Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality
An A ssistant United States Attorney (AUSA), a federal employee in the “excepted” service, may not be term inated solely on the basis o f his hom osexuality, in the absence of a reasonable show ing that his homosexuality h a s adversely affected his jo b performance.
The burden would be on the Department of Justice to demonstrate a nexus between the AUSA’s hom osexuality and an adverse effect on his jo b performance. In this case, it is doubtful whether the Departm ent could m eet its burden, because the AUSA has consistently received superior ratings and has been granted a security clearance. Although it may be argued that a prosecutor who violates a state crim inal law prohibiting homosexual acts demonstrates a disrespect for the law inconsistent with the D epartm ent’s standard of prosecutorial conduct, the D epartm ent would have difficulty establishing the required nexus as a matter of law, because the state law is only enforced against public conduct.
March 11, 1983
M em o ran d um O p in i o n fo r the A s s o c ia t e A ttorn ey G eneral
This responds to your request for advice on the legal implications of failing to retain an Assistant United States Attorney (AUSA) who is an acknowledged homosexual. As set forth in more detail below, we have concluded that it would be permissible for the Department to refuse to retain an AUSA upon a determina tion that his homosexual conduct would, because it violates state criminal law, adversely affect his performance by calling into question his and, therefore, the Department’s, commitment to upholding the law. We must advise, however, that the facts in this case are such that it would be very difficult under existing judicial decisions to prove that there is a nexus between his conduct and an adverse effect on job performance. Because the burden of proof would be on the Government to prove that such a nexus exists once the AUSA has estab lished that he was dismissed for homosexual conduct, we would suggest consultations with the Civil Division and the Office of Personnel Management (OPM) before making a final decision not to retain a person under these circumstances. Both the Civil Division and OPM have informally expressed concern over our ability to defend successfully any suit that might be filed. 46 The AUSA in question has freely admitted his sexual preference, and that he has engaged in and intends to continue to engage in private consensual homo sexual conduct. As we understand the facts, the only reason the Department would not retain the AUSA is because of his homosexual conduct, and that reason would, under the Department regulations, be reflected in the letter of termination. We also assume that the letter would note that homosexual acts are a crime under law of the state in which the AUSA is stationed, and that the Department believes that any such violations of local criminal law reflect adversely on the AUSA’s fitness to represent the Government as a prosecutor.1
I. Limitations on Terminating an AUSA
AUSAs are in what is known as the “excepted service.” 5 U.S.C. § 2103(a). The Attorney General’s authority to remove them, see 28 U.S.C. § 542(b),2 is tempered, however, in several ways, two of which are relevant here: statute and OPM regulation.3 The statute and regulation that protect AUSAs from prohib ited personnel practices are 5 U.S.C. § 2302(b)(10) and OPM/FPM Supp. 731- 1, subchap. 3-2(a)(3)(c).
1 We do not address the constitutional validity o f such laws. Compare Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982); People v. O nofre, 415 N .E.2d 936 (N.Y. 1980), cert, denied, 451 U.S. 987 (1981); Commonwealth v Bonadio, 415 A .2d 47 (Pa. 1980); and State v Pilcher, 242 N.W .2d 348 (Iowa 1976) with U nited States v. Lem ons, 697 F.2d 832 (8th Cir. 1983), Doe v. C om m onw ealth's Attorney, 403 F. Supp. 1199 (E.D. Va. 1975), a f f d m em ., 425 U.S. 901 (1976); and Stew art v. United States, 364 A.2d 1205 (D .C. Cl. App. 1976). 