Keeffe v. Library of Congress, 84-5464

• Decision Date: 03 December 1985
• Docket Number: No. 84-5464,84-5464
• Citation: 777 F.2d 1573
• Parties: Mary Ann KEEFFE, et al., Plaintiffs-Appellees, v. LIBRARY OF CONGRESS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1573

777 F.2d 1573

250 U.S.App.D.C. 117

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

No. 84-5464.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 20, 1985.

Decided Dec. 3, 1985.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 82-0291).

Stephen D. Keeffe, Washington, D.C., for plaintiffs-appellees.

Gregory S. Walden, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., William Kanter, Atty., Dept. of Justice, and Frank Mack, Office of Gen. Counsel, Library of Congress, Washington, D.C., were on brief, for defendants-appellants.

Before MIKVA and GINSBURG, Circuit Judges, and MARKEY, ^* Chief Judge of the United States Court of Appeals for the Federal Circuit.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

This appeal from the District Court raises important questions about the constitutionality of governmental limitations on a congressional employee's off-duty political activities. The Library of Congress seeks to prohibit those activities that it determines will pose a real or apparent conflict of interest with an employee's official duties. The District Court held that the Library of Congress' conflict-of-interest regulations, as interpreted and applied to Congressional Research Service ("CRS" or "the Service") Analysts, were unconstitutionally vague, and therefore declared them null and void. We find that the Library did not violate the Constitution or its enabling statutes when it promulgated a reasonable interpretation of its regulations for prospective application to all CRS analysts. We agree with the District Court, however, that the Library failed to provide plaintiff Keeffe with fair notice that it would apply its new interpretation to her participation at the Democratic National Convention in 1980. Its adverse action against Keeffe must therefore be invalidated. Accordingly, we affirm on different grounds the District Court's award of declaratory and injunctive relief.

I. BACKGROUND

A. The Congressional Research Service

The defendant, the Library of Congress, is a congressional agency. See 2 U.S.C. Sec. 171(1) (1982). The Library is divided into departments, and the Congressional Research Service is one of these departments. 2 U.S.C. Sec. 166(a). CRS' mandate is to "advise and assist" congressional committees in the analysis, appraisal, and evaluation of legislative proposals and recommendations submitted by the executive branch. The CRS is charged with performing these duties "without partisan bias." 2 U.S.C. Sec. 166(d)(1). In practice, the Service's work brings it into contact with Congress in many different ways:

The Service makes [its] research available, without partisan bias, in many forms including studies, reports, compilations, digests, and background briefings. Upon request, CRS assists committees in analyzing legislative proposals and issues, and in assessing the possible effects of these proposals and their alternatives. The Service's senior specialists and subject analysts are also available for personal consultations in their respective fields of expertise.

C. Goodrum, Your Work in the Congressional Research Service: An Introductory Operating Manual i-a (1977). Memoranda prepared by Analysts for congressional clients bear the name of their author. Id. at 10.

B. Mary Ann Keeffe's Political Activities and The Library's Actions

1. Administrative adoption of Hatch Act regulations. When Keeffe became an employee of the Library of Congress in 1967, the Library regulated the outside activities of its employees through administrative adoption of the Hatch Act scheme of regulations. The Hatch Act, now codified at 5 U.S.C. Sec. 7324 (1982), by its terms is limited to executive branch employees. The Act provides that these employees "may not take an active part in ... political campaigns." Congress has extended the coverage of the Hatch Act to agencies not specifically covered by the terms of the Act. See, e.g., American Postal Workers Union, AFL-CIO v. United States Postal Service, 764 F.2d 858, 862 n. 13 (D.C.Cir.1985) (Hatch Act and its regulations made applicable to Postal Service by 39 U.S.C. Sec. 410(b)(1) (1982) and 5 C.F.R. Sec. 733.31 (1984)).

