NATIONAL TREASURY EMPLOYEES UNION, ET AL., APPLICANTS V. UNITED STATES OF AMERICA, ET AL. No. A-504 In The Supreme Court Of The United States October Term, 1990 On Application To Stay The Enforcement Of Section 501(b) Of The Ethics Reform Act Of 1989 Memorandum For The United States In Opposition The applicants, National Treasury Employees Union (NTEU) and certain federal employees who are paid for their writing or public speaking, filed an action contending that Title VI of the Ethics Reform Act of 1989 (the Reform Act), Pub. L. No. 101-194, 103 Stat. 1760, violates the First Amendment. Title VI prohibits members of Congress, federal officers and employees (with limited exceptions) from accepting honoraria for any appearance, speech, or article. The district court denied applicants' request for a temporary restraining order or a preliminary injunction. The court of appeals also denied emergency injunctive relief, but expedited consideration of applicants' appeal from the denial of a preliminary injunction. Applicants filed this motion for a stay pending appeal to the court of appeals. 1.a. The Reform Act amended Section 501 of the Ethics in Government Act of 1978 to provide that Members of Congress and officers and employees of the federal government "may not receive any honorarium while that individual is a Member, officer or employee." Section 501(b). /1/ The statute defines "honorarium" as a payment of money or any thing of value for an appearance, speech or article by a Member, officer of employee, excluding any actual and necessary travel expenses incurred by such individual (and one relative) to the extent that such expenses are paid or reimbursed by any other person * * *. Section 505(3). An "officer or employee" is defined by the statute as any officer or employee of the Government except (A) any individual (other than the Vice President) whose compensation is disbursed by the Secretary of the Senate or (B) any special government employee (as defined in section 202 of title 18, United States Code). Section 505(2). Congress enacted the Reform Act on November 30, 1989. Section 603 of the Act provides that the ban on honoraria shall take effect on January 1, 1991. On November 29, 1990 -- one year after passage of the Act and scarcely more than a month before its effective date -- the NTEU brought an action in the United States District Court for the District of Columbia asserting that the Reform Act is invalid under the First Amendment. The American Federation of Government Employees filed a similar action on December 13, 1990. A group of individual government employees brought a third action in the district court on December 14, 1990. b. On December 20, 1990, following a hearing, the district court (Jackson, J.) issued an order consolidating the three actions, denying plaintiffs' application for a temporary restraining order and motion for a preliminary injunction, and specifically denying the plaintiffs' motion for a temporary restraining order pending appeal of the denial of a preliminary injunction. Appl. App. A. The district court based its decision "on the express and exclusive ground that I find none of the plaintiff applicants to present claims which would entitle them to immediate emergency relief on the ground that they will sustain irreparable injury without some remedy available to them at some later time in some form." Appl. Exh. 8, at 24-25. c. The court of appeals (Mikva, R. Ginsburg, and Silberman, JJ.) denied the applicants' emergency motions for preliminary injunctive relief. Appl. App. B. The court's order stated that the applicants "have not demonstrated the requisite irreparable injury to warrant the preliminary relief sought." Ibid. The court of appeals further ordered that the consolidated appeals from the denial of a preliminary injunction be placed on an expedited schedule. Breifing will be completed by January 17, 1991, and oral argument will take place on January 29, 1991. Ibid. 2. The application for a stay should be denied. Applicants' statement that they seek only to "maintain the status quo" (Appl. 4) is far too modest. In fact, applicants seek an order summarily enjoining the enforcement of an important provision of the Reform Act pending further proceedings in the courts below. This case does not warrant such an extraordinary order, nor does it present the unusual and compelling circumstances that would justify overriding the determination of both lower courts that a stay is unwarranted. Accordingly, the application should be denied. a. There is no reasonable probability that four Members of this Court would vote to grant certiorari in order to resolve the issues that appplicants raise, or that five Members of this Court would accept applicants' position on the merits if certiorari were granted. This Court has recognized that the government as an employer has interests "in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering v. Board of Education, 391 U.S. 563, 568 (1968). See also Connick v. Myers, 461 U.S. 138, 140 (1983). In reviewing such regulations, the Court has applied a balancing analysis rather than strict scrutiny, and has upheld the regulation as long as it is supported on "legitimate grounds." Rankin v. McPherson, 483 U.S. 378, 388 (1987) (citing Connick, 461 U.S. at 150). In United States Civil Service Commission v. Letter Carriers, 413 U.S. 548 (1973), the Court upheld the constitutionality of the Hatch Act's broad prohibition against partisan political activity by federal employees. See also United Public Workers of America v. Mitchell, 330 U.S. 75 (1947). In the Letter Carriers case, the Court rejected a contention that the Hatch Act was overbroad, because the legislative goal could have been achieved through a narrower prohibition against political coercion of federal employees. The Court accepted Congress's determination that a broad prohibition was necessary and that line-drawing was impracticable. Id. at 566. The Court also noted that "it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent." Id. at 565. The Reform Act, like the Hatch Act, imposes a broad prohibition in order to promote confidence in the integrity of the federal service and avoid even the appearance of impropriety. Unlike the Hatch Act, however, the Reform Act imposes no direct restriction on speech, but instead prohibits federal employees from accepting payment for appearances, speeches, and articles. This is at most an indirect restriction on employee speech. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 756 (1976) ("(f)reedom of speech presupposes a willing speaker"). /2/ Applicants contend that the ban on honoraria does not further a valid government purpose. Appl. 30. That contention is simply false. The prohibition advances the government's compelling interest in minimizing government corruption and increasing public confidence in the integrity of the government. This Court has recognized the importance of that interest. See, e.g., Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 210 (1982); Buckley v. Valeo, 424 U.S. 1, 26-29 (1976). Applicants do not deny that these are legitimate and important government interests, but instead assert (Appl. 30) that "there is scant evidence that Congress was even aware that the legislation as drafted and passed would * * * extend() to federal employees below GS-16." That assertion is also untenable. The statute expressly defines "officer or employee" to mean "any officer or employee of the Government," with certain specified exceptions. Section 505(2) (emphasis added). It is difficult to see how Congress could have enacted such language while under the impression that it applied only to "officers and employees above grade GS-15." And "(i)t is not the law that a statute can have no effects which are not explicitly mentioned in its legislative history * * *." Pittston Coal Co. v. Sebben, 488 U.S. 105, 115 (1988). In any event, "a good part of (the Reform Act) is based on the recommendations of the President's ethics commission," 135 Cong. Rec. H8747-8748 (daily ed. Nov. 16, 1989) (statement of Rep. Martin), and the Commission expressly recommended that the ban on honoraria apply to "all officials and employees in all three branches of government." To Serve With Honor: Report of the President's Commission on Federal Ethics Law Reform 35-36 (1989). /3/ The Commission explained that "(t)o curtail the risk that individuals will find a way to circumvent these restrictions, the ban on honoraria necessarily needs to extend both to activities related to an individual's official duties and to other activities." Id. at 36. Following the passage of the Reform Act, moreover, Senators Glenn and Roth introduced a bill that would have exempted federal employees below the grade of GS-16 from the ban on honoraria. See 136 Cong. Rec. S17,257 (daily ed. Oct. 26, 1990). The bill, which was not enacted, further demonstrates that Congress was aware that the Reform Act applies to federal employees below the grade of GS-16. Nor is there any merit to applicants' implicit suggestion that the Constitution somehow requires Congress to draw a line between GS-16 employees and GS-15 employees. Federal employees below grade GS-16 may and often do make policy or exercise discretion in matters that have a significant impact on private parties. /4/ Applicants also contend (Appl. 39-41) that Congress could have achieved its objective by enacting narrower restrictions on honoraria. But this ignores the fact that partial restrictions on honoraria would be more subject to circumvention, as well as the possibility that partial restrictions would not be sufficient to restore public confidence in the integrity of government. Congress recognized that it was enacting a broad prohibition, but reasonably determined that such a prohibition was necessary to restore public confidence in government. /5/ b. The balance of hardships does not favor the grant of a stay in this case. As an initial matter, the applicants' "failure to act with greater dispatch tends to blunt (their) claim of urgency and counsels against the grant of a stay." Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1318 (1983) (Blackmun, J., in chambers). See also Beame v. Friends of the Earth, 434 U.S. 1310, 1313 (1977) (Marshall, J., in chambers) (undue delay "vitiate(s) much of the force of * * * allegations of irreparable harm"). The applicants allowed twelve months of the thirteen month transition period allowed by Congress to pass before filing an action in the district court. Applicants offer multiple explanations for waiting until the last minute -- that they did not know about the law, or hoped Congress would change it, or hoped that the Office of Government Ethics would issue limiting regulations despite the plain language of the statute. Appl. 16 n.6. None of these factors justified applicants in waiting until less than five weeks before the effective date of the statute to file a complaint. There is no reason for this Court to overturn the determination of the district court and the unanimous determination of the court of appeals that applicants will not be irreparably harmed by denial of a stay. Applicants cite Elrod v. Burns, 427 U.S. 347, 373-374 (1976), for the proposition that deprivation of First Amendment rights, "even for minimal periods of time," constitutes irreparable harm. Appl. 2. But the Court's statement in Elrod cannot be and has not been read to require entry of a preliminary injunction whenever a plaintiff alleges deprivation of a First Amendment right. The individual applicants assert that they cannot continue to produce articles and deliver speeches unless they are paid for doing so. But the stay