The opinion of the court was delivered by: HARRIS
This matter is before the Court pursuant to the Court of Appeals' decision in Sanjour v. Environmental Protection Agency, 312 U.S. App. D.C. 121, 56 F.3d 85 (D.C. Cir. 1995) ("Sanjour "). Currently pending are plaintiffs' motion for a final order, defendants' opposition thereto and motion for a final order, plaintiffs' reply, defendants' reply, and plaintiffs' surreply. Also pending are plaintiffs' motion for leave to file an application for attorney's fees and costs, defendants' opposition thereto, and plaintiffs' reply. Upon consideration of the entire record, the Court shall enter a separate Judgment in accordance with the reasoning set forth below.
The history of this litigation is discussed at length in this Court's prior Opinion and in the Court of Appeals' en banc opinion. See Sanjour v. EPA, 786 F. Supp. 1033 (D.D.C. 1992), aff'd 299 U.S. App. D.C. 304, 984 F.2d 434 (D.C. Cir. 1993), decision vacated and reh'g granted, 302 U.S. App. D.C. 382, 997 F.2d 1584, rev'd and remanded, 312 U.S. App. D.C. 121, 56 F.3d 85 (D.C. Cir. 1995) (en banc). In brief, this matter arises from a First Amendment challenge by William Sanjour and Hugh Kaufman -- two employees of the Environmental Protection Agency ("EPA") -- and the North Carolina Waste Awareness and Reduction Network ("NC WARN") to regulations prohibiting EPA employees from receiving travel expense reimbursement from private sources for unofficial speaking or writing engagements concerning the subject matter of the employees' work, while permitting such compensation for officially authorized speech on the same issues.
This Court granted summary judgment to defendants on all counts except a single claim of selective prosecution, and was affirmed by a panel of the Court of Appeals. A subsequent en banc decision, however, invalidated the "no-expenses" prohibition on First Amendment grounds and remanded the case "for proceedings consistent with this opinion." Sanjour, 56 F.3d at 88, 99.
I. Motions for Issuance of a Final Order
Plaintiffs move this Court to declare that the
regulations, policies, memoranda and directives of defendants which prohibit plaintiffs from paying or receiving reasonable travel reimbursements for non-official speech which concerns the responsibilities, programs and policies of the EPA, OGC [sic] and United States government are invalid . . . and . . . unconstitutional under the First Amendment, as they relate to plaintiffs, federal government employees who work below the grade level of senior executive service, and outside organizations similarly situated to plaintiff [NC WARN].
Pls.' Proposed Order at 1-2. Plaintiffs further ask this Court to enjoin defendants from enforcing "against plaintiffs, and against all federal employees below the senior executive service level of employment, . . . all restrictions placed on their reimbursement for reasonable travel expenses as prohibited on page 3 of EPA Ethics Advisory 91-1, under 5 C.F.R. § 2635.807(a), 5 C.F.R. § 2636.202(b) and under 41 C.F.R. § 304-1.3." Id. at 1.
The government challenges plaintiffs' requested relief on three grounds. First, the government contends that plaintiffs' proposed order is overbroad because it provides for a government-wide injunction. Defendants argue that because plaintiffs did not litigate this case as a class action, any relief entered by this Court should be restricted to the plaintiffs.
The Sanjour decision explicitly contemplates an injunction granting government-wide relief. The Court of Appeals explained that the test for "determining the constitutionality of a statute or regulation restricting government employee speech requires the reviewing court to consider . . . the 'interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression.'" Sanjour, 56 F.3d at 92 (quoting United States v. National Treasury Employees Union, 513 U.S. 454, 468, 130 L. Ed. 2d 964, 115 S. Ct. 1003 (1995)). The Court of Appeals went on to note that this test "requires the court to go beyond the facts of the particular case before it." 56 F.3d at 92. The only limitation on the court's decision was its statement that, though it was looking beyond the particular facts of the plaintiffs' case:
We cannot go so far as to include every possible application of the challenged scheme . . . . The balancing of interests relevant to senior executive officials might "present a different constitutional question than the one we decide today." We therefore express no view on whether the challenged regulations may be applied to senior executive employees.
Id. at 93 (internal citations omitted).
This Court thus concludes that government-wide relief for plaintiffs and all similarly situated government employees is appropriate. Such a ruling is well-supported by precedent, as courts frequently enjoin the enforcement of regulations ultimately held to be invalid. See, e.g., Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) ("When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated -- not that their application to the individual petitioners is proscribed."), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 949, 110 S. Ct. 865 (1990); Planned Parenthood Fed'n of Amer., Inc. v. Heckler, 229 U.S. App. D.C. 336, 712 F.2d 650 (D.C. Cir. 1983) (affirming final injunction prohibiting enforcement of invalidated regulations); Dimension Fin. Corp. v. Board of Governors of the Fed. Reserve Sys., 744 F.2d 1402 (10th Cir. 1984) (enjoining Board from enforcing or implementing ...