2 The section states, “ Each assistant United States Attorney is subject to rem oval by the A ttorney G eneral." There are no reported cases under this section. Department o f Justice regulations provide that attorneys in the excepted service w ho are being rem oved are only entitled to a letter o f term ination. DOJ O rder No. 1752.1A (Apr. 27, 1981). The O rder states: GENERAL. The rights o f excepted service em ployees are strictly lim ited when discipline, including separation, is to be imposed H ow ever, some service em ployees have the sam e protec tions as com petitive service em ployees because o f V eterans’ Preference or prior com petitive status. PROCESSING D ISCIPLIN E, a. An excepted service em ployee who is protected under law and the regulations o f the O ffice o f Personnel M anagem ent [because o f veterans' preference] is entitled to the procedures fgovem ing regular civil service employees]. b. An excepted service em ployee with no protection under law or regulation should be given a letter advising him o r her o f the action being taken (suspension, separation, etc ) p n o r to the effective date o f the action. Id. at 19, 20. 3 The lim itations on the A ttorney G eneral’s authority may be categorized as: (1) OPM regulations govern ing em ploym ent o f those in the excepted service, see 5 C.F.R. §§ 302.101 et seq.\ (2) statutes and OPM regulations governing em ploym ent o f veterans in the excepted service; (3) Department regulations; and (4) any Department handbooks o r inform al understandings that may establish a reasonable expectation of continued em ploym ent. See A shton v. C iviletti, 613 F 2d 923 (D C. Cir. 1979). * A veteran, 5 U.S.C. §2 1 0 8 (1 )(B ), (3)(B), who has served for one year in the excepted service, id § 7 5 1 1(a)(1)(B), is afforded civil service protection, and action may be taken against him “only for such cause as w ill promote the efficiency o f the service.” Id. § 7513(a). W hether the Attorney G eneral’s authority in 28 U .S.C. § 542(b) prevails over the veterans’ preference statute is a question on w hich this O ffice expressed considerable doubt some years ago. M emorandum fo r W illiam D. Ruckelshaus, A ssistant A ttorney General, C ivil D ivision from A ssistant A ttorney General Rehnquist, O ffice o f Legal Counsel (Sept. 10, 1970); M emorandum for A ssistant Attorney G eneral R ehnquist from Leon Ulman and Herman M arcuse (Sept. 4, 1970).
47 A. Statutory and Regulatory Constraints
The decision not to retain the AUSA may be made for any number of reasons — for example, budget factors or employment ceilings — but it may not be made for a reason prohibited by statute or regulation. The Department is prohibited by statute from discriminat[ing] . . . against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.
5 U.S.C. § 2302(b)(10).4 In addition, OPM has issued guidelines covering suitability for employment in the federal government .5 Although applicants for employment in the excepted service may be disqualified if they engage in “infam ous, . . . immoral o r notoriously disgraceful conduct,” 5 C.F.R. § 302.203, the courts have held that neither the status of being a homosexual nor homosexual conduct which does not adversely affect job performance falls within this provision. In reversing a decision by the Civil Service Commission (now OPM) to disqualify an applicant for employment because of alleged immoral conduct, the U.S. C ourt of Appeals for the District of Columbia Circuit said over fifteen years ago:
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.
Scott v. M acy , 349 F.2d 182, 185 (D.C. Cir. 1965).6 As a result of cases such as this, e.g., Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969); Society fo r Indi vidual Rights v. Hampton, 63 F.R.D. 399 (N.D. Ca. 1973), a f f d on other grounds, 528 F.2d 905 (9th Cir. 1975); and Baker v. Hampton, 6 Empl. Prac. Dec. (CCH) I 9043 (D.D.C. 1973), OPM issued a Bulletin on December 21, 1973, placing the following gloss on the regulation:
[Y]ou may not find a person unsuitable for Federal employment merely because that person is a homosexual or has engaged in homosexual acts, nor may such exclusion be based on a conclu sion that 9 homosexual person might bring the public service
4 T he statute covers appointments in the excepted service. 5 U .S.C. § 2302(a)(2)(A )(i), (B). AUSA positions do not fall w ithin Schedule C , 5 C.F.R. § 213.3301, and are not, therefore, within any o f the exceptions to the coverage o f this statute. 5 U.S.C. § 2302(a)(2)(B )(i). 5 O PM adm inisters the regulations governing the civil service. 5 U .S.C. § 1103(a)(5) The civil service includes the excepted service. 5 U.S.C. § 2101(1). 6 A fter the decision in S c o tt, the Civil Service C om m ission again disqualified the applicant, and was again reversed. S co tt v. M a cy, 402 F.2d 644 (D .C . Cir. 1968).
