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KEEFFE v. LIBRARY OF CONGRESS

May 16, 1984

Mary Ann KEEFFE, et al., Plaintiffs,
v.
LIBRARY OF CONGRESS, et al., Defendants



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge:

 The central issue in this litigation concerns the scope of the First Amendment rights of an employee serving in the legislative branch of the federal government. The specific question posed is whether the Library of Congress, on the authority of its current regulations, may discipline one of its professional analysts employed in the Congressional Research Service of the Library, for engaging in political activity on her own time.

 INTRODUCTION

 Library of Congress Regulation ("LCR") 2023-7 provides that employees of the Library retain the right to "serve as . . . delegates to . . . political . . . conventions" on their own time. That right, however, is tempered by another portion of LCR 2023-7 which provides that the Library may prohibit or limit the participation of its employees in a political activity "if participation in the activity would . . . create a conflict or apparent conflict of interests."

 Plaintiff Mary Ann Keeffe, a Library employee, attended the 1980 Democratic Convention as an official delegate while on approved annual leave. She attended despite an opinion from the Library's Office of General Counsel that her attendance would create an apparent conflict of interests. As a result of Ms. Keeffe's attendance, the Library disciplined her by transferring her to another position within the Library for a period of one year; during that period she was ineligible for promotion. After exhausting certain remedies provided by the collective bargaining agreement between the Library and its employees, Ms. Keeffe, joined by the Congressional Research Employees Association ("Union") brought suit in this Court against the Library of Congress and certain Library officials claiming that defendants' actions violated plaintiffs' rights under the First Amendment. Both plaintiffs request declaratory and injunctive relief; Ms. Keeffe, in addition, seeks compensatory and punitive damages from her immediate superior at the Library.

 At this time, the Court is presented with the defendants' motion to dismiss and the parties' cross motions for summary judgment. The motions present three issues: first, whether this matter is essentially a constitutional dispute with jurisdiction in this Court, or whether it is essentially a federal sector labor-management dispute with jurisdiction in the administrative and arbitral scheme set out in the applicable collective bargaining agreement pursuant to Title VII of the Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C. §§ 7101 et seq., with judicial review only in a court of appeals; second, assuming that jurisdiction lies in this Court, whether defendants' conduct violated the First Amendment or any other constitutional provision; third, assuming that defendants' conduct did violate the Constitution, whether Ms. Keeffe, as part of her remedy, may maintain a cause of action for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).

 For the reasons discussed below, the Court determines that it has jurisdiction to entertain plaintiffs' claims; that defendants have violated plaintiffs' constitutional rights; and that consequently, plaintiffs are entitled to declaratory and injunctive relief. However, the Court rules that on the undisputed facts of this case Ms. Keeffe is not entitled to damages.

 Because the contours of the collective bargaining agreement governing the action taken by the Library against Ms. Keeffe are controlled by the CSRA, this Memorandum Opinion begins with a discussion of the CSRA's framework before proceeding to the factual background. This will then be followed first, by a discussion of the legal question of jurisdiction, then the merits, and lastly, a discussion of the scope of the appropriate remedy.

 Statutory Framework

 The CSRA establishes a comprehensive scheme for review of hiring, promotion and dismissal decisions affecting government personnel in the federal sector. Typically, three somewhat overlapping channels of review are available to a federal employee dissatisfied with an employer's personnel decision. See generally Carter v. Kurzejeski, 706 F.2d 835 (8th Cir.1983). First, an employee may take advantage of the grievance resolution procedure that by the CSRA's mandate must be included in any collective bargaining agreement. 5 U.S.C. § 7121(a). Any grievance within the coverage of the negotiated grievance procedure that is not satisfactorily settled through that procedure, is subject to binding arbitration. § 7121(b)(3)(C). Normally the employee may then file with the Federal Labor Relations Authority ("FLRA") exceptions to the arbitration award, § 7122, and afterwards, under limited circumstances, may seek judicial review of a final order of the FLRA in the appropriate court of appeals. § 7123. Under certain circumstances, rather than proceeding first before the FLRA the aggrieved employee may petition for review of the arbitration decision directly in the appropriate court of appeals. See § 7121(f); Local 2578, American Federation of Government Employees v. GSA, 228 U.S. App. D.C. 475, 711 F.2d 261, 263 (D.C.Cir.1983).

 While this negotiated grievance procedure often covers all potential grievances, of importance here is that the CSRA permits a union and a federal agency to exclude certain matters from the negotiated grievance procedure and to establish some alternate mechanism for resolution of those matters. § 7121(a)(2). See H.R.Rep. No. 1717, 95th Cong., 2d Sess. 157 (1978), U.S. Code Cong. & Admin.News 1978, p. 2723.

 Second, when appropriate, an employee may file with the FLRA a charge alleging an unfair labor practice on the part of the employer. § 7118. See § 7116. In processing the unfair-labor-practice charge, the FLRA fulfills the same function as that of the National Labor Relations Board in the private sector. See Columbia Power Trades v. U.S. Department of Energy, 671 F.2d 325 (9th Cir.1982). An unfair labor practice encompasses a refusal to bargain in good faith, § 7116(a)(5); see § 7117, and also the enforcement by the federal employer of a regulation in conflict with the collective bargaining agreement. § 7116(a)(7). The FLRA, in remedying an unfair labor practice, may issue a cease and desist order, § 7118(a)(7)(A), and may order reinstatement of an employee with back pay. § 7118(a)(7)(C). The FLRA's final order is subject to review in the court of appeals under section 7123.

