the incident or conduct precipitating the enforced leave, and informs the employee of the beginning and ending dates of his administrative leave and of the proposed action in his case. The letter also informs the employee of his opportunity to reply in writing to the proposed action, his right to retain the assistance of a representative, and his right to appeal should the proposed action be approved. Finally, the letter apprises the employee of whether he has been barred from entering the Library unless accompanied by security personnel. See id. Due to time constraints, the letter is usually read to the employee over the phone by his second day of administrative leave. During the phone conversation, the employee is given an opportunity to present his side of the story. Scott Depo. 11-12, 18.
By the second or third day of the employee's administrative leave, a meeting is held by Library officials to discuss the matter. Statements from witnesses are received and the employee's explanation of the incident, if any, is considered. Id. at 13-14. Within the five-day period of administrative leave, the Director of Personnel decides whether continued suspension from work is appropriate. If the Director determines that continued suspension is not appropriate, the employee resumes his job. Id.
If the Director determines that continued suspension is appropriate -- because the Director finds that one of the harms identified in the regulation would likely recur should the employee return to work -- the employee is placed on enforced leave. In that case, a second letter to the employee is prepared, informing him of this action and of his right to appeal within 10 days of his receipt of the letter. See LCR 2020-5 § 4D. Thereafter, the Library's senior staff relations specialist, Leonard Scott, conducts an investigation of the matter to determine whether disciplinary measures are warranted under the circumstances, and reports his findings and recommendations to the Director of Personnel. See id. § 4C. Any disciplinary measures that follow are distinct from the proceedings under LCR 2020-5, and are subject to the full evidentiary hearing requirements of LCR 2020-3 ("Policies and Procedures Governing Adverse Actions"), attached at Exhibit E to Defendant's Motion for Summary Judgment.
If the employee decides to appeal the decision placing him on enforced leave, a hearing before a senior Library official is conducted within 30 days of receiving the employee's notice of appeal. LCR 2020-5 § 4D. The hearing is not an on-the-record proceeding. However, the affected employee is entitled to be accompanied by counsel or other representative. A written decision is issued shortly after the hearing, usually within two weeks. There is no formal avenue of appeal from this decision, short of a challenge in federal court.
A. Procedural Due Process
Plaintiffs allege that LCR 2020-5 provides inadequate procedures in violation of fifth amendment due process. Complaint paras. 15-18. The gravamen of plaintiffs' complaint is that LCR 2020-5 violates the fifth amendment because it provides an employee with no opportunity for a full evidentiary hearing either prior to or after being placed on enforced administrative leave.
The framework for due process analysis in cases such as this is well settled. The analysis involves a two-pronged inquiry. First, the Court must determine whether due process applies at all -- that is, whether the deprivation of "life, liberty, or property" is at stake. Second, the Court must determine whether the procedures provided are constitutionally adequate. This determination is made by weighing (1) the nature of the interest affected, (2) the risk of an erroneous deprivation of that interest through the procedures in place, and (3) the fiscal and administrative burdens that might be encountered should more elaborate procedures be required. Goldberg v. Kelly, 397 U.S. 254, 262-63, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970); Mathews v. Eldridge, 424 U.S. 319, 334-35, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 321, 87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985).
For the purposes of this action, the parties do not dispute that Library of Congress employees have a property interest in their employment. Accordingly, due process guarantees apply. See Board of Regents v. Roth, 408 U.S. 564, 576-78, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); De Sarno v. Department of Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985). The only issue raised herein is whether the procedures outlined in LCR 2020-5 comport with due process.
In arguing that they do not, plaintiffs rely on Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985), in which the Supreme Court held that a public employee, prior to his termination, is constitutionally entitled to "some kind of hearing." The Court set forth the process due as follows:
The essential requirements of due process . . . are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. . . .