48 into public contempt. You, are, however, permitted to dismiss a person or find him or her unsuitable for Federal employment where the evidence establishes that such person’s homosexual conduct affects job fitness — excluding from such consider ation, however, unsubstantiated conclusions concerning pos sible embarrassment to the Federal Service. Ashton v. Civiletti, 613 F.2d 923, 927 (D.C. Cir. 1980) (quoting Bulletin). In November 1975, OPM issued FPM Supplement 731-1, Determining Suitabil ity fo r F ederal Employment. Subchapter 3-2(a)(3)(c), which discusses infa mous or notoriously disgraceful conduct, states:
Court decisions require that persons not be disqualified from Federal employment solely on the basis of homosexual conduct. OPM and agencies have been enjoined not to find a person unsuitable for Federal employment solely because that person is a homosexual or has engaged in homosexual acts. Based upon these court decisions and outstanding injunction^], while a person may not be found unsuitable based on unsubstantiated conclusions concerning possible embarrassment to the Federal Service, a person may be dismissed or found unsuitable for Federal employment where the evidence establishes that such person’s sexual conduct affects job fitness.
Thus, it is improper to deny employment to or to terminate anyone on the basis either of sexual preference or of conduct that does not adversely affect job performance. In short, there must be a reasonable showing that the homosexual conduct adversely affects the job performance.
B. Case Law
1. The Nexus Test
An examination of recent case law indicates that the burden is on the Government to demonstrate that the AUSA’s homosexual conduct has ad versely affected or will adversely affect his performance or that of others, and that it will be difficult for the Government to do so. Hoska v. United States , 677 F.2d 131, 136-38 (D.C. Cir. 1982). The U.S. Court of Appeals for the District o f Columbia Circuit has articulated four ways in which homosexual conduct might adversely affect job performance: (1) if it jeopardizes the security of classified information through potential blackmail; (2) if it constitutes evi dence of an unstable personality unsuited for certain kinds of work; (3) if it causes the employee to make offensive overtures at work; or (4) if it constitutes the basis of “notorious” activities that trigger negative reactions from fellow employees or the public. Norton v. M acy , 417 F.2d 1161, 1166 (D.C. Cir. 49 1969).7 As in N orton, we believe that it be difficult for the Department to convince a court that the particular employee at issue failed any of these tests. Id. at 1166.8 Given his record, it would appear that the only way his ability to function successfully might be jeopardized would be through hostility from the public or his fellow workers, but there is no evidence o f any negative reactions. Nor is the AUSA, as an overt homosexual, apparently considered to be a security risk through a blackmail threat. The Department has given him a security clearance, and there is no evidence that the AUSA has an unstable personality: rather, his work is described as consistently superior. His current supervisor has stated that the AUS A ’s work continues to be excellent, and there are no allegations that he has made offensive overtures at work.9 We are not aware o f any evidence that he has engaged in the kind of notorious conduct that was found to be sufficient for termination in Singer v. United States Civil Service C om m ’n , 530 F.2d 247 (9th Cir. 1976), vacated and remanded, 429 U.S. 1034 (1981), and Childers v. D allas P olice D e p ’t, 513 F. Supp. 134, 140- 42 (N.D. Tex. 1981).10 Rather, the AUSA has apparently been so discreet that the fact o f his homosexuality came as a surprise to his superiors. Like the employee in N orton, the AUSA could successfully argue that he is a satisfac tory worker who suffered an adverse employment action because of a general policy decision.11
7 N orton involved a veteran who could o n ly be dism issed fo r “ such cause as will prom ote the efficiency of the serv ice.” 5 U .S.C . § 7512(a) (Supp 1965). The nexus test, how ever, has been carried over in subsequent cases to disputes involving those in the ex cep ted service. A shton v. C iviletti, 613 F.2d 923 (D.C. Cir. 1979). N ot all c ircu its use the nexus test, see, e.g.. Vigil v. Post O ffice D ep't, 406 F.2d 921 (10th Cir. 1969), but it is the test em ployed in the circuits in which it is most likely that the AUSA, if he were so inclined, w ould bring suit. 8 N orton involved an otherw ise com petent NASA budget analyst dism issed because o f a homosexual advance he m ade one evening while in a c ar. 417 F.2d at 1162-63. He w as arrested for a traffic violation by m em bers o f the M orals Squad who had o b