the civil rights jurisdiction and that, as well, the court was barred by the injunction proscription of § 1341. A fortiori, is this single judge court foreclosed in these regards.
cited by plaintiffs are inapposite, uncontrolling and do not lead to a different result. These cases involved suits for refund of taxes where recoupment appeared doubtful or for alleged illegal overassessment of taxes and relied principally upon Central Steel & Wire Co. v. City of Detroit, 99 F. Supp. 639 (E.D. Mich. 1951), reh. denied 101 F. Supp. 470 (1951), as authority for their rationale. Examination of Central Steel reveals that the tax in question was levied as a single ad valorem assessment. In granting the relief demanded -- a refund of taxes arbitrarily overassessed -- the court required only a reassessment of the property base of the tax, but did not impair its proper collection. The taxing schemes of the cases that followed Central Steel involved, for the most part, single assessment ad valorem taxes. In contradistinction, the instant case does not deal with the assessment and taxation of property, but rather with a local income tax. To grant a refund of taxes paid would, in effect, enjoin or restrain the future collection of such taxes from the classes represented by the plaintiffs. It would be foolhardy for the Municipality of Philadelphia to collect this tax if it must immediately grant a refund. The Johnson Act, section 1341, supra, does not countenance such procedure.
As was stated in the three-judge court opinion, plaintiffs seek to "limit the source" from which the tax may be collected, rather than to enjoin its operation. In this latter regard, they rely upon Director of Revenue, State of Colorado v. United States, 392 F.2d 307 (10 Cir. 1968). In so doing, they distort the "source of tax" concept, as employed in Colorado. In that case, a determination was made regarding the priority of tax liens between an agency of the United States and the State of Colorado. It was held that the Johnson Act was inapplicable because the United States merely sought to have the Colorado tax subordinated to its prior valid lien and not to suspend its collection indefinitely. Here, there is no question of priority of tax liens on property. Instead, the plaintiff-taxpayers seek to exempt themselves permanently from the reach of personal tax liability. They do not seek temporarily to confine the collection of taxes to a particular physical property or chattel, as in Colorado. The approach which they urge would amount to an impermissible circumvention of the Johnson Act.
There remains for disposition that portion of the complaint directed against the United States Government and its representatives regarding Executive Regulations Circular No. A-38 and Naval Joint Instruction 12750.2B. Under Circular No. A-38, informational wage reports are made available to Philadelphia. Plaintiffs seek to curtail such reporting. Their attack upon this regulation is that it unconstitutionally effectuates a denial of their right to equal protection of laws, constitutes a taking of property without due process and results in an improper invasion of their right of privacy. Obviously, the Government acting through its official personnel at the Naval Shipyard is not taking property without due process by supplying information regarding wages earned by employees at the yard. It is but a reasonable exercise of employer responsibility. With respect to privacy of financial affairs, these federal employees have no greater right than others whose employers are obliged to make known the amount of wages earned by employees subject to a valid taxing authority. Application of Thompson, supra, citing at page 98 the Buck Act, 4 U.S.C. § 106. The Executive Regulation under attack cannot be violative of plaintiffs' constitutional rights, since it is merely a reasonable reporting scheme to an authority, the Municipality of Philadelphia, which has a right to know the matters about which inquiry has been made. Even if the tax in question were found to be illegal, it would not follow that this reporting regulation would be invalid per se.10
So, too, with Naval Joint Instruction 12750.2B providing for discipline of delinquent shipyard taxpayers by suspension or removal. This regulation is a reasonable and necessary exercise of executive authority over internal discipline in order to promote and to maintain the efficiency and image of the Naval Service which, it should be observed, is an essential arm of the National Government. These employees overlook one of the obligations imposed by their employment on a Federal Reservation, namely, payment of just debts, particularly taxes. Application of Thompson, supra. The pertinent federal regulation, 5 C.F.R. 735.207 (1971), provides:
"Indebtedness: An employee shall pay each just financial obligation in a proper and timely manner, especially one imposed by law such as Federal, State, or local taxes. For the purpose of this section, a 'just financial obligation' means one acknowledged by the employee or reduced to judgment by a court, and 'in a proper and timely manner' means in a manner which the agency determines does not, under the circumstances, reflect adversely on the Government as his employer. In the event of dispute between an employee and an alleged creditor, this section does not require an agency to determine the validity or amount of the disputed debt." (Emphasis added.)
While it is true, as argued by plaintiffs, that taxes yet to be collected by the Municipality of Philadelphia are not a "just financial obligation," as defined in the Code of Federal Regulations, because neither "acknowledged by the employee or reduced to judgment by a court," nevertheless, we may assume that federal agencies do not arbitrarily employ disciplinary proceedings. If they do, a wrong may be corrected by resort to legal proceedings. Administrative action is not pursued until the financial obligation of the employee is imposed by orderly collection procedures, which may very well include a judgment for the amount of taxes due, where the employee refuses to acknowledge the validity of the tax obligation. Discipline only follows fault; every opportunity is afforded to an employee to contest an alleged just financial obligation or to remedy his default when it has in fact been established. See Administrative Procedure Act, 5 U.S.C. § 500 et seq.
The challenged Naval Instruction providing for discipline and Circular No. A-38 authorizing submission of wage reports were promulgated pursuant to 5 U.S.C. § 301, whereby Executive departmental heads may prescribe regulations for their respective employees, such as has been done in the instant case. This statute does not, however, "authorize withholding information from the public or limiting the availability of records to the public." Moreover, unless such regulations are clearly inconsistent with the purpose of the statute, they have the force and effect of law. Maryland Casualty Co. v. United States, 251 U.S. 342, 40 S. Ct. 155, 64 L. Ed. 297 (1920); Tasker v. U.S., 178 Ct. Cl. 56 (1967); G.L. Christian & Associates v. U.S., 160 Ct. Cl. 58, 320 F.2d 345 (Ct. Cl. 1963), cert. denied 375 U.S. 954, 84 S. Ct. 444, 11 L. Ed. 2d 314 (1963), reh. denied 377 U.S. 1010, 84 S. Ct. 1906, 12 L. Ed. 2d 1059 (1964).
In strenuously pressing their broadest challenge to the constitutionality of the Government's Executive Regulations, the plaintiffs stress that however salutary the purpose of these requirements might be, nevertheless, they unconstitutionally impress a "prior restraint" by the establishment of a "pay or else" condition, unrelated to their employment contracts, and thereby restrict freedom of movement to and from their place of employment; further, that this unreasonable condition is so disruptive of their employment as to constitute a "chilling effect" upon their First Amendment right to freedom of speech, in this instance, articulated as a right to protest and refuse payment of the Philadelphia wage tax.
In advancing this circumvolution of the First Amendment, plaintiffs confuse constitutionally permissible regulation of non-communicative conduct with unconstitutional suppression of free speech. This very distinction between conduct and speech was disentangled from the First Amendment protection in United States v. O'Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). In O'Brien, it was urged that "symbolic speech" was within the protection of the First Amendment, thereby absolving a draft-protestor from prosecution for publicly destroying his draft card as his symbolic objection to the war and the draft. In refusing to accept this proposition the Supreme Court, speaking through then Chief Justice Warren, said:
"We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea . . . . This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." ( Id. at 376, 88 S. Ct. at 1678).
"To characterize the quality of governmental interest which must appear" to justify governmental regulation in the conduct or "symbolic speech" situations, the Court set down certain tests in O'Brien :
"[We] think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." ( Id. at 377, 88 S. Ct. at 1679.)