McGOWAN, Circuit Judge:
Appellant, an applicant for federal employment who has passed the competitive examinations, is before us for the second time in his effort to set aside a disqualification imposed upon him by the Civil Service Commission. In Scott v. Macy, 121 U.S.App.D.C. 205, 349 F.2d 182 (1965), we reviewed the Commission’s debarment of appellant from all employment in the federal service “because of immoral conduct.”1 A majority of the court were of the view that this action [645]*645could not be sustained upon the record before us, and we directed that a judgment be entered which would have the effect of restoring appellant to the status of one eligible to be considered for federal employment, absent any further valid action by the Commission to accomplish his absolute disqualification. The Commission has purported to take such further action, but, for the reasons appearing hereinafter, we find it unavailing.
I
Appellant’s initial disqualification “because of immoral conduct” was founded upon a 1947 arrest for “loitering,” a 1951 arrest “for investigation,” and undisclosed “information indicating that yoy are a homosexual.” Not long after our decision, appellant was confronted with a Civil Service Commission investigation report which set forth (1) the 1947 arrest, (2) the 1951 arrest, (3) statements alleged to have been made by appellant to a former supervisor when he was in state employment that he was a homosexual, that he had been “perverted” since youth, and that he lived with a “lover,” and (4) that appellant had stood mute when a neighbor had characterized him as a homosexual. Upon the basis of these four matters, appellant was asked the question: “In view of the information which has been cited above, do you now deny that you have engaged in homosexual acts ? ”
Appellant made a detailed response in writing. He set forth at length the circumstances of the 1947 and 1951 arrests, denying any homosexual acts or purposes in connection therewith and pointing out that no prosecutions had resulted from these arrests. He denied that he had ever characterized himself to his former supervisor as “perverted” or as having had a “lover.” He asserted that, in the case of the neighbor’s characterization of him as a homosexual, he had felt no obligation under the circumstances to respond. In respect of the final question as to whether he now denied ever having engaged in homosexual acts, appellant challenged the Commission's right to ask it for various reasons, including invasion of a right to privacy, and a lack of relationship between the question and fitness to perform work.
Upon this investigation report and appellant’s response to it, the Commission made a second determination of disqualification. The basic adjudication is in the form of a letter dated March 11, 1966, to appellant from the Chief of the Division of Adjudication, the critical portion of which is set forth in the margin.2 Ap[646]*646pellant appealed this ruling within the Commission. At the first intra-agency appellate level, a letter from the Diredtor of the Bureau of Personnel Investigations advised that “[t]he derogatory information obtained during the investigation which was communicated to you for rebuttal, explanation, or clarification, has not been adequately resolved by any information furnished by you or your counsel so as to enable me to make a finding that you are suitable.” Further appeals to the Commission’s Board of Appeals and Review, and to the Commission itself, resulted in affirmances stated generally in terms of the apparent absence of grounds for overturning the decision of the Bureau of Personnel Investigations.
In the District Court appellant moved to enforce the mandate of the judgment resulting from our first decision, and asked for an order directing the Commission not to disqualify appellant “for immoral conduct.” The Government filed an opposition to this motion (together with a cross-motion for affirmance) which stated that the Commission had made a new determination that “it cannot conclude that [appellant] meets the prescribed suitability and fitness standards” for the federal service, and that this determination was not in conflict with the earlier mandate. It attached certain exhibits to this opposition, one of which it characterized as the “CSC statement of February 25, 1966 in respect of the unsuitability or unfitness for Government employment of persons who have engaged in homosexual acts.” 3 By agreement at the hearing of the motion and cross-motion, appellant orally amended his original complaint by adding a second cause of action directed against the Commission’s renewed determination of disqualification, and both parties orally moved for summary judgment with respect to it.