serv ed the incident. He was then interrogated about his conduct by the M orals Squad and NASA security officers. Although sodom y was a violation of the local law, D.C. Code § 2 2 -3 5 0 2 (1967), the court did not raise th e issue o f w hether such a violation might autom atically establish the nexus. The g o vernm ent’s brief did, how ever, note that sodomy was a crime and that the police had probable cause to arrest Mr. Norton on that charge, although they chose not to. A ppellee’s B rief at 14 n.9, 31 & n.25, N orton v M acy, 417 F.2d [161 (D .C . Cir. 1969). Thus, the Court o f Appeals im plicitly rejected the proposition that conduct violative of the lo cal ordinance was sufficient, standing alone, to establish a nexus betw een that conduct and the jo b performance required in M r. N orton’s job. 9 See, e.g., S a fra n sky v. State Personnel B oard, 215 N .W .2d 379, 381, 385 (Wise. 1974). 10C om pare Singer, 530 F.2d at 249, 2 5 2 -5 5 , M cC onnell v. A nderson, 451 F.2d 193 (8th Cir. 1971), cert, denied, 405 U .S. 1046 (1972); Childers, 513 F. Supp. at 140-41 w ith A um iller v. U niversity o f D elaware, 434 F. Supp. 1273 (D. D el. 1977). See also R o ss v. Springfield S chool Dist. No. 19, 641 P.2d 600, 608 (Or. Ct. A pp. 1982) (teacher properly dismissed w here public practice o f hom osexuality resulted in “notoriety” which im paired his teaching ability). 11 In ben Shalom v. S ecreta ry o f Army, 489 F. Supp. 964 (E.D. W ise. 1980), the court found that the dism issal o f an otherw ise suitable soldier b ecau se o f her hom osexuality violated the soldier’s substantive due process rights un d er the Fifth Amendment. Id. Given that the soldier had received high m arks on her military perform ance, the court found th at there w as no nexus betw een her status as homosexual and her suitability for service. “ It w as, therefore, arbitrary, capricious and unreasonable for the A rm y to conclude that the petitioner was anything o th e r than a 'su itab le' soldier under its regulations.” Id. at 977. See also M artinez v. B row n, 449 F. Supp. 207 (N .D . Ca. 1978) (same; Navy regulations). B u t see B eller v. M iddendorf, 632 F.2d788 (9th Cir.) (rejectin g sam e analysis w hen applied to N avy regulation), p e t ’n fo r reh ’g en banc denied sub nom. M iller v. R um sfeld, 647 F.2d 80 (9th C ir. 1980), c ert, denied, 452 U.S. 905 (1981). The denial o f the petition for rehearing en ba n c elicited a long dissent. M iller, 647 F.2d at 80 -9 0.
50 We are aware of two cases in which the Government has dismissed homo sexual employees and defended the dismissals successfully: Singer, supra, and Dew v. H alaby, 317 F.2d 582 (D.C. Cir. 1963), cert, dismissed, 379 U.S. 951 (1964). D ew occurred prior to the issuance of the pertinent OPM regulation. Singer involved the kind of “notorious” conduct faulted in N orton : Mr. Singer was a clerk typist whose work was satisfactory but whose off-duty conduct included kissing and embracing another man on federal property, discussing gay rights on TV shows in which he identified himself as a federal employee, applying for a marriage license to be married to another man, and receiving “extensive” publicity because of his attempt to obtain a marriage license. 530 F.2d at 249. In both D ew and Singer, the Government received adverse public ity because o f the dismissals and eventually reversed its policy, reinstating both employees with back pay. Because the AUSA has stated that he intends to continue to engage in homosexual conduct, and this is now public knowledge, the Department might take the position that an AUSA who habitually engaged in a violation of state criminal law brings discredit upon the Department sufficient to establish the kind of nexus required by current case law. We could argue that the willingness to engage in such acts in violation o f local law demonstrates a disrespect for the law that is not consistent with the standard of conduct demanded by the Department o f someone who is engaged in prosecuting others for violations of the law. We could also note that the local legal community, represented by the state bar, has condemned at least the public practice of homosexuality. On the other hand, OPM ’s regulation forbids the federal government from discriminating against those who engage in homosexual conduct, absent a nexus between the conduct and job performance. The AUSA could argue that OPM’s regulation forbids the taking into account of state laws, especially if the AUSA would probably not be prosecuted for private consensual homosexual acts under the state’s current enforcement policy. OPM was presumably aware in 1973 that homosexuality violated the laws of many states and did not intend its standard an adverse effect on job performance to be met by merely showing that the conduct violates state law.
