Bruce C. SCOTT, Appellant, v. John W. MACY, Jr., Chairman, United States Civil Service Commission, et al., Appellees.
No. 18483.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 17, 1964. Decided June 16, 1965.
182, 183, 184, 185, 186, 187, 188, 189, 190
Affirmed.
Burger, Circuit Judge, dissented.
Mr. David Carliner, Washington, D. C., with whom Mr. David Isbell, Washington, D. C., was on the brief, for appellant.
Mr. Martin R. Hoffmann, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Gil Zimmerman, Asst. U. S. Attys., were on the brief, for appellees.
Before BAZELON, Chief Judge, and BURGER and MCGOWAN, Circuit Judges.
BAZELON, Chief Judge.
Following competitive examinations for Federal civil service employment, appellant was notified in February 1962 that he had qualified for “personnel posi
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 Commission‘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 con
The Commission excluded appellant from public employment because it concluded 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 specification.13 The Com-
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
MCGOWAN, Circuit Judge (concurring).
I join in the result reached by Judge Bazelon solely for what seem to me to be the inadequacies, in terms of procedural fairness, of the notice given to appellant of the specific elements constituting the “immoral conduct” relied upon as disqualifying him for all federal employment. The consequences of this result I take to be as follows: The District Court‘s grant of summary judgment to appellees is reversed; and, in the light of the reason for this reversal, it is appropriate for a judgment to 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. This status obviously does not assure him of any federal employment; and the Commission is, of course, free to initiate
Disqualification from consideration for all federal employment is not, in my view, a status which can arbitrarily be imposed upon any citizen. I think it was arbitrary, on this record, for appellant to be disqualified for “immoral conduct” and to be told, in response to his request for a specification, only that he had engaged in “homosexual conduct.” It is true, as the dissent points out, that appellant came perilously close to abandoning this claim to lack of adequate notice, but I do not read the record as showing that this brink was ever finally crossed. The waiver is said to have occurred at the time of appellant‘s final appeal to the Commission, but, although appellant there displayed a patent preoccupation with what he conceived to be a transcending issue of principle implicit in his case, this is a common failing of litigants, especially those who are representing themselves, as was appellant at that time.
Even here, however, he reiterated his right to know exactly what he was supposed to have done which caused him to be disqualified. There are allegations embodying this issue in the complaint in the District Court; and, in the appellees’ own statement of material facts in support of their motion for summary judgment, it is averred that appellant had requested specification of his “immoral conduct” in his appeal from the Division of Adjudication and that, in his appeal to the Commission, “while not abandoning his claim that he was entitled to a resume of the adverse information * * * [he] essentially devoted his final appeal to the contention that it is error for the Commission to rule that homosexuals are unsuitable for appointment. * * * ” (Emphasis supplied.) Neither in the District Court nor in this court did appellees think it wise to fail to meet on the merits this procedural issue of lack of adequate notice; and counsel for appellant in this court, although apparently sharing appellant‘s concern with the broader aspects of the case, remained true to his professional instincts by not submerging completely his client‘s interest in having a job in the larger and more venturesome quest of a principle of general application. Alternative contentions are the familiar stuff of the law, and I am not prepared to say that this record falls outside this pattern.
Upon the assumption (which may or may not be correct) that the Executive Branch can freely dismiss employees from the federal service except as limited by express provision of statute or regulation, it is said that it must be a fortiori privileged to refuse employment to a mere applicant therefor. As does this formulation, so do I put the Constitution to one side for present purposes, not because I have ever been able to grasp the precise implications of the ancient axiom that there is no constitutional right to public employment, but because I do not read the relevant statute and regulation as contemplating the procedure followed here in disqualifying appellant. Both statute and regulation are phrased in the most general terms, and they certainly imply a wide area of discretion on the part of federal employers in choosing among applicants. But the broad letter of
My colleagues do not agree and hence there is no opinion of the court on the basis of the remand in this case. I find myself unable to agree with either of the two opinions. Judge Bazelon reaches far out to deal with a problem which is not before us and which is essentially one of broad Legislative and Executive policy. The basic issue in the case is narrow and limited: Is there a reasonable basis for the Commission‘s determination that conduct of Appellant, which he asked the Commission to “assume” and which is admittedly criminal under existing statutes, affords an adequate basis for his disqualification for federal employment? However, since my colleagues do not agree with each other and each undertakes to decide a question not properly here for decision, I set forth my analysis of the case.
(1)
Whatever the merits of Appellant‘s contention that “procedural due process” entitled him to a statement of the specifics of the conduct the Commission found him to have engaged in, Appellant has waived that contention by his actions and litigation position before the Commission. At every stage of his appeal within the Commission Appellant‘s position was a challenge to the right of the Government to inquire at all into his sexual habits, on the ground that they were irrelevant to his suitability for employment. To be sure, he also demanded to know the specifics of the conduct underlying the Commission‘s decision, but the essence of his position was that his private life was none of the Government‘s business. This is seen, for example, in his refusal at the Commission interview to respond to the Commission‘s request that he comment on the Commission‘s statement that it had evidence indicating his homosexuality. Instead of requesting details, or making a denial, Appellant responded, “I do not believe the Question is pertinent in so far as job performance is concerned.” Similarly Appellant‘s prayer for relief to the Board of Appeals and Review sought summary reversal of the action taken on his application—not merely disclosure to him of the adverse information in his file for purposes of rebuttal. As the Board remarked,
The contentions which you have submitted do not materially refute the basis for the action taken, but appear to disagree * * * only with the Commission‘s determination that homosexual conduct is immoral in nature and does not meet requirements of suitability for the Federal service.
Appellant‘s request to the Board of Appeals for summary reversal of the Commission action in his case taken alone, or even together with his constant assertion of the irrelevance of his sexual habits to employment eligibility, might not suffice as a waiver of the issue of specificity. But on his final administrative appeal, to the Commissioners themselves, Appellant explicitly requested the Commission to
assume that I have engaged in “homosexual conduct,” and let me equate “homosexual conduct” with “homosexual outlet” as used in Chapter 21, pages 610-666, of Sexual Behavior of the Human Male by Alfred C. Kinsey, Wardell B. Pomeroy, and Clyde E. Martin, and with “homosexual responses and contacts” as used in Chapter 11, pages 446-501, of Sexual Behavior of the Human Female by the same authors with Paul Gebhard. (Footnotes omitted.)
In this situation the Commission had the right to take Appellant at his word and to assume he had engaged in conduct which, as indicated by his references, would have been punishable as a crime under
(2)
Assuming for argument that Appellant has preserved his procedural contentions, however, I analyze the merits of those contentions. Judge Bazelon appears to adopt Appellant‘s argument that the due process clause of the Fifth Amendment required the Commission to disclose in greater detail its evidence against