 Third, an employee may utilize the statutory appeals procedure in which he appeals an adverse action, see § 7512, initiated by the employer to the Merit Systems Protection Board ("MSPB"), §§ 7513(d), 7701, and from there to the court of appeals. § 7703. The parties here agree that Library employees such as Ms. Keeffe -- as legislative, not executive employees -- are excluded from the competitive service, cf. § 2101, and therefore lack the benefit of this statutory route to the Merit Systems Protection Board. Thus, for purposes of this suit, there exist only two nonjudicial avenues: the negotiated grievance procedure (including any alternate mechanism under section 7121(a)(2)) set out in the collective bargaining agreement, and the unfair-labor-practice process before the FLRA.

 In section 7116(d) the CSRA makes clear that in instances where an issue falls both within the collective bargaining agreement's negotiated grievance procedure and also within the FLRA's jurisdiction over unfair labor practices, the aggrieved party has the option of electing one or the other of the procedures, but not both.

 As the recitation of facts below will reveal, for adverse actions initiated by the Library against an employee the collective bargaining agreement between the Library and the Union establishes an alternate mechanism -- not part of the negotiated grievance procedure -- for the employee to challenge that adverse action. Ms. Keeffe litigated her claim through that contractual adverse action scheme; the Union made an aborted attempt to litigate its claim as an unfair labor practice before the FLRA.

 Factual Background

 Ms. Keeffe is employed as an analyst in the Economics Division of the Congressional Research Service ("CRS"). The CRS is a department of the Library created to assist Congress in the analysis of legislative proposals and recommendations submitted by the executive branch. The CRS is obligated to perform its duties "without partisan bias." 2 U.S.C. § 166(d). The Congressional Research Employees Association is a labor union serving as the exclusive bargaining agent for all eligible employees of the CRS. The Union joins Ms. Keeffe in her request for declaratory and injunctive relief.

 Defendant Daniel J. Boorstin is the Librarian of Congress and is sued in his official capacity only. Defendant Gilbert Gude is the Director of the Congressional Research Service, and though the complaint is less than clear on this point, is apparently being sued in both his official and personal capacities. *fn1" The Library itself, an agency of the legislative branch of the federal government, see 2 U.S.C. §§ 131 et seq., is also a named defendant.

 A

 In September 1979, the Library and the Union negotiated a collective bargaining agreement, subject of course to the terms of the CSRA. With respect to regulations of the Library, such as the one regarding political activities of employees at issue here, the agreement imposes the obligation on the Library to bargain with the Union before modifying those regulations. Article IV, Section 3, B. *fn2" That obligation not to modify regulations prior to bargaining applies even to modification of existing practices and understandings that are not specifically articulated by the regulations. Thus, the agreement provides that "the parties agree to continue any existing and acknowledged . . . practices and understandings not specifically inconsistent with this Agreement unless a change is mutually agreeable to the Parties." Article IV, Section 4.

 For resolution of disputes that arise between the Library and its employees, the collective bargaining agreement establishes a negotiated grievance procedure in conformity with the directives of the CSRA. Aside from two relevant exceptions, the negotiated grievance procedure is the exclusive procedure for resolution of grievances. The agreement defines a grievance as

 
a complaint involving the violation of this Agreement, or the violation, or wrongful or improper interpretation of an LCR [Library of Congress Regulation] concerning personnel policies, practices, and conditions of employment. Such a grievance can be filed by the Association or by an affected employee.

 Article XXXI, Section 1, A. Thus, with respect to the regulations, if the Library violates or modifies any one of them or even one of the unwritten practices and understandings, then either the affected employee or the Union may raise the issue as a grievance under the negotiated grievance procedure.

 The first relevant exception to the negotiated grievance procedure is the exception created by the CSRA in section 7116(d), and incorporated in Article XXXI, Section 2, C, of the collective bargaining agreement. If the matter can be raised either as a negotiated grievance procedure or as an unfair labor practice, then the negotiated grievance procedure is not exclusive. The aggrieved party, at his election, can pursue either remedy, but not both.

 The second exception to this negotiated grievance procedure was created by the parties in their collective bargaining agreement. As they are entitled to do under the CSRA, see § 7121(a)(2), the Library and the Union decided to exclude from the negotiated grievance procedure those disputes stemming from adverse actions -- such as demotions or transfers -- instituted by the Library against an employee, and to create a separate contractual procedure for the processing of such actions. Article XXXII. For adverse actions, the agreement provides first for a recommended decision by an impartial management official appointed by the Director of the CRS, and then an appeal to a hearing officer to be selected by both parties.

 The hearing officer's decision under the agreement's adverse action process is final and binding, Article XXXII, Section 9, D; the agreement makes no provisions for review of the hearing officer's decision. This absence of agency and judicial review stands in marked contrast to the availability of such review under the other components of the scheme established by the agreement and the CSRA. For Library employees this contractual adverse action process serves as the substitute for the CSRA's statutory adverse action process with its provisions for review through the statutory appeals procedure by the MSPB and the courts.

 B.

 For federal employees in the executive branch, section 9 of the Hatch Act, 5 U.S.C. § 7324, sets forth the constraints on involvement in political activities. However, this is not true of employees of the Library of Congress. Such employees, by virtue of their status as legislative, not executive, employees, are not subject to the Hatch Act. Rather, the limitations on their involvement in political activities are contained in the Library's regulations.

 LCR 2023-7, in effect long before the negotiation of the collective bargaining agreement, provides in relevant part:

 
Section 3. Unrestricted Political Activities of Library Employees
 
A. All employees are free to engage in political activity to the widest extent consistent with the restrictions imposed by law and by this Regulation. Each employee retains the right to
 
* * * *
 
(5) Be a member of a political party or other political organization and participate in its activities to the extent consistent with law and to the extent that such membership does not interfere with official ...

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