2. Law Enforcement Exception
The only justification in the case law which might support a decision to refuse to retain the AUSA in this context would be to convince the court that private homosexual conduct is, once it is public knowledge, detrimental to the performance of the AUSA’s job in states where it violates the criminal law. Proving the nexus between questioned behavior and job performance, espe cially when the behavior occurs outside the work place, is, however, often difficult.12 Courts seem reluctant to find a nexus if the behavior does not occur 12 See Bonet v. U nited States P ostal Service, 661 F.2d 1071 (5th Cir. 1981) (indictm ent for child m olesta tion, standing alone, insufficient); Young v. H am pton, 568 F.2d 1253 (7th C ir. 1977) (conviction for drug use. Continued
51 during official work hours, and have stated that it is the agency’s obligation to spell out how the conduct will affect performance or promote the efficiency of the service. P hillips v. Bergland, 586 F.2d 1007, 1012-13 (4th Cir. 1978). The most effective way to prove adverse effect on job performance would be to prove that the special nature of a prosecutor’s job — his public representa tion o f the entire Department, his duty to uphold the law, and the potential for accusations of hypocrisy for hiring a lawbreaker to enforce the law — requires that there be no taint o f criminality. 28 C.F.R. § 45.735-2(a). Some cases have emphasized that law enforcement officers can, because of their particularly sensitive positions, be held to a stricter standard of behavior, even in their private lives, than might otherwise be the case. For example, in M asino v. U nited States, 589 F.2d 1048 (Ct. Cl. 1978), the court approved the dismissal of a United States customs officer because of his voluntary statements that he had smoked marijuana on several occasions: M asino in his position as a Customs Inspector was specifically charged with enforcing the laws concerning contraband, includ ing marijuana. Since possession and/or use o f marijuana is a violation of federal criminal statutes, he was clearly not con ducting him self in a m anner to be expected o f a Government employee engaged in law enforcement duties. This was what the appeals authority said, and we agree. Further, in addition to the language of the appeals authority, the transportation and use of the very contraband which a law enforcement officer is sworn to interdict, is clearly misconduct which “speaks for itself.” Obvi ously, the disciplinary action of termination taken against Masino to “promote the efficiency o f the service” cannot be said to be without a rational basis. His discharge was neither arbitrary nor capricious. 589 F.2d at 1056. A district court has upheld a state law barring all felons, even those who had received pardons, from being policemen. Dixon v. McMullen,
12( . . . continued) standing alone, insufficient); Tygrett v. B a rry, 627 F.2d 1279 (D.C. C ir. 1980) (reaffirm ing analysis in T ygrett v. W ashington, 543 F.2d 840 (D C . Cir. 1974)) (probationary policem an's advocacy of illegal “sick o u t” in su fficien t); G rebosz v. United S ta te s C ivil Service C om m 'n, 472 F. Supp. 1081 (S D.N.Y. 1979) (con v ictio n s fo r possession o f marijuana a n d sale o f cocaine insufficient). Even questionable conduct while at w ork does not au tom atically provide the nexus. In Phillips v. Bergland, 586 F.2d 1007 (4th Cir. 1978), the c ourt d eclin ed to find that assaulting a fello w em ployee in th e stairw ell, albeit during the lunch hour, was facially sufficient to prove the nexus: T ypical o f conduct, w hich carries on its face p rejudice to the service as contem plated in § 7 501(a), are falsificatio n of work records o r expense accounts, theft of governm ent property, assau lt on o n e ’s su p erv iso r at work, an d insubordination. All of these . . . are quite different from m isconduct w hich is entirely u nrelated to the em ployee’s work and which occurs when the em ployee is o ff duty. A nd the courts have recognized th at distinction and have made plain the g reater burden w hich rests on the agency to justify its action in the latter case. Id. at 1011 (footnotes and citations om itted). B ut see Yacovone v. Bolger, 645 F 2d 1028 (D.C. Cir.), cert d enied , 454 U .S. 844 (1981) ($8 theft by P o stm aster sufficient because o f fiduciary responsibilities); Wathen v. U nited S ta tes, 527 F.2d 1191 (Ct. Cl.) (m u rd er com m itted in public sufficient), cert, denied, 429 U.S. 821 (1976); G ueroy v. H am pton, 510 F.2d 1222 (D.C C ir 1974) (m anslaughter conviction sufficient).