2. Promulgation of LCR 2023-7. Keeffe became an Analyst in 1972. She and other employees of the Library are represented by the Congressional Research Employees Association (CREA), one of the plaintiffs-appellees. In June of that year, the Library issued Library of Congress Regulation (LCR) 2023-7, which replaced the scheme modeled on the Hatch Act and now regulates the political activity of Library employees. The regulations are far from ideal in their clarity, and the interaction of their various provisions is an imperfect example of the legal mind at work. The regulation entitled "Unrestricted Political Activities of Library Employees" recognizes the right of Library employees "to engage in political activity to the widest extent consistent with the restrictions imposed by law and by this Regulation." LCR 2023-7, Section 3(A). Under this umbrella-like authorization, the Library has provided a non-exclusive list of unofficial activities in which employees may participate. These include the right to:

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 duties or give the appearance of a conflict of interest.

Id. at section 3(A)(5). Employees also have the right to attend a "political convention, rally, fund-raising function; or other political gathering," id. at section 3(A)(6), and to "[s]erve as a delegate to a political or constitutional convention, so long as such service does not interfere with the time and attention required as a Library employee." Id. at section 3(A)(11).

As section 3(A) provides, however, each of these activities is subject to the qualification in section 3(B). This section allows the Library to restrict political activity that would create a real or apparent conflict of interest:

Paragraph A. of this section does not imply or authorize an employee to engage in political activity in violation of law, while on duty, or while in a uniform that identifies him as an employee. The Library may prohibit or limit the participation of an employee or class of employees in an activity recognized by Paragraph A. of this section, if participation in the activity would interfere with the efficient performance of official duties, or create a conflict or apparent conflict of interests.

Id. at section 3(B). The Library's regulations are implemented by its General Counsel, who is charged with providing authoritative advice and interpretations of conflict-of-interest questions. See LCR 2023-8, section 1. The General Counsel is also responsible for recommending disciplinary or remedial action, if necessary, to the Librarian. Id. at section 4.

3. The Summer of 1980. In June, 1980, Library officials learned that Keeffe was a prospective delegate-at-large to the 1980 Democratic National Convention in New York City, and advised her that this activity presented a potential conflict of interest with her official duty to render non-partisan advice. The Library requested a memorandum of facts from her before taking further appropriate action. On July 7, the plaintiff advised the Chief of her Division, Dr. Leon Cole, that her status as a delegate-at-large had been challenged within the party apparatus and was still unconfirmed. Cole replied by memorandum on July 17 that the attendance of CRS employees as delegates at political conventions was subject to the restrictions of the Library's conflict-of-interest regulation. Cole stated that Keeffe's intended participation at the Convention was subject to review and approval by the Library. Cole also requested a written explanation from Keeffe of the possible conflict or appearance of a conflict of interest. On August 5, Keeffe challenged the view that her attendance at the Convention would cause any conflict.

Percolating upwards, the matter soon came to the attention of co-defendant Gilbert Gude, the Director of CRS. On August 7, Gude requested the General Counsel's opinion on the propriety of the plaintiff's attendance at the Convention. The next day, the Office of the General Counsel opined that Keeffe's participation as a delegate could give rise to an actual conflict of interest and would in any event generate an apparent conflict of interest. The opinion referred to the importance of congressional confidence in the impartiality of the services performed by CRS Analysts. The opinion observed that a delegate has an interest in the success of the convention's candidate or party platform. Since an Analyst's work for CRS identifies the Analyst by name, the opinion concluded that congressional clients might have misgivings about whether Keeffe's work was biased or otherwise influenced by political considerations.

Keeffe was not at work when this opinion issued; her annual leave period had begun. Cole, her Division Chief, attempted to contact her by telephoning her home. Keeffe was not there, and Cole recited a message to her Portuguese housekeeper. Cole said that Keeffe's attendance at the convention would generate a conflict of interest and might subject her to disciplinary action. The housekeeper, who was not fluent in English, had her ten-year-old daughter take the message from Cole. Keeffe received the message verbally from the housekeeper's daughter. Despite this message, Keeffe attended the Democratic Convention, which began on August 10.

4. Disciplinary Proceedings. After the Convention, Keeffe returned to the Library at the end of her vacation. Her supervisor directed her not to perform some of the duties ...