filing of suit. At 1484-1490. The court in Andrade specifically noted that "the exhaustion requirement is not . . . jurisdictional in nature," id. at 1484, and should therefore be applied not blindly, but "in accordance with its purpose." Id.
In Andrade, employees of the Department of Justice, without first resorting to the CSRA's remedies, challenged a reduction in force (RIF), alleging that its implementation violated federal personnel regulations, statute, and the Appointments Clause, Art. II, § 2, cl. 2 of the Constitution. The Court of Appeals, after examining the rationale behind the exhaustion requirement, id. at 1484-1485, dismissed the personnel and statutory claims for failure to exhaust the CSRA's remedies, holding that the employees were "obligated to proceed in the first instance in accord" with the CSRA's scheme. Id. at 1486. But the court did not dismiss the constitutional claim, in which the employees contended that in contravention of the Appointments Clause the officials implementing the RIF were not appointed by the President and confirmed by the Senate. The court reasoned that exhaustion makes little sense in constitutional claims such as the claim under the Appointments Clause, where the decisionmakers in the CSRA's scheme "have neither the qualifications nor the expertise to articulate and develop these principles." Id. at 1491.
Applying Andrade's exhaustion analysis to the claims of Ms. Keeffe and the Union, the Court concludes that they may press their First Amendment claims in this forum. Ms. Keeffe may certainly press her claim, since she has already exhausted her administrative remedies by litigating the Library's adverse action to the point of no further appeal. But even the Union, which has not exhausted its administrative remedies, may pursue its First Amendment claim directly in this Court, since the claim is a constitutional one susceptible of immediate disposition on summary judgment, and requires an analysis wholly outside the expertise of the CSRA's decisionmakers. Furthermore, even though the Union might also be able to challenge the Library's interpretation and application through nonconstitutional avenues -- by alleging an unfair labor practice or a grievance -- the Union need not pursue its nonconstitutional claims first. Like the constitutional claim in Andrade, the Union's First Amendment claim need not await exhaustion of nonconstitutional claims. See id. at 1491-1493.
In short, under Andrade both Ms. Keeffe and the Union are free to bring their constitutional claims here.
This conclusion is supported by a line of cases in this Circuit predating Andrade. Though speaking in terms of CSRA exclusivity rather than exhaustion, see, e.g., Carducci v. Regan, 230 U.S. App. D.C. 80, 714 F.2d 171, 175 (D.C.Cir. 1983) ("the exclusivity of CSRA remedies"), those cases held that a district court must entertain the constitutional claim of a federal employee, especially in the unusual situation where the employee is limited in his choice of remedies under the CSRA and cannot appeal to the MSPB. Carducci, 714 F.2d at 175-176 (reassigned federal employee, unable to appeal to the MSPB, could bring Fifth Amendment action in federal district court); Cutts v. Fowler, 223 U.S. App. D.C. 414, 692 F.2d 138, 140 (D.C.Cir.1982) (transferred federal employee, unable to appeal to MSPB, could bring Fifth Amendment action in federal district court); Borrell v. United States International Communications Agency, 221 U.S. App. D.C. 32, 682 F.2d 981, 990 (D.C.Cir. 1982) (probationary federal employee, unable to appeal to the MSPB, could bring a First Amendment action in federal district court). See Bartel v. Federal Aviation Administration, 223 U.S. App. D.C. 297, 725 F.2d 1403 at 1415 (D.C.Cir.1984) (district court must entertain constitutional claim of federal employee where the statutory scheme protecting federal employees provides no remedy).
Plaintiffs here, because of the Library's status as a legislative rather than executive agency, do not have available to them the CSRA's statutory appeals procedure culminating in the MSPB, and therefore, like plaintiffs in Carducci, Cutts and Borrell, may press their constitutional claims in this Court.