The District Court denied appellant’s motion to enforce the mandate, and granted appellees’ motion for summary judgment. In announcing its decision, the District Court first stated that “this Court holds that the Government has a right to consider a person who actively engages in homosexuality as unfit for Federal employment.” It went on to hold, further, that “the replies of [appellant] to the first four of the items * * * plus the fact that [appellant] simply refused to answer outright [the last question], justified the Government in finding that [appellant] was not fit for employment by the Government.” 4
II
In this court appellant urged that he had for a second time been disqualified “because of immoral conduct,” and that the Commission’s action in this respect continued to be defective. The Government, however, insisted that this was a [647]*647misconception of the Commission’s action, and that what had actually happened the second time around was that appellant had been disqualified solely under those provisions of the rules and regulations addressed to the refusal to give testimony.5 In defending the Commission’s action, the Government disclaimed any reliance whatsoever upon the authority to disqualify “because of immoral conduct,” and insisted that the Commission must be judged solely by reference to the basis for its second determination and not to that which underlay its first.
This latter formulation reflects a correct principle of administrative review, and we agree with it.6 There is, of course, another accepted principle in this field to the effect that an agency’s action must be judicially sustained upon the reason for which it acts, and not by reference to one upon which it might have acted.7 And we are unable to say that the Commission acted for the reason assigned by Government counsel on this appeal. The key document is the letter to appellant of March 11, 1966, from the Chief of the Division of Adjudication, the critical language of which appears supra note 2. We note that the only ground of disqualification therein expressly cited and quoted is subparagraph (b) of 5 C.F.R. § 731.021 — the “immoral conduct” ground which was the sole basis of appellant’s earlier disqualification. There is no reference to subparagraph (d) of that same regulation (supra
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McGOWAN, Circuit Judge:
Appellant, an applicant for federal employment who has passed the competitive examinations, is before us for the second time in his effort to set aside a disqualification imposed upon him by the Civil Service Commission. In Scott v. Macy, 121 U.S.App.D.C. 205, 349 F.2d 182 (1965), we reviewed the Commission’s debarment of appellant from all employment in the federal service “because of immoral conduct.”1 A majority of the court were of the view that this action [645]*645could not be sustained upon the record before us, and we directed that a judgment be entered which would have the effect of restoring appellant to the status of one eligible to be considered for federal employment, absent any further valid action by the Commission to accomplish his absolute disqualification. The Commission has purported to take such further action, but, for the reasons appearing hereinafter, we find it unavailing.
I
Appellant’s initial disqualification “because of immoral conduct” was founded upon a 1947 arrest for “loitering,” a 1951 arrest “for investigation,” and undisclosed “information indicating that yoy are a homosexual.” Not long after our decision, appellant was confronted with a Civil Service Commission investigation report which set forth (1) the 1947 arrest, (2) the 1951 arrest, (3) statements alleged to have been made by appellant to a former supervisor when he was in state employment that he was a homosexual, that he had been “perverted” since youth, and that he lived with a “lover,” and (4) that appellant had stood mute when a neighbor had characterized him as a homosexual. Upon the basis of these four matters, appellant was asked the question: “In view of the information which has been cited above, do you now deny that you have engaged in homosexual acts ? ”
Appellant made a detailed response in writing. He set forth at length the circumstances of the 1947 and 1951 arrests, denying any homosexual acts or purposes in connection therewith and pointing out that no prosecutions had resulted from these arrests. He denied that he had ever characterized himself to his former supervisor as “perverted” or as having had a “lover.” He asserted that, in the case of the neighbor’s characterization of him as a homosexual, he had felt no obligation under the circumstances to respond. In respect of the final question as to whether he now denied ever having engaged in homosexual acts, appellant challenged the Commission's right to ask it for various reasons, including invasion of a right to privacy, and a lack of relationship between the question and fitness to perform work.
Upon this investigation report and appellant’s response to it, the Commission made a second determination of disqualification. The basic adjudication is in the form of a letter dated March 11, 1966, to appellant from the Chief of the Division of Adjudication, the critical portion of which is set forth in the margin.2 Ap[646]*646pellant appealed this ruling within the Commission. At the first intra-agency appellate level, a letter from the Diredtor of the Bureau of Personnel Investigations advised that “[t]he derogatory information obtained during the investigation which was communicated to you for rebuttal, explanation, or clarification, has not been adequately resolved by any information furnished by you or your counsel so as to enable me to make a finding that you are suitable.” Further appeals to the Commission’s Board of Appeals and Review, and to the Commission itself, resulted in affirmances stated generally in terms of the apparent absence of grounds for overturning the decision of the Bureau of Personnel Investigations.
