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AFSCME LOCAL 2477 v. BILLINGTON

May 1, 1990

AFSCME LOCAL 2477, et al., Plaintiffs,
v.
JAMES H. BILLINGTON, in his official capacity as Librarian of Congress, Defendant



The opinion of the court was delivered by: GASCH

 OLIVER GASCH, UNITED STATES DISTRICT JUDGE

 In this action plaintiffs challenge a Library of Congress regulation that permits Library of Congress employees, under certain emergency circumstances, to be placed on enforced leave or suspension from work without a prior administrative hearing. Plaintiffs allege that this regulation violates fifth amendment procedural due process and the first amendment. Before the Court are the parties' cross-motions for summary judgment. Upon consideration of the parties' positions and the relevant law, the Court concludes that the regulation is valid under both the fifth and first amendments. Accordingly, the Court grants summary judgment for defendant.

 I. BACKGROUND

 Plaintiffs are the American Federation of State, County and Municipal Employees ("AFSCME") Local 2477, a labor organization representing non-professional employees at the Library of Congress, and AFSCME Local 2910, a labor organization representing the Library's professional employees. Defendant James Billington is the Librarian of Congress, sued solely in his official capacity.

 At issue is Library of Congress Regulation 2020-5 ("LCR 2020-5"), entitled "Enforced Leave and Suspension," which establishes the Library's policy for placing a staff member on enforced leave in "emergency situations." The regulation states, in relevant part:

 
A. In certain emergency situations requiring prompt action, a staff member may be placed on administrative leave not to exceed five work days, followed by enforced annual or sick leave as appropriate or, in the absence of annual or sick leave, on suspension. . . .
 
B. Emergency situations exist, and action under this Section may be taken when circumstances are such that the retention of the staff member in an active duty status may result in
 
(1) injury to the staff member, other staff members, or the general public;
 
(2) acts or behavior, caused by illness or misconduct, which may be detrimental to the Library's operations, the interest of Government, or the staff member;
 
(3) damage to Library property.

 LCR 2020-5 §§ 2A, 2B, attached at Exhibit A to Defendant's Motion for Summary Judgment.

 In practice, when a supervisor concludes that action under this regulation is warranted, a Library employee may be placed on administrative leave for up to five days, with no reduction in salary. Thereafter, the employee may be placed on enforced annual or sick leave, as appropriate. If the employee has no accumulated annual or sick leave, he may be suspended without pay. The employee remains on leave until the Library can determine either that the employee is ready, willing, and able to resume work, or that the employee's presence no longer constitutes a danger to the Library or its staff. Deposition of Leonard Scott ("Scott Depo.") at 11-12, 19-21.

 Since plaintiffs claim that the procedures outlined in LCR 2020-5 are unconstitutional, it is necessary to describe those procedures in some detail. By the terms of the regulation, an employee's supervisor, after consultation with the Office of the Counsel for Personnel, may immediately place an employee on administrative leave upon finding that an emergency situation exists. LCR 2020-5 § 3B. No prior hearing is required. Shortly thereafter, a letter is written to the employee by the Director of Personnel. See id. § 4B. The letter describes 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. *fn1"

 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 ...


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