-102. preventing private gain office—in question, practice Pickering/NTEU certainly how almost re ever, “gov subcategory is not strict a whether some conceivable of such on the might constitutionally viewpoint expressed. regu ernmental” interest be basis of the regulations; Supreme permit approval only advanced lations official explained Court Fane —under the similar is “within the mission of the speech balancing agency.” Appellees’ commercial test —we must at 16. It there Brief inquiry appears employees may pri limit our “interests State fore receive —Fane, itself asserts.” 113 vate reimbursement for travel costs neces- 12. The dissent suggests "propri- deny, that because the at 8. It does not however—nor could it— ety employee may accept lavish accommodations must be consid- that an “authorized" reimbursement,” accepting ered and accommodation reimbursement in excess of "[a]ny danger improper agen- applicable per [ ] benefit to an otherwise diem rates for 304-1.3(d), cy employee §§ [from "authorized” reimburse- ment-funded travel. 41 C.F.R. 1.6, (1994). apparent ... ments] is more than real.” Dissent 1.7 only by by appellants, id. at at their views toe- S.Ct. sary to disseminate agency Pickering line. and that in the context of balanc- ing the justifies ing potential this an additional attempt specter to exorcise this In its employees’ thumb on the side our scales. discrimination, government viewpoint that an much of the fact makes 5. Overinclusiveness might not might or receive government’s Given the in speech, depending asserted precisely the same preventing government employees terest gets agency approval; only on whether he using public pri their office to concludes that obtain government “[b]ecause identical, gain, regulations nearly vate are as trou speeches are two they turn blingly to reimbursement does not overinclusive as are underinclu entitlement upon something Clearly, government’s else.” upon viewpoint, but sive. interest logical superficially is a restricting speech against Id. at 33. There must be balanced analy- reasoning, closer quality that but on employees public to the interests of the and the think that the conclusion fol- potentially sis we do not category speech in the entire ,U - Certainly gov- premise. lows from suppressed. See U.S. NTE disap- approve could choose to or ernment government at 1014. If the has a more prove precisely speech the same respect substantial interest with —the however, regula- point, is that the important subcategory speech, of the restricted then its tory essentially unbridled dis- scheme vests readily outweigh interest will not the burden agency to make the determina- cretion imposed larger category speech on the viewpoint expressed tion on the basis subject regulation. performing In employee. balance, therefore, Pickering the courts must challenged or consider whether statute being saving grace of this Far from regulation is tailored to address the harm government sug- regulatory scheme —as the allegedly pro government that the aims to regula- gests discretion that the broad —the Racism, Against tect. v. Rock Ward Cf. in the reinforces our belief tions vest 781, 799, 2746, 2758, U.S. 109 S.Ct. they impermissible. that are Outside the (1989) (noting, L.Ed.2d 661 outside the Pick context, Pickering Supreme Court has context, ering government may that the expressed disapproval of similar discre- substantially more than nec “burden tionary provisions enable legitimate essary government’s to further the speech. City Lakewood ment to control interests”). Co., Publishing v. Plain Dealer 2138, 2147, 108 S.Ct. 100 L.Ed.2d Indeed, requirement appears close to this (1988), the Court wrote: Supreme Court’s decision the heart policy permitting communication law or [A] NTEU. The Court cautioned there way not for in a certain for some but limited its government should at least have specter raises the of content and others any im- attempt prevent “appearance danger viewpoint censorship. This is at its accepting propriety” arising when the determination of who zenith engagements to those honoraria for outside may not left to the speak and who involving employ- activities the officials’ government offi- unbridled discretion of a might though “[o]ne it also noted that ment — uniformly cial.... have often and [W]e activities, expressive reasonably argue that policies impose or held that such statutes they occupy position because favored press, censorship on the or firmament, exempt” should be constitutional hence are unconstitutional.... NTEU, such a ban. See from even So, too, -, at 1017. regulatory chal- think that the scheme We overinclusive, in a are albeit lenged “pose[s] a real and substantial here here ticket way.13 doubt that a bus censorship identified different We [ ] threat of the risks” - suggest gov- expression appears ter of his -, 13. The dissent —as only way regula- require 115 S.Ct. at 1018—is the failure to a nexus between ernment’s governing employee speech be over- employee's job subject could and the mat- tions Pickering lunch en route could the balance. The Court wrote and a box to Baltimore using public office possibly be construed they equally “gain,” yet would be regula- the Government defends a [w]hen challenged as offensive to the past tion on as a means to redress jet to Lake Tahoe. a lobster and a Lear harms, prevent anticipated harms suggest that the Picker-