applicants seek is unnecessary to allow them to continue with their activities in many cases. For example, the Office of Government Ethics, the agency charged with administering the Reform Act for the Executive Branch, has interpreted the statute to permit compensation "in satisfaction of the employee's obligation under a contract entered into prior to January 1, 1991." See Appl. Exh. 2, at 4. Thus, affiant Shelton's "commitment * * * to write about a sporting event scheduled for January 5" (Appl. 18) may not even be covered by the Act. And applicant Grant's plans "to travel to Yellowstone National Park in mid-January to research a planned article" (ibid.) may be exempt either as a prior contract or under the express statutory provision (Section 505(3)) allowing reimbursement for travel expenses. In addition, given their expressed views on their likelihood of success on the merits, applicants might arrange to defer payment for speeches or articles pending the outcome of this case. Not only is a stay unnecessary to prevent irreparable harm, it also would be insufficient to eliminate the underlying uncertainty about the constitutional validity of the ban on honoraria. The court of appeals has expedited applicants' appeal, and may be expected to rule on it promptly after oral argument in late January. Consequently, even if this Court were to grant a stay, federal employees would continue to face a risk of non-payment for all but the shortest term investments of time and resources in speaking and writing. The "assurance" applicants seek (Appl. 18) can be achieved only through prompt resolution of their claims on the merits. The lower courts have taken reasonable steps to achieve precisely that result. c. The harm to the public interest from a stay outweighs whatever injury applicants may suffer absent a stay during the relatively short period until the court of appeals decides their appeal from the district court's denial of a preliminary injunction. An order summarily enjoining enforcement of an important provision of the Reform Act would cast serious doubt on the constitutional validity of that provision. Such an order would undermine public confidence in the federal government's ability to establish and maintain high standards of ethics, thus defeating a basic purpose of the statute. d. The burden on an applicant seeking a stay in this Court "is particularly heavy when * * * a stay has been denied by the District Court and by a unanimous panel of the court of appeals." Beame v. Friends of the Earth, 434 U.S. 1311, 1312 (1977) (Marshall, J., in chambers). See also Whalen v. Roe, 423 U.S. 1313, 1316 (1975) (Marshall, J., in chambers). In addition, the deference due to the court of appeals is greater than usual where, as here, the applicants seek relief pending further action by the court of appeals. See New York v. Kleepe, 429 U.S. 1307, 1310 (1976) (Marshall, J., in chambers); O'Rourke v. Levine, 80 S. Ct. 623, 4 L. Ed.2d 615 (1960) (Harlan, J., in chambers). This Court ordinarily reviews interlocutory orders only in the most exceptional cases. Although the Court has power to issue stays (or, more properly, writs of injunction under 28 U.S.C. 1651(a)) in cases involving interlocutory orders, such injunctions "should be used sparingly and only in the most critical and exigent circumstances." Williams v. Rhodes, 89 S. Ct. 1,2, 21 L. Ed.2d 69, 70 (1968) (Stewart, J.). See also Beswick & Co. v. United States, 75 S. Ct. 912, 100 L. Ed.2d 1510 (1955) (Harlan, J.). Here, applicants fall far short of demonstrating that this is the type of highly unusual case that would justify such an order. It is therefore respectfully submitted that the application for a stay should be denied. KENNETH W. STARR Solicitor General JANUARY 1991 /1/ Citations are to the Ethics in Government Act, as amended. /2/ The cases cited by applicants in support of their contention that the Reform Act should be subjected to strict scrutiny are inapposite. In Rutan v. Republican Party of Illinois, 110 S. Ct. 2729 (1990), the Court applied the strict scrutiny standard only after it concluded that the purpose of the challenged restrictions was to promote the party system rather than to improve the integrity and efficiency of the government. See id. at 2735 n.4. Meyer v. Grant, 486 U.S. 414 (1988), did not concern restrictions on government employees to promote the efficiency and integrity of the government. The prohibition against paid circulators at issue in that case restricted "core political speech." Id. at 420. In addition, the proponents of the amendment in Grant were attempting to reach a large and widely dispersed audience in a limited period of time. In those circumstances, the prohibition against paid circulators was in effect a direct limitation on expression. Similarly, the regulations invalidated in Riley v. National Federation of the Blind, 487 U.S. 781 (1988), not only bore a questionable relationship to the asserted government interests but also restricted charitable solicitations that were necessary to allow the regulated charities to engage in speech. /3/ The relevant passages from the Report of the President's Commission are attached to this brief as an appendix. /4/ See F. von Hayek, The Road to Serfdom 104 (1944) ("(T)he power which a multiple millionaire, who may be my neighbor and perhaps my employer, has over me is very much less than that which the smallest fonctionnaire possesses who wields the coercive power of the state * * *."). /5/ See, e.g., 135 Cong. Rec. H8766 (daily ed. Nov. 16, 1989) (statement of Rep. Miller); id. at H8751 (statement of Rep. Packard); ibid. (statement of Rep. Smith); id. at H8763 (statement of Rep. Stenholm); id. at H8766 (statement of Rep. Wolpe); id. at H8769 (statement of Rep. Glickman); id. at S15947 (daily ed. Nov. 17, 1989) (statement of Sen. Mitchell). APPENDIX