52 527 F. Supp. 715 (N.D. Tex. 1981). The court said that it was permissible for the state to examine the individual’s prior history and to deny employment to those with a background of lawbreaking in order to insure “that those persons publicly employed in emergency or dangerous situations are sober and alert, and possess qualities such as honesty, integrity, reliability and obedience to the law.” Id. at 721. Noting that policemen are acting on behalf of “people at large,” the court said: Policemen are just simply a special category. Integrity and trust are prerequisites. The law clothes an officer with authority to handle many critical situations, including those that occur in a lightning moment and which can never be reenacted or reversed. . . . A state’s legitimate concern for maintaining high standards of professional conduct extends far beyond the initial licensing. Id. See also Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir. 1970); M acchi v. Waley, 586 S.W.2d 70, 72-74 (Mo. Ct. App. 1979); Vegas v. Schechter, 178 N.Y.S.2d 67, 68-69 (Sup. Ct. 1958).13 Even those whose connections to law enforcement appear more tenuous have come within the sweep of these statements. In upholding the denial of employment to a homo sexual who sought work as a property room clerk in the police department, Childers v. D allas Police Department, supra, the court said: No one can disagree that the character and activities of those to whom we entrust the enforcement of our laws must be beyond reproach. The activities of an employee of a law enforcement agency are o f paramount interest to that agency, as the police department as a whole must reflect the values of a majority of society. Childers, 513 F. Supp. at 140—41.14 Likewise, it could certainly be argued that public prosecutors must be trustworthy and law abiding, or else the public’s confidence in the justice system will erode. Persons deciding whether to bring or decline prosecutions should not be lawbreakers themselves.15
13 But see Sm ith v. Fussenich, 440 F. Supp. 1077 (D. Conn. 1977) (law b am ng all felons from w ork as private security guards struck down as overbroad). 14 H ow ever, C hilders offers less support for the decision not to retain the AUSA than at first appears. First, the case involved a property room clerk, the same kind o f low -level jo b involved in Ashton, supra, in which the D .C. C ircuit cam e to the opposite conclusion about an FBI m ailroom clerk. Second, C hilders involved a hom osexual who, as in Singer, was not discreet and who openly advocated hom osexuality w hile identifying him self as a public employee. The notoriety led the Court to conclude that the applicant failed one o f the tests laid out in N orton, supra. Childers, 513 F. Supp. at 142 n .l 1. 15 Law enforcem ent is not the only profession the courts have recognized as being one in w hich the pub lic’s confidence in the em ployee is important. An a ir co n tro ller's jo b has been described by courts as a “a sensitive one” in w hich m isconduct m ay erode the p u b lic's faith in reliability o f the national air control system. D ew v. H alaby, 317 F 2 d 582, 587 n . l l (D.C Cir. 1963) (hom osexual acts), cert, dism issed, 379 U.S. 951 (1964); M cD ow ell v. G oldschm idt, 498 F. Supp. 598, 605 (D. Conn 1980) (conviction for possession o f m arijuana). D ew 's continued validity has been undercut by Norton, decided five years later, in which the D.C. C ircuit was m uch more w illing to question and overrule O P M ’s rationale.