Although do not we simply posit must do more than the exis- a “least restrictive means” ing test contains sought tence the disease to be extraordinary that the component, we believe cured.... It must demonstrate that the challenged regulations places a reach of the merely recited harms are real[ and] justificatory on the heavy burden conjectural.... another, way, put great quanti- ment —or — by regulatory ty NTEU, at -, speech affected 115 U.S. S.Ct. 1017 heavily omitted). weighs on side (quotations scheme and citation The Court employees. distinguished also its earlier decision Civil Carriers,

Service Comm’n Letter 413 U.S. (1973), 37 L.Ed.2d 796 S.Ct. on Regu- Justification of Insufficient ground Congress designed that had latory Scheme Hatch Act to “combat the demonstrated ill Finally, government’s failure to dem- government employees’ partisan po effects challenged regulatory that onstrate — NTEU, activities,” at -, litical U.S. genuine scheme addresses harms also con- (emphasis supplied); 115 S.Ct. at 1015 but in weigh our reluctance to its inter- tributes to NTEU, government no “cite[d] had evi heavily Pickering est in the balance. Prece- dence of misconduct related to honoraria in Supreme Court and this dents of both the employees” rank and the vast file of federal support relevance of this factor to court by challenged statutory provi affected Pickering analysis. our governmental An sion. Id. identical over — U.S. -, Fane, case; sight similarly colors our review this Edenfield 1792, 123 (1993), L.Ed.2d 543 the Court S.Ct. any EPA nor neither the the OGE has made required government demonstrate effort to demonstrate that the severe mea actual harm before its interest be adopted sures at issue here were to address justify speech deemed to restriction genuinely experienced harms. challenged such here. Fane con government In Pickering review of actions regulation speech, cerned the of commercial against individual this court has apply courts Hudson where the Central already required government that the dem- test, closely balancing which resembles the justify suppression onstrate actual harms to apply today. supra at 92- standard we See speech. explained in American Postal We govern 93. The Fane Court wrote that the Workers Union v. United States Postal Ser- justifying [of restriction] ment’s “burden (D.C.Cir.1987) vice, 830 F.2d conjec by speculation mere is not satisfied (“APWU’), government that because the ture; body governmental seeking rather “justifying” bears the affirmative burden of speech ... sustain a restriction on must stifling employee expression, actions the em- the harms it recites are demonstrate ployee prevail Pickering must balanc- real and that its restriction will fact allevi ing “[g]iven any the absence of demonstrated degree.” to material ate them a (emphasis supplied). harm” think that We -, at 1800. pronouncement applies greater this with still APWU, “gov- The Court’s recent decision force here than in because the government’s justification] greater” [of NTEU verifies that the failure ernment’s burden is suppression “[regulatory] to show that- its. the context of a broad re- expression” genuine addresses harms must inform striction on than in an action 103-104, duties, ("That inclusive. See Dissent at nected to the official save the lacked, here.”). which We can see no for that the NTEU honoraria ban i.e. a basis requirement regulated speech supposition. be con- statutory employee. goal fictional to which against an individual the terms rationally are not related.” Id. at 154. 115 S.Ct. at 1014.

Similarly, in Pickering First Amendment analysis, regulation whether survives the III. Conclusion balance “between the interests of the [em- employee speech pro Government ployee], as a citizen” on the one hand and Amendment, and can tected the First promotion efficiency of “the infringed be when the demon agency] performs through [the services strates that the burden on such other, employees,” Pickering on the v. Board necessary impact “outweighed on the [its] Education, 563, 568, operation government.” actual See id. 1731, 1734-35, (1968), may 20 L.Ed.2d 811 (internal omitted). quotations and citation depend expression on how the Court’s regulations challenged throttle a here purpose regulation behind the or divides great speech curbing deal of the name of groups problems by agen- the addressed the government employees’ improper enrichment cy. striking regulations down the before public Upon office. re their careful us, majority rejects the as both underinelu- however, view, do not think that the we sive and overinelusive the as di- government has carried its burden to demon goals protecting against rected to the of an in strate that the advance that appearance impropriety and the threat to justifying significant terest in a manner the integrity by government their created em- imposed rights. on First Amendment burden ployees’ public private gain. use of office for therefore reverse the decision of the We suggest may I that a different reaction be court, pro district and remand the case for triggered by phrasing prob- different ceedings opinion. consistent with this by agencies lems addressed their issu- regulations. ance of the Reversed and remanded. employee