In the District Court appellant moved to enforce the mandate of the judgment resulting from our first decision, and asked for an order directing the Commission not to disqualify appellant “for immoral conduct.” The Government filed an opposition to this motion (together with a cross-motion for affirmance) which stated that the Commission had made a new determination that “it cannot conclude that [appellant] meets the prescribed suitability and fitness standards” for the federal service, and that this determination was not in conflict with the earlier mandate. It attached certain exhibits to this opposition, one of which it characterized as the “CSC statement of February 25, 1966 in respect of the unsuitability or unfitness for Government employment of persons who have engaged in homosexual acts.” 3 By agreement at the hearing of the motion and cross-motion, appellant orally amended his original complaint by adding a second cause of action directed against the Commission’s renewed determination of disqualification, and both parties orally moved for summary judgment with respect to it.
The District Court denied appellant’s motion to enforce the mandate, and granted appellees’ motion for summary judgment. In announcing its decision, the District Court first stated that “this Court holds that the Government has a right to consider a person who actively engages in homosexuality as unfit for Federal employment.” It went on to hold, further, that “the replies of [appellant] to the first four of the items * * * plus the fact that [appellant] simply refused to answer outright [the last question], justified the Government in finding that [appellant] was not fit for employment by the Government.” 4
II
In this court appellant urged that he had for a second time been disqualified “because of immoral conduct,” and that the Commission’s action in this respect continued to be defective. The Government, however, insisted that this was a [647]*647misconception of the Commission’s action, and that what had actually happened the second time around was that appellant had been disqualified solely under those provisions of the rules and regulations addressed to the refusal to give testimony.5 In defending the Commission’s action, the Government disclaimed any reliance whatsoever upon the authority to disqualify “because of immoral conduct,” and insisted that the Commission must be judged solely by reference to the basis for its second determination and not to that which underlay its first.
This latter formulation reflects a correct principle of administrative review, and we agree with it.6 There is, of course, another accepted principle in this field to the effect that an agency’s action must be judicially sustained upon the reason for which it acts, and not by reference to one upon which it might have acted.7 And we are unable to say that the Commission acted for the reason assigned by Government counsel on this appeal. The key document is the letter to appellant of March 11, 1966, from the Chief of the Division of Adjudication, the critical language of which appears supra note 2. We note that the only ground of disqualification therein expressly cited and quoted is subparagraph (b) of 5 C.F.R. § 731.021 — the “immoral conduct” ground which was the sole basis of appellant’s earlier disqualification. There is no reference to subparagraph (d) of that same regulation (supra note 5), which provides an independent and alternative ground of disqualification for refusal to furnish testimony, and which is the ground the Government now argues was the sole ground upon which the Commission acted.
The language of the letter is needlessly imprecise, certainly by contrast with the ease with which it could have been made crystal clear that, without reference to the “immoral conduct” ground of sub-paragraph (b), appellant was being disqualified under the explicit authority of subparagraph (d), not because he was believed to have been guilty of “immoral conduct” but because he would not supply information. The letter does refer to appellant’s refusal to answer the final question but, in the context, we are quite [648]*648unable to say with the requisite assurance that this was the exclusive foundation of Appellant’s disqualification. It seems to us just as likely, if not more so, that the Bureau of Investigations determined that its enlarged investigation report warranted a renewal of the earlier finding that appellant should be disqualified “because of immoral conduct.” How else can there be a meaningful explanation of the inclusion of subparagraph (b) and the exclusion of subparagraph (d) in a formal adjudication even though we are now told by counsel after the fact that only the omitted ground was the motivation of the decision?