53 We must emphasize, however, that none of these cases is dispositive. Fur thermore, the fact that the AUSA has apparently, according to those who have evaluated him, continued to perform effectively in his job even after his homosexuality became public knowledge in the United States Attorney’s Of fice will seriously undercut the crucial argument that his homosexual conduct is adversely affecting his job performance. In order to prevail, the Department may well have to convince the courts to accept the argument that the continuing violation o f local laws that make private consensual homosexual conduct criminal establishes the required nexus as a matter of law even though that local law probably would not be enforced against the AUSA and even though such a legal “presumption” might be said to run counter to the pertinent statute and regulations. II. Comstitational Protectnoims The AUSA might attempt to argue that failing to retain him would violate certain o f his constitutional rights, but we do not believe such arguments would be successful. It is true that federal employees do not give up their constitu tional rights upon accepting employment and the federal government may not condition a job upon the waiver of those rights. However, the issue whether the right to privacy, which the courts have determined to be protected by the Constitution, encompasses the right to practice private consensual homosexu ality is still a m atter o f serious dispute. See Berg v. Claytor, 436 F. Supp. 76,79 (D.D.C. 1977), vacated, 591 F.2d 849 (D.C. Cir. 1978). Although some courts have found protection for homosexuals for certain activities in the First Amend ment either in the freedom to speak,16 the freedom to associate,17 or the right to ]6S ee A u m illier v. U niversity o f D elaw are, 434 F. Supp. 1273, 131112 (D. Del. 1977); A canfora v Bd. o f E du ca tio n , 491 F.2d 498, 501 (4th Cir.), c e rt. d enied, 419 U.S. 836 (1974). In A um illier, the court awarded pun itiv e dam ages in an action brought u n d e r 42 U.S.C. § 1983 against a university president w ho refused to rehire an untenured teacher because the teach er had discussed his hom osexuality in public. But see Suddarth v. Slane, 539 F. Supp. 612, 616 (W.D. V a. 1982) (denied recovery under § 1983 on ground that participation in illegal act — adultery — precluded recovery fo r allegedly w rongful dism issal). Damages w ere also aw arded in J ohnson v. San Jacinto J u n io r College, 498 F. Supp. 555, 57779 (S.D. Tex. 1980) (adultery pun ish ed by sum m ary dem otion without a hearing). 17 See G ay L ib v. U niversity o f M issouri, 558 F.2d 848 (8th Cir. 1977) (freedom o f speech and association protects hom osexual students), cert denied, 434 U.S. 1080 (1978); G ay A lliance v. M athew s, 544 F.2d 162 (4th C ir. 1976) (sam e); G ay Students O rg. v. Bonner, 509 F.2d 652 (1st Cir. 1974) (same); Lesbian/G ay F reedom D ay C om m ittee, Inc. v. INS, 541 F Supp 569 (N.D. Cal. 1982) (holding unconstitutional p er se exclu sio n o f hom osexual aliens as violative o f First A m endm ent associational rights o f hom osexual citizens); F ricke v. Lynch, 491 F. Supp. 381 (D .R .I. 1980) (hom osexual high school student’s rights to freedom of speech and association covered bringing hom osexual date to high school prom); Student Coalition fo r Gay R ig h ts v. A u stin P eay State University, 4 7 1 F Supp. 1267 (M .D . Tenn. 1979); Toward a G ayer B icentennial C om m ittee v. Rhode Isla n d Bicentennial Foundation, 417 F. Supp. 632 (D.R.I. 1976) (upholding right o f access to public forum ); G ay Activists A llia n ce v. Board o f Regents, 638 P.2d 1116 (Okla. 1981); Alaska Gay C oalition v. S u llivan, 578 P.2d 951 (Ala. 1978). See also N em etz v. INS, 647 F.2d 432 (4th Cir. 1981) (private hom osexual co nduct d oes not preclude finding o f “good m oral character” necessary for naturalization). Even the m ilitary ’s p e r se exclusion of hom osexuals has been successfully attacked in some cases despite the trad itio n al deference given to arguments about discipline and upholding the law. ben Shalom v. Secretary o f A rm y, 489 F. Supp. 964 (E.D . Wise 1980) (discharge fo r hom osexuality violated rights o f association and personal privacy). See also Bruns v. Pomerleau, 319 F. Supp. 58 (D. Md. 1970) (refusal to accept employment application from practicing nudist violated his right to freedom o f association). Some courts have also found protection in state constitutions. Gay Law Students A s s ’n v. Pacific Tel. & Tel., 595 P.2d 592,597 (Cal. 1979)