Lastly, the Court notes that its decision to permit Ms. Keeffe and the Union to litigate their constitutional claims may be at variance with the Eighth Circuit's opinion of Kurzejeski. The court there did not adopt the exhaustion analysis of Andrade, but instead adopted the arguments of defendants here that the CSRA is "the exclusive means of redress" even for constitutional claims. Kurzejeski, 706 F.2d at 840. In Kurzejeski, the employees alleged that they were discharged from a Veterans Administration Hospital because of their union activity, in violation of their rights under the First Amendment. Even though the court there recognized that the employees clearly alleged conduct which violated the First Amendment's protection of union membership and participation, the court still held that the employees had to process their constitutional claims through one of the various mechanisms established by the CSRA, and not in district court. Kurzejeski, 706 F.2d at 838-39. See Columbia Power Trades, 671 F.2d at 327 ("it is manifestly the expressed desire of Congress to create an exclusive statutory scheme"); Buckley v. American Federation of Television and Radio Artists, 496 F.2d 305 (2d Cir.) (suit alleging that agreement between private employer and union violated First Amendment, held to fall within the exclusive jurisdiction of the National Labor Relations Board as an unfair labor practice), cert. denied, 419 U.S. 1093, 95 S. Ct. 688, 42 L. Ed. 2d 687 (1974); Schussel v. Weinberger, 562 F. Supp. 819 (D.Mass.1983).
Nonetheless, even under Kurzejeski's strict jurisdictional analysis, this Court may have jurisdiction over plaintiffs' constitutional claims. First, Kurzejeski held that First Amendment claims arising from the employee's conduct at the workplace had to be processed under the CSRA, but specifically left open the question of independent federal jurisdiction over First Amendment claims arising from conduct away from the workplace. 706 F.2d at 843 n. 9. Here, Ms. Keeffe and the Union's claim arises from conduct taking place on the employee's own time away from the workplace at political conventions. See Kelly v. United States Postal Service, 492 F. Supp. 121, 126-27 (S.D.Ohio 1980). Second, Kurzejeski stressed that the CSRA preempts federal district court jurisdiction even over constitutional claims because of the CSRA's comprehensive remedial scheme. But plaintiffs here do not enjoy the CSRA's full array of remedies; they cannot appeal to the MSPB. Consequently, in the present context the CSRA may not necessarily have its usual preclusive effect. Last, the Court in Kurzejeski pointed out that by processing the constitutional claims through the CSRA, the plaintiffs there could still obtain judicial review. Id. at 841. In contrast, Ms. Keeffe has no appeal from the hearing officer's determination. This absence of judicial review also argues in favor of recognizing independent jurisdiction in this Court. See Dugan v. Ramsay, 727 F.2d at 194-95.
In sum, the CSRA does not deprive this Court of its jurisdiction to decide plaintiffs' constitutional claims.
Accepting the premise that there is an exception to the normally exclusive jurisdictional scheme established by the CSRA, the Court now considers the merits: The question presented is whether the Gude Memorandum and the adverse action against Ms. Keeffe violate plaintiffs' constitutional rights.
The foundation upon which analysis of the merits must build is that serving as a delegate, a political activity, is protected by the First Amendment, see, e.g., Buckley v. Valeo, 424 U.S. 1, 14-15, 24-25, 96 S. Ct. 612, 632-633, 637-638, 46 L. Ed. 2d 659 (1976); United Public Workers v. Mitchell, 330 U.S. 75, 94-95, 67 S. Ct. 556, 566-567, 91 L. Ed. 754 (1947), and perhaps by other constitutional provisions as well. See Public Workers, 330 U.S. at 94-95, 67 S. Ct. at 566. The components of the First Amendment triggered by such activity include the right to associate and the right to participate in political activities. See Buckley v. Valeo, 424 U.S. at 14-15, 24-25, 96 S. Ct. at 632-633, 637-638; United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 567, 93 S. Ct. 2880, 2891, 37 L. Ed. 2d 796 (1973). As a consequence of this constitutional protection, the Supreme Court in Buckley v. Valeo invalidated statutory limitations on a candidate's expenditure of funds in a political campaign for federal elective office, holding that those limitations "place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate." 424 U.S. at 58-59, 96 S. Ct. at 653-654.