The Government insists that we measure the Commission’s action solely by reference to the uncited subparagraph (d). We are unable to conclude, however, that the Commission’s decision did not in fact rest upon a finding of “immoral conduct.” Therefore, the current disqualification cannot stand.8 Where individual rights of substance turn upon whether the Commission acted for one reason rather than another, we think it not too much to expect that the Commission will not leave its motivations clouded by inexactitude of expression. Civil service investigators are doubtless not unlike the rest of us in being slow to relinquish a conviction of the correctness of an action once taken for the reason it was taken. If a wholly new and different reason is to become the mainspring of the action, that should be made clearly to appear — and the resources of language are fully up to this task. Thus, this appeal must terminate as did the former one, i. e., the grant of summary judgment is reversed, and a judgment should be entered “which has the effect of restoring appellant to his original status, that is to say, one who has met the competitive examination requirements for certain grade levels and who, absent any further action by the Civil Service Commission to disqualify him, is eligible to be considered for employment by the employing agencies.” 9
In reaching this result on the record before us, we decide nothing with respect to the scope of the Commission’s authority to disqualify under subparagraph (d), as distinct from subparagraph (b). One seeking employment with the federal government may well be placed under greater obligation to communicate information about himself than one who is not. But it may also be true that federal applicants for employment do not, wholly apart from Fifth Amendment concerns, forfeit all rights of privacy accorded to persons generally by the First Amendment, and that the reasonableness of requiring answers to certain questions may be greatly affected by the clarity and rationality of the policies sought to be effectuated by the questions. Where disclosure is required of circumstances of an intensely private and personal nature, the discloser is arguably entitled to know the standards by which his revelations will be assessed.
The Government’s Exhibit B in the District Court purports to be a statement of those standards. Although it is in form a letter from the Commission to a private organization, its offer in evidence [649]*649by the Government indicates that it may be considered to be an authoritative expression of Commission policy. In this area, of course, the Commission is dealing with an issue as difficult as it is delicate, and precision in communication is correspondingly hard to achieve. Doubtless because of this fact, the statement has its full share of seeming anomalies and contradictions.
In it the Commission first describes its official policy to be that persons “about whom there is evidence that they have engaged in or solicited others to engage in homosexual or sexually perverted acts with them, without evidence of rehabilitation, are not suitable for federal employment.” This would appear to mean that any homosexual act or solicitation is disqualifying, except as one has abandoned the practice entirely at some time in the past. The Commission goes on, however, to say that it is concerned only with conduct, not tendencies, and in appraising conduct it recites a number of pertinent considerations, including “the total impact of the applicant upon the job,” which seems in some degree at least consistent not only with past but also with present and continuing homosexual acts. This is followed by a stern reminder that such acts, even though wholly private in nature, are contrary to the criminal laws in virtually all jurisdictions, and that, of necessity therefore, they must be considered to be “immoral conduct.” Under this last, it would appear that the only relevant consideration, as contrasted with those which have just been enumerated, is whether an applicant has been or is now committing homosexual acts.10 The Commission then is at some pains to deny that it either does, or can, inquire into private sexual conduct. In its words, “[a]s long as it remains truly private, that is, it remains undisclosed to all but the participants, it is not the subject of an inquiry.” But where for some reason it attracts public notice, the Commission will ask, and presumably will disqualify, if either there is a refusal to respond or an admission of a homosexual act. Qualification for federal employment thus appears to turn not upon whether one is a law violator but whether one gets caught.
We do not mean to minimize the difficulties which the Commission confronts in this area, including those which are unnecessarily manufactured for it by inflexibilities on all sides. It is functioning in a field where public policy is in something of a state of flux, with old certainties dissolving and new ones unformed. We are not disposed to compound its problems unnecessarily nor to foreclose reasonable inquiry by it, but we do note the importance and relevance of a clear policy line to the demarcation of appropriate disclosure requirements.
The judgment of the District Court is reversed, and the case is remanded for the entry of a judgment in accordance with this opinion.
It is so ordered.