Bruce C. Scott v. John W. MacY Jr., Chairman, United States Civil Service Commission

349 F.2d 182, 121 U.S. App. D.C. 205, 1965 U.S. App. LEXIS 5238

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 16, 1965
• Docket: 18483
• Status: Published

Opinions

BAZELON, Chief Judge.

Following competitive examinations for Federal civil service employment, appellant was notified in February 1962 that he had qualified for “personnel positions” at grade levels GS-9, 11 and 12, subject to further investigation. In April 1962, he appeared before a Civil Service investigator, who requested explanation regarding a 1947 arrest for “loitering,” a 1951 arrest “for investigation,” and “information [in the Civil Service Commission’s possession] indicating that you are a homosexual.” Appellant explained the circumstances of the 1947 arrest,¹ stated that he was “not specifically charged with a law violation” in 1951, and refused to comment on the alleged homosexuality because he did “not believe the Question is pertinent in so far as job performance is concerned.”

On May 16,1962, the Commission “disqualified [appellant] for employment in the competitive service because of immoral conduct.”² He then requested a “specification of how, when and where [he had allegedly] conducted [himself] immorally so that [he] may adequately answer the broad, indefinite allegation of ‘immoral conduct’ * * ³ The Com-

mission’s Board of Appeals and Review responded only that “the record disclosed convincing evidence that you have engaged in homosexual conduct, which is considered contrary to generally-recognized and accepted standards of morality. * * * ” After exhausting his administrative remedies, appellant unsuccessfully attacked the Commission’s action in the District Court. This appeal followed.

Appellant has standing to challenge his exclusion from public employment. The Government’s contrary argument is that “there is no basic right to public employment; stated another way, the power of appointment — absent statute or regulation — is exclusively within the prerogative of the Executive.” ⁴ The argument is too broad. “[I]t does not at all follow that because the Constitution does not guarantee a right to public employment, [the Government] may resort to any scheme for keeping people out of such employment. Law cannot reach every discrimination in practice. But doubtless unreasonable discrimination * * * would not survive constitutional challenge.”⁵ As this court has said, “One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law.” ⁶

Appellant is an applicant for public employment, and thus may have less statutory protection against exclusion than an employee.⁷ But he is not without constitutional protection.⁸ The Constitution does not distinguish between applicants and employees; both are entitled, like other people, to equal protection against arbitrary or discriminatory treatment by the Government. The Executive may have discretion in hiring or firing, but “ [discretionary power does not carry with it the right to its arbitrary exercise.” Shachtman v. Dulles, 96 U.S.App. D.C. 287, 290, 225 F.2d 938, 941 (1955).

The Commission excluded appellant from public employment because it con-eluded that he had engaged in “immoral conduct.” ⁹ With this stigma, the Commission not only disqualified him from the vast field of all employment dominated by the Government¹⁰ but also jeopardized his ability to find employment elsewhere. The stigmatizing conclusion was supported only by statements that appellant was a “homosexual” and had engaged in “homosexual conduct.”¹¹ These terms have different meanings for different people.¹² They therefore require some specification¹³ The Commission must at least specify the conduct it finds “immoral”¹⁴ and state why that conduct related to “occupational competence or fitness,”¹⁵ especially since the Commission’s action involved the gravest consequences. Appellant’s right to be free from governmental defamation requires that the Government justify the necessity for imposing the stigma of disqualification for “immoral conduct.” ¹⁶

The Commission may not rely on a determination of “immoral conduct,” based only on such vague labels as “homosexual” and “homosexual conduct,” as a ground for disqualifying appellant for Government employment. For this reason, and for the reasons stated in Judge McGowan’s separate opinion, we reverse the judgment of the District Court and remand the case with instructions to enter summary judgment for appellant. In my view, this does not preclude the Commission from excluding appellant from eligibility for employment for some ground other than the vague finding of “immoral conduct” here.¹⁷

1 . Appellant’s explanation was as follows:

“At Lafayette Square Men’s Room, I was picked up by a police officer. After asking questions I would not answer, he had me charged with lortering [sic.] There was a man in the Men’s Room who was behaving in an odd manner. I found I was unable to urinate and stepped outside to wait for him to come out. I went back in about ten minutes later and this fellow was still in the Men’s Room in the same odd position (leaning over the urinal with his hand propped against the wall). The Police officer followed me in and when I was leaving he said he wanted to talk with me.”

2 . The Commission relied on Civil Service Regulations, 5 C.F.R. § 2.106 (1961 ed.):

“Disqualifications of applicants.

“(a) Grounds for disqualification.

An applicant may be denied examination and an eligible may be denied appointment for any of the following reasons:

* * * * #

“(3) Criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct;”

3 . Judge McGowan’s opinion clearly shows that appellant did not abandon this request either before the Commission or this court.

4 . Brief for appellee, p. 6.

5 . Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 725, 71 S.Ct. 909, 915, 95 L.Ed. 1317 (1951) (concurring opinion). See Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961).

6 . Homer v. Richmond, 110 U.S.App.D.C. 226, 229, 292 F.2d 719, 722 (1961).