Ask traveling first: “Should an SENTELLE, Judge, dissenting, speech to Circuit deliver an official on behalf of an SILBERMAN, WILLIAMS, agency expenses?” have to bear his own I with whom is, “No, HENDERSON, join: suggest ready Judges, agency answer Circuit should him.” reimburse disagreement Much arises from semantics. asked, question agency If “If is next an greatly How one reacts to an issue is influ- sending employee an to travel to a remote Indeed, by phrases one enced how the issue. speech location to deliver an official benefi- regards how one the resolution of an issue of agency private entity cial to both the and to a public policy may part by inbe determined audience, represented employee’s in is it perceives legisla- whether one the framer of agency irrational for the to benefit the legislative regulation responding tion or as by accepting entity pay- the private fisc writer, problem one or a series. One ad- ment for some or all of the ex- dressing legislative-objective questions in the penses?” ready Again, suggest I answer law, equal protection context has noted is, “No, perfectly agency rational for an legislative purpose that the division of into acting taxpayers for the mutual benefit single, simplified goals, sepa- each considered private entity accept rately, provide apparent support could for a entity.” private from the misleading legislation conclusion that the question question: employee is overinelusive or Next a federal underinelusive “Should to, time, step separately legis- to each taken when the who wishes on his own and for his reasons, might perfectly ap- speak lation evidence a rational own to a proach legislature’s pur- group overall and deliver unofficial not on “[t]he Note, subjects pose_” Nagel, Legisla- agency, F. but about Robert behalf his Purpose Rationality Equal appearance tive valuable because Protec- which make his (1972). tion, agency, 82 Yale L.J. Other- of his relation to the be reimbursed put, ignore by expenses?” Again, I “[C]ourts wise sometimes for his is, import question to that “No.” clear a statute’s terms to formulate think the answer conceding be even that the restriction of question: “Should reim Next gov- “significant imposes himself reason of his bursement able to enrich burden ways expressive activity,” which could divide United States Nation ernment service (“NTEU’), entity al taxpayer-supported Treasury Employees his Union loyalty to — U.S. -, -, 1003, 1014, 130 Again, ready 115 S.Ct. to which he answers?” (1995), is, L.Ed.2d these burdens be “No.” answer outweighed government by legitimate inter ability to Finally: “Is the travel free to the Pickering, ests. See 88 S.Ct. choosing places of en- of one’s own form at 1734-35. be, My answer would “Yes.” richment?” government’s On the side of the scale rests viewed, I think commonsense Thus “undeniably powerful” interest of the regu- analysis goals addressed preventing ap- the actual or they is that lations before us are not parent government position misuse rational, proper. perfectly but Given at-, power. goals, understanding I then submit Although generally agree at 1016. I thus Pickering balance establishes majority with as to the nature of the placed limited burden on the striking, disagree I balance we are rights involved is constitu- weight relative in Pickering on each side Certainly persons might reasonable tional. terms. issues, proper phrasing the of the as differ on ability on the the result. But to differ from B. The Interest and Government’s the Tai- agency imply propriety an not does of loring Regulation setting agency’s court aside that reasoned already for the decisions. I submit reasons In advancing regulation, 5 the OGE C.F.R. regulations represent 2635.807(a) (1994), a rea- § stated that and the regula- GSA below, tions, 304-1.3(a) for the judgment, and reasons I (1994), § soned 41 C.F.R. they suggest represent legally that agencies legitimate sound facially served notes, one. majority “ap- interest. As pellees urged primarily regu- that [have] attempt lations represent ‘protect an LEGAL ANALYSIS against impropriety appearance A. ” The Framework employees.’ Maj. actions of op. their at 94 declares, EPA, majority rightly (quoting Pickering Sanjour As the F.Supp. v. (D.D.C.1992)). provides majority Board Education the frame As the further notes, determining validity work proceeds proposi- of this this claim from the regulation public employee speech. tion that government employee when “a ac- Pickering, cepts applying expense we must “arrive at a from a [employ private the interest party employee may, gen- balance between to the citizen, ee], commenting upon public, in appear as a matters eral beholden to the private public provide concern and interest of the interest prone regulato- and illicit State, employer, promoting ry Maj. op. as an the effi ‘favors’in return.” at 94. With- ciency performs aspersions services it out casting ap- on the individual employees.” pellees us, through Pickering, impossible 391 U.S. it is before Undeniably, appearance at at 1734-35. this might reality. 