54 conduct one’s private life free from government surveillance, see C yr v. Walls, 439 F. Supp. 697 (N.D. Tex. 1977) (police surveillance of homosexual groups violated right to privacy),18 we do not believe that failing to retain the AUSA would violate these rights. The Department has not invaded the AUSA’s privacy by making impermissible inquiries, because the background check is required of all applicants and there has been no further inquiry. Failure to retain the AUSA would not be because he associates with homosexuals or has spoken out about his status but solely because of a determination that knowing, continuing violations of a local criminal law are sufficient to disqualify him from a job as a federal prosecutor. III. Conclusion The Department has the right to decline to retain the AUSA if his conduct or intended conduct are adversely affecting his job performance or the perfor mance of those around him. In this particular case, the individual involved apparently has an excellent record as a litigator and is, according to his present superior, functioning in a satisfactory manner. It would be difficult, given this record, to show that his homosexual conduct in fact adversely affects his job performance. Rather, we believe that on these facts it would be likely that he would meet the tests articulated in Norton, supra, especially in view of the fact that the Department is willing to give him the security clearance necessary for his work. The state criminal law he is apparently violating is, we understand, only enforced against public conduct. The Department does not have a policy of dismissing people for conduct that violates other similar state criminal laws. Staff members at both the Civil Division, which will be called upon to defend any suit, and OPM, whose regulation we are interpreting, have been informally consulted and have stated that they believe the facts of this case will make it difficult to establish a sufficient nexus between the conduct and the job performance, and we tend to agree with their judgment. As long as the OPM regulation remains in force, we also believe it would be difficult to establish the proposition that the violation of local laws on the facts of this case establishes a nexus as a matter of law sufficient to support a decision to dismiss. We must reiterate that the case law makes it clear that potential embarrass ment to the Department is not enough to justify a refusal to retain an AUSA: there must be a supportable judgment made by the appropriate officials that the AUSA’s actions are adversely affecting his performance. Unless the Depart ment can reasonably expect to maintain the burden of proof on this issue, it is
18 See also Shuman v. City o f Philadelphia, 470 F. Supp. 449, 459 (E.D. Pa 1979) (inquiry into off-duty personal activities — affair w ith an 18-y ear-o ld — violated right o f privacy in the absence o f any showing o f im pact on job perform ance); M ajor v. H am pton, 413 F. Supp. 66 (E.D. La. 1976) (dism issal o f IRS officer who rented apartm ent for off-duty, extram arital affairs imperm issible); M indel v. U nited States Civil Service C om m ’n, 312 F. Supp. 485 (N.D. Cal. 1970) (term ination o f postal clerk for cohabiting violated Ninth A mendm ent right to privacy). B u t see Suddarth v. S lane, 539 F. Supp 612 (W .D. Va. 1982) (adultery not protected by the First Am endm ent); H ollenbaugh v. C arnegie Free Library, 436 F. Supp. 1328 (W .D. Pa. 1977), a j f d , 578 F.2d 1374 (3d C ir.) (em ployees’ open adultery not protected by right o f pnvacy), cert. denied, 439 U.S. 1052(1978).
55 not reasonable to expect that the Department would prevail. Without stronger evidence that this particular individual’s homosexuality is adversely affecting his performance, we believe that it would be difficult to overcome charges of discrimination on the basis of conduct that apparently does not adversely affect the performance o f the employee or those around him. T h eo d o r e B . O lso n Assistant Attorney General Office o f Legal Counsel