7 . See, e.g., 5 U.S.C. § 652 (1958), regarding procedural requirements for removal or suspension from classified civil service; 5 C.F.R. § 731.302(a), that after one year, an appointee may be removed for reasons which would originally have disqualified him from appointment “only on the basis of intentional false statement or deception or fraud in examination or appointment.”

8 . See Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); In re Summers, 325 U.S. 561, 571, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945) ; United Public Workers of America v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Hunter v. McLaughlin, 102 U.S.App.D.C. 293, 252 F.2d 857 (1958); Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). In Joint Anti-Fascist Refugee Committee v. McGrath, Mr. Justice Jackson, concurring, stated: “The fact that one may not have a legal right to get or keep a government post does not mean that he can be adjudged ineligible illegally. Perkins v. Elg [307 U.S. 325, 349, 59 S.Ct. 884, 83 L.Ed. 1320].” 341 U.S. 123, 185, 71 S.Ct. 624, 655, 95 L.Ed. 817 (1951).

9 . It is not necessary to decide whether the Commission may exclude an applicant for public employment without giving reasons since a reason was given; thus we must face the issue of the sufficiency of that reason. Compare, e.g., Perkins v. Elg, supra, note 8; Shachtman v. Dulles, 96 U.S.App.D.C. 287, 225 F.2d 938 (1955).

10 . Compare, e.g., Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).

11 . Appellant’s 1947 and 1951 arrests for “loitering” and “investigation” in no way establish ‘immoral conduct” Even assuming that conduct considered immoral by the police was involved in the arrests, it does not appear that convictions, or even forfeiture of collateral, followed. Compare Pelicone v. Hodges, 116 U.S. App.D.C. 32, 320 F.2d 754 (1963).

12 . The Senate Subcommittee which investigated “Employment of Homosexuals and Other Sex Perverts in Government,” stated:

“It was determined that even among the experts there existed considerable difference of opinion concerning the many facets of homosexuality and other forms of sex perversion. Even the terms ‘sex pervert’ and ‘homosexual’ are given different connotations by the medical and psychiatric experts. [S. Doe. No. 241, 81st Cong., 2d Sess. 2 (1950).]

Compare Thompson, Changing Concepts of Homosexuality in Psychoanalysis, 10 Psychiatry: Journal op the Biology and Pathology op Interpersonal Relations 183 (1947):

“The term ‘homosexual’ as used in psychoanalysis has come to be a kind of wastebasket into which are dumped all forms of relationships with one’s own sex. The word may be applied to activities, attitudes, feelings, thoughts, or repression of any of these. In short, anything which pertains in any way to a relationship, hostile or friendly, to a member of one’s own sex may be termed homosexual.”

See generally Donnelly, Goldstein & Schwartz, Criminal Law 137-201 (1962).

13 . Unlike the present case, specific immoral acts were clearly alleged and admitted in Dew v. Halaby, 115 U.S.App. D.C. 171, 317 F.2d 582 (1963), cert. dismissed pursuant to Rule 60 of the Supreme Court rules, after settlement by agreement of the parties, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 550 (1964). Dew was discharged as a Federal Aviation Agency control tower operator because of “at least four [admitted] unnatural sex acts with males, some of them for pay” and “smoking marijuana cigarettes on at least five [admitted] occasions.” 115 U.S.App.D.C. at 172, 317 . The court found an agency judgment that “efficiency will not be promoted by * * * [an employee whose] past did not demonstrate qualities of character, stability, and responsibility,” 115 U.S.App.D.C. at 177, 317 F.2d at 588, in view of the “exacting nature of the duties and responsibilities of control tower operators.” 115 U.S.App.D.C. at 176 n. 11, 317 F.2d at 587 n. 11.

14 . Precise allegations of the conduct in question would also give an applicant an opportunity, not afforded in this case, to explain or contradict the allegations. There is no suggestion in this record that specific allegations of misconduct were withheld to protect confidential informants, and we need not decide whether such purpose might justify the Commission’s refusal to give details of alleged misconduct. Cases involving security dismissals based on undisclosed information, such as Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 (1950), affirmed, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352 (1951), are not applicable here.

15 . Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). In that case, a state requirement that teacher applicants disclose all association memberships was set aside because the state had failed to show the legitimate relationship of such disclosure to occupational qualifications sufficiently to justify the resulting inhabition of associational freedom. In United Public Workers of America v. Mitchell, 330 U.S. 75, 101, 67 S.Ct. 556, 570, 91 L.Ed. 754 (1947), the Court stated, “For regulation of employees it is * * * necessary that the act regulated be * * * reasonably deemed * * * to interfere with the efficiency of the public service.” See Vitarelli v. Seaton, 359 U.S. 535, 542-543 & n. 5, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 238-239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Reich, The Neio Property, 73 Yale L.J. 733, 782 (1964).

16 . Compare Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951); Shelton v. Tucker, supra, note 13; Bland v. Connally, 110 U.S.App.D.C. 375, 293 F.2d 852 (1961); Cf. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 898-899, 81 S.Ct. 1743, 6 L.Ed. 2d 1230 (1961).

17 . See Perkins v. Elg, 307 U.S. 325, 350, 59 S.Ct. 884, 83 L.Ed. 1320 (1939).