88 S.Ct. blend into is, majority employ government employees, is correct that That upon some receiving generally, bringing payments private ees and those this action interests specifically, commenting might consciously unconsciously have an interest shape or workings they ways wherein their official conduct in beneficial to employed, they are and concerns address those interests. It is traditional learning “pub least sometimes rise status of man can serve “[n]o two mas- concern,” one, Pickering lic terms. See Con ters: either he will hate the and love other; one, Myers, nick v. hold to the or else he will and 1684, 1689-90, (1983). Also, despise (King 75 L.Ed.2d 708 6:24 the other.” Matthew Version). paid lation on its When face confines the affected James expressive nexus, having conduct two to that specifically for his such a for- “masters,” loyalty similarly his divided. bidding employees “reeeiv[ing] compen- nongovernmental sation” from sources Protecting against this division and the teaching, speaking, “for writing that re- governmental appearance of the same is lates to the duties.” 5 recognized legitimate as the Su official interest 2635.807(a) (1994) (emphasis C.F.R. add- preme Court NTEU. See ed). -, Indeed, 115 S.Ct. at 1018. the NTEU recognized that the courts have an Court then, regulations, legitimate serve a congres “obligation to defer to considered governmental purpose upheld and should be judgments ap sional about matters such appellees outweigh unless the interests of the pearances impropriety.” Id. Given governmental served, interest or insuffi- ability Congress delega to make limited tailoring cient causes them to violate the legislative appropriate tion of its decisions to by being invalidly First Amendment overin- regulatory agencies, Chevron U.S.A. Inc. clusive or purported underinclusive to serve Inc., Council, Natural Resources Defense government. interests of the 837, 843-44, 104 2778, 2781-83, (1984), I would assume the 81 L.Ed.2d 694 C. Underinclusive? applies regulatory same deference to cases of majority brands the GSA, agencies, acting such as with OGE underinclusive because of the distinction realm, designated their and as well (for appearances drawn between “official” agencies employing ethics offices of such as may accepted) which reimbursement be acting supervise employees. EPA their (for appearances “unofficial” which it deference, regula or without that With not).1 I would submit that this distinction test, pass tions before us will their first must for be drawn the to exist at is, legitimate governmental the service of majority challenge all. Even the not does interest, something unless in the NTEU ability government the of the itself to reim- analysis regula renders that interest or the employees burse its for their official travel. illegitimate. of the tion’s service interest any agency, especial- It is difficult to see how Nothing does. ly one with educational the mission of remedy fashioning its for the unconsti Agency, the Environmental Protection could tutionality of the statute in the Su power. function without that Given its char- implied regulation preme Court that of remu ter, reality necessary and the travel ex- employee speech up neration for could be penses, dispute impossible propo- it is to the provided proper held there was a “nexus government may sition that the reimburse its speaker’s between the official duties and ei expenses for the of travel under- subject speaker’s matter of ther the ex taken. pression identity payor.” or the of the case, appellant majority, 115 S.Ct. at 1019. In that For and the the diffi- remedy by culty regulatory the Court struck down the crafted arises with the decision ad- 304-1.3(a) by § government this court not because the vanced GSA 41 C.F.R. employees’ speech applied by permitting limit EPA in not its where such a reim- exists, congres by private the travel nexus but rather because the bursement entities of expenses employees making ap- sional ban had not limited the affect “official” having pearances appearances. ed to that such a not “unofficial” nexus and because but gone beyond redefining majority differing our this treatment we had role deems at-, underinclusiveness, Congress. for Id. in the view the nexus constitute ease, employee regu- at 1018-19. In this that “reimbursement for ‘official’ majority suggests regulations, they prohibit only the 1. The here face of the speaker communicating prevent would with a from receipt "compensation, including ex- travel potential only by forbidding audience not 2636.202(b) penses....” (emphasis § 5 C.F.R. recovery expenses, equip- of travel but also of added). Maj. Op. at ment costs. See 94 n. 11. From precisely traveling rise to case he is to be about the appearances giv[es] business master, only of his the Environmental Pro- supposedly [the harm motivated Maj. Agency. tection regulations.” op. adopt ment] only if governmental is accurate This Any danger improper further benefit to is, objective harm prevent- to be —that agency doing employee an while the business by majority. defined ed—is the one the lavish —illustrated viewed, however, accurately that harm More majority’s accommodations described employee profits an from the exists where Maj. opinion, Op. apparent see is more position governmental his use of his to serve real, given than the actual nature of the personal ends, by third-party accommodating regulation reimbursement allowable. GSA’s potentially adverse to interests external specifies agency may “accept pay- danger agency. The same of harm does (or ment from a non-Federal source autho- employee making an where the exist employee rized to receive such benefit its on regula- as defined in appearance “official” behalf),” 304-1.3(a), only § 41 C.F.R. where tions. agency reimbursement for the in- travel survives conflict of regulations specify The OGE that: analysis § terest dictated 41 C.F.R. 304- prohibited by An the stan- 1.5(a). safeguard regulation requires That receiving compensa- dards of conduct agency an official to authorized conduct such tion, expenses, including speak- analysis, including but not limited to an subject writing ing or on matter that focus- of six enumerated examination factors de- specifically es on his official duties or on signed support a decision the reim- policies responsibilities, programs bursement employing agency. of his accepted if shall not be the authorized 2636.202(b) (1994). § regula- This C.F.R. that acceptance official determines tion, face, purpose pre- serves the under circumstances would cause a profit posi- venting personal an official person knowledge with reasonable of all Advisory tion. EPA Ethics we consid- particular the facts relevant to a case to panel opinion, EPA ered in the Ethics Advi- question integrity agency programs 2, 1991), sory (April narrowly at 3 con- 91-1 operations. regulation prohibit strued that travel ex- 304-1.5(a). major 41 C.F.R. A factor in pense “not official” monetary that determination is “[t]he value appearances, exempting while “official” trav- by and of travel benefits character offered “required prior approvals” el where had been § the non-Federal source.” 41 C.F.R. 304- recently the more en- obtained. Under 1.5(a)(6). Thus, propriety of lavish ac- guidance of the hanced General Services Ad- by commodations must be considered regulation, agency permit- an ministration is agency accepting in reimbursement. lit- So payment ted accept “to a non-Federal erally agency is in control of the decision (or employee source authorize to receive (other accept payment to reimbursement that behalf) payment respect such on its with to kind) payment than in employee meeting attendance of the a or by shall be check or similar instrument employee function which the has similar been payable agency. made Any to the such in an capacity authorized to attend official payment by employee received on be- employing agency.” behalf of the 41 C.F.R. agency half of the for travel 304-1.3(a) (1994). § his/her and/or accompanying spouse that of accept- is Thus, danger employee will agency ed on and behalf of the is to be profit receiving by travel he in addi- desires practicable as soon as submitted for credit salary by tion governmental policed to his is applicable agency appropriation to agency in the case official travel. The expenses. such not, instance, employee traveling in that is 304-1.6(a) added). (emphasis § 41 C.F.R. profiting by making for or his own ends a trip short, objective by agency’s himself to In chosen meet with associ- when the Rather, choosing. “big picture” ates in as part of his own viewed of a instead of majority’s tightly through the refracted as- both educational private and other sector sumption regulation that a can serve Congress expressly interests. has provided objective, single it is not underinclusive. It that: tight objective. “fit”

has fact with its Government, The Federal acting through Granted, result in different agencies the coordinated efforts of its and expenses employ- treatment for incurred with leadership of the Environmental opposed unofficial travel as to ee-chosen Agency, Protection should work with local agency-sanctioned official But it travel. ... educational organi- and environmental accepted Equal jurispru- Protection Clause zations, noncommercial educational broad- require dence that “the Constitution does not entities, casting private and sector inter- things in fact ... which are different to be develop programs ests to provide to in- though they were treated law emphasis creased and financial resources same,” Texas, 141, 147, Tigner v. purpose for the attracting students into 879, 882, (1940), 84 L.Ed. 1124 the same engineering environmental assisting and logic apply in must the case of an underinclu- pursuing programs them in to com- analysis expressive activity siveness re- plete the advanced technical education re- require striction. The law does not quired provide to problem solving effective things, only include all like capabilities complex for environmental is- things.2 sues. provision agency receiving for an re- 5501(a)(9) (1988). § 20 U.S.C. Fundamental imbursement the cost of its efficiency tenets of propri- especially fitting official travel is in the case ety always legitimate dictate that it is operates EPA. EPA of the under a government objective attempt prevent statutory contemplating charter “that each reality appearance of conflicts of person enjoy should a healthful environment by government employees interest while at person and that each responsibility has a protecting public the same time fisc. preservation contribute to the and enhance- special overseeing Given the EPA’s role in ment environment.” U.S.C. joint responsibilities 4331(c) (1988) added). (emphasis pur- protecting sectors in the environ- goal, imple- suit of this broad EPA acts to ment, especially appropriate would seem policy by derived the first instance that, carrying out of that official busi- Quality, the Council on Environmental ness, government might tap private re- expressly by council authorized statute to sources reimbursement of its costs “accept any private, reimbursements providing expense nonprofit organization any depart- or from employees. its Since the does not ment, agency, instrumentality of the Fed- obligation bear the same as to the unofficial State, government, any eral or local employees, goals travel of its are not met ment, expenses for reasonable travel in- obligation reimbursement of an it never curred an officer or place. incurred the first Council connection with his attendance at conference, seminar, any meeting or similar D. Overinclusiveness? conducted for the benefit of the Council.” § U.S.C. 4346a. majority suggests regula- The also that the contexts, Congress In other has reminded tions are invalid reasons of overinclusive- duty operate jointly why. majority the EPA of its I with ness. am not certain The EPA, majority my analysis gov- Sanjour (quoting F.Supp. 2. The describes of the minted,” "freshly Maj. Op. (D.D.C.1992)). ernment interest as goal protect- That I read that "conjured by and as the dissent.” To the challenged regulations ed the taken in con- contrary, looking I am at the same junction government's regu- with the other travel justification beginning offered from the and not- my govern- description lations renders of the by majority: "Appellees urged pri- ed marily [have] goals freshly no more minted than the ment’s regulations represent attempt that the majority's characterization of the same 'protect against appearance impropriety " mental interest. employees.' Maj. Op. the actions of their at 94 Censorship” E. “Threat of its section the overinclusiveness premises proposition that inarguable opinion on the challenge to appellant’s At the heart of restricting interest government’s “the majority’s adoption regulations and the these against the inter speech must be balanced agency, in challenge that the of that fear public in the and the ests of it distinguishing appearances which between sup speech potentially category entire and those from sanction as “official” will — NTEU, (citing Maj. Op. at 97 pressed.” blessing, may be it will withhold that which 1014). end, at -, To that U.S. viewpoint-based censorship de- exercising a concludes, and I do not dis majority exercising signed prevent must consider wheth “the courts agree, that public right speak out on matters their regulation is or challenged statute er the concern, thereby depriving the govern that the the harm to address tailored viewpoints. right to hear these informed (citing, protect.” Id. allegedly aims to Against Rock Rac comparison, for Ward Granted, be that ism, 781, 799, 109 S.Ct. discriminatory regulations in a enforcing the (1989)). 105 L.Ed.2d 661 censorship. If that is amounting to manner case, open courts are to an then the explain how majority then does not agency’s applica- challenge to the individual transgress prin regulations these the instant Indeed, such tion of the statute to them. that “the extraor to assert ciples, other than district court. challenge pends now challenged dinary of the reach of semantic This leads to another instance justificatory on the heavy burden places a majority disagreement and me. between Maj. sup In Op. at 97. government_” majority spends pages of its several unexplained proposi port of this otherwise my opinion analysis proposition that on the Granted, tion, majority NTEU. cites judge’s opinion panel and the district statutory hono- opinion struck down erroneously the trial court described 1989, 5 Reform Act of raria of the Ethics ban challenge in district court an remaining (1988 V), Supp. as over- seq. U.S.C. 101 et styling challenge. Perhaps our applied” “as above, However, it did as I noted inclusive. phrase strictly compliance with the is not expressly stated that opinion in an so sense. “as-applied challenge” in a term of art remedy to that overinclu- prior court’s this Nonetheless, that under the the fact remains arguably overinclu- siveness had been “itself or “selec- of “selective enforcement” rubric at -, NTEU, 115 S.Ct. at sive.” complaint of the prosecution,” count VI tive arguable overinclu- identifying being applied alleges regulations are Supreme remedy, the Court of our siveness “in violation of the plaintiff/appellants to the injunction against en pointed out that our States.” laws and Constitution of United “prohibits enforce the statute forcement of underpinnings of count VI are The factual even when an obvious ment of the statute incorporation the same factual employee’s job by precise nexus exists between First allegations underpin the facial subject or her ex matter of his either the Thus, challenge. or paying whether person Amendment pression or the interest “as-ap- styled an pending not the count is for it.” challenge, it chal- designed plied” First Amendment agencies have Here the at 1018. constitutionality lenges the where such “an regulations applying plaintiff/appellants on the applied between the obvious nexus exists targets selection of them as subject his her basis that job ... matter of Amend- of their First majority not ex constitutes a violation The has expression_” why day in this regulations rights. I do not know these plained it is about what any pleading it makes difference of notice still overinclusive when that leaves them styled “a selec- majority that the count is I Nor do see requirement nexus met. of prosecution regula tive enforcement selective uphold the I therefore would flaw. “as-applied” rather than an plaintiffs” challenged overinclusive against tions of whether these challenge. question ness. being or have been unconsti- regulations are plaintiffs

