OGE Memo (DAEOGram DO 98-034), Subject: District Court Decision on Remand in Sanjour V. EPA (November 25, 1998)

Article excerpt

November 25, 1998
DO98-034

MEMORANDUM

TO: Designated Agency Ethics Officials

FROM: Stephen D. Potts Director

SUBJECT: District Court Decision on Remand in Sanjour v. Environmental Protection Agency

The United States District Court for the District of Columbia has issued its decision on remand in Sanjour v. Environmental Protection Agency. The decision impacts enforcement of section 2635.807(a) of the Standards of Ethical Conduct, 5 C.F.R. part 2635, and its prohibition on employee acceptance of travel expenses in connection with "teaching, speaking, or writing [that] relates to . . . official duties," under section 2635.807(a)(2)(i). Insofar as this travel expenses prohibition applies to employees "who work below the grade level of senior executive service," the district court declared it unconstitutional and permanently enjoined its enforcement. The decision is reported at 7 F. Supp.2d 14 (D.D.C. 1998).(1)

The Justice Department, with the concurrence of the defendants, the Office of Government Ethics (OGE) and the Environmental Protection Agency (EPA), has decided not to appeal the district court decision. OGE will now undertake to amend section 2635.807(a) to bring it into compliance with the district court ruling. Notice of regulatory changes will be provided to agencies as soon as possible.

We discuss below the history of the Sanjour litigation, the most recent decision in the case, and its significance for enforcement of section 2635.807.

Background

The Sanjour case began in the early 90's when two EPA employees filed suit challenging the regulatory prohibition on employee acceptance of travel expenses from non-Government sources in connection with speech undertaken in a private capacity but related to official agency duties.(2) The district court rejected the plaintiffs' claims that the prohibition violates the First Amendment, 786 F. Supp. 1033 (D.D.C. 1992), as did the court of appeals on its first hearing of the case, 984 F.2d 434 (D.C. Cir. 1993). On May 30, 1995, however, the court of appeals, in a 5-4 en banc decision on rehearing, sustained the employees' First Amendment challenge and held invalid "the no-expenses regulations." 56 F.3d 85, 88 (D.C. Cir. 1995). The court reasoned that, since a regulation of the General Services Administration (GSA), 41 C.F.R. [section] 304-1.3(a), allows travel reimbursements in connection with official speech, whereas section 2635.807(a) prohibits travel reimbursements in connection with unofficial speech, the regulatory scheme poses a risk of censorship based on viewpoint. 56 F.3d at 97. At the same time, however, the court noted that "the balancing of interests relevant to senior executive officials might present a different constitutional question" and, therefore, explicitly reserved judgment on the constitutionality of the regulations as applied to "senior executive employees." Id. at 93.

Subsequently the Solicitor General decided not to petition for further review in the Supreme Court and the case was remanded to the district court for entry of a final order. The parties were unable to agree, however, upon the relief to which the plaintiffs were entitled as a result of the court of appeals decision. Among numerous disagreements were questions regarding the impact of the court of appeals decision on the GSA regulation and on the various types of speech deemed related to official duties. The plaintiff employees argued that the appellate court's ruling required an injunction against enforcement of the GSA regulation and the section 2635.807(a) prohibition on acceptance of travel expenses in connection with all types of speech related to duties under 5 C.F.R. [section] 2635.807(a)(2)(i). The Government defendants took the position that the court should not enjoin enforcement of the GSA regulation and that the prohibition on acceptance of travel expenses in section 2635.807(a) was only in issue as applied to teaching, speaking, or writing that "relates to . …