However, this First Amendment right is not absolute. Buckley v. Valeo, 424 U.S. at 25, 96 S. Ct. at 637; Letter Carriers, 413 U.S. at 567, 93 S. Ct. at 2891. Even a significant interference with this right may be sustained if the governmental interest is sufficiently important, and if the governmental interference is "closely drawn to avoid unnecessary abridgment of associational freedoms." Buckley v. Valeo, 424 U.S. at 25, 96 S. Ct. at 638. Thus, for example, the Supreme Court in Buckley v. Valeo, even while invalidating the limitations on expenditures by political candidates, upheld limitations on political contributions to those candidates, despite the protection afforded by the First Amendment.
In this instance, the government's interest is "in promoting the efficiency of the public services it performs through its employees." Letter Carriers, 413 U.S. at 564, 93 S. Ct. at 2890 (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968)). The Supreme Court has repeatedly upheld restrictions on the political activities of governmental employees when such restrictions are properly designed to achieve the governmental interest in political neutrality in the operation of government. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); Letter Carriers; United Public Workers. In Letter Carriers the Court upheld the constitutionality of section 9(a) of the Hatch Act, which prohibits federal employees of the executive branch from taking "an active part in political management or political campaigns." In so holding, the Supreme Court announced that "an Act of Congress . . . would . . . unquestionably be valid . . . if, in plain and understandable language, the statute forbade activities such as . . . serving as a delegate . . . to a political party convention." Letter Carriers, 413 U.S. at 556, 93 S. Ct. at 2886.
Thus, if the Library of Congress had sought to bar Ms. Keeffe from serving as a delegate to political conventions by means of "an Act of Congress" drawn in "plain and understandable language," that restriction on her political involvement would unquestionably be valid under the First Amendment. Here, however, defendants relied upon a set of regulations promulgated by the Library of Congress rather than a congressional enactment. Plaintiffs argue that there has been no legislative finding by Congress that restriction of the political activities of legislative employees -- as distinct from executive employees encompassed by the Hatch Act -- is a compelling public interest, and no congressional delegation of authority to the Library to limit those activities. Furthermore, according to plaintiffs, the regulation as interpreted by the Library -- in contrast to the strictly construed enactments in Letter Carriers, Public Workers and Broadrick -- is by no means "plain and understandable," but rather unconstitutionally vague and overbroad. For all these reasons, plaintiffs contend that the Library's actions are repugnant to the Constitution.
This Court need not resolve all of the problems raised by plaintiffs, for the Court holds that Paragraph B of LCR 2023-7, Section 3, as interpreted and applied, is unconstitutionally vague.
A vagueness challenge is in reality a due process challenge under the Fifth Amendment. E.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 497, 102 S. Ct. 1186, 1192, 71 L. Ed. 2d 362 (1982). The Supreme Court has set forth the following formulation to govern the vagueness inquiry:
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.
Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222 (1972) (footnotes omitted) (quoted in Flipside, 455 U.S. at 498, 102 S. Ct. at 1193). This inquiry applies with equal force to regulations as it does to statutes. See, e.g., Big Mama Rag v. United States, 203 U.S. App. D.C. 448, 631 F.2d 1030 (D.C.Cir.1980) (invalidating IRS regulation as vague).
This vagueness scrutiny under the Due Process Clause is applied with varying force depending on the circumstances. It applies less strictly to enactments concerned with economic regulation, those involving only civil penalties, and those that contain a scienter requirement which mitigates the problem of adequacy of notice. It applies with greater strictness to criminal laws, and laws implicating constitutionally protected rights, such as the First Amendment, for the reason that
where a vague statute "abuts upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "'steer far wider of the lawful zone' . . . than if the boundaries of the forbidden areas are clearly marked."