tutionally applied to these is cur- MEDIA; ALLIANCE FOR COMMUNITY rently trial court. before the Alliance for Communications Democra- cy; People Way, for the American Peti- challenge applica suggest I that the to the tioners, regulations, styled, tion of the however is the v. place proper to determine whether censor ship of their First Amendment activities is FEDERAL COMMUNICATIONS occurring. Supreme As the Court noted COMMISSION; United States NTEU, “although the occasional case re America, Respondents. quires challenge us to entertain facial Respon- New York Citizens Committee for party's right order to vindicate not to be Media; York; sible Media Access New statute, by an unconstitutional nei bound we Brooklyn Group; Producers’ David provide ther want nor need to relief to non- Channon; National Cable Television As- remedy fully parties when a narrower will sociation, Inc., Intervenors. at -, protect litigants.” (citations omitted). at 1018 DENVER AREA EDUCATIONAL TELE- CONSORTIUM,

COMMUNICATIONS INC.; Union, American Civil Liberties CONCLUSION Petitioners, Congress, agencies as the well which v. Congress delegates legislative authority, FEDERAL COMMUNICATIONS “may impose job-related restraints on the COMMISSION; United States speech public employees that would be America, Respondents. plainly applied pub if unconstitutional large.” lic at Respon- New York Citizens Committee for 1012; NRDC, S.Ct. at Chevron v. See Media; York; sible Media Access New 843-44, 104 U.S. at S.Ct. at 2781-82. In this Brooklyn Group; Producers’ David case, imposed EPA and GSA have a lawful Channon; National Cable Television As- restriction on the work-related sociation, Inc., Intervenors. issue, employees. EPA MEDIA; properly light legitimate viewed in ALLIANCE FOR COMMUNITY when governmental objectives furthering effi Alliance for Communications Democra- cy; People Way, ciency avoiding appearances impro for the American Peti- tioners, priety, are neither overinelusive nor underin- They simply EPA clusive. mandate that an employee serve but one master while at the FEDERAL COMMUNICATIONS protecting same time fisc. The COMMISSION; United States

majority’s attempt to confine this case within America, Respondents. purview the narrow of NTEU should fail for expressed by Supreme the reasons Court Respon- New York Citizens Committee therein. That which the NTEU honoraria Media; York; sible Media Access New i.e., lacked, requirement regu ban Brooklyn Group; David Producers’ lated be connected to the Channon; National Cable Television As- duties, official saves the here. sociation, Inc., Intervenors.

AMERICAN CIVIL LIBERTIES Petitioner, UNION, FEDERAL COMMUNICATIONS COMMISSION; United States America, Respondents.

Case Details

Case Name: William Sanjour v. Environmental Protection Agency

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 30, 1995

Citation: 56 F.3d 85

Docket Number: 92-5123

Court Abbreviation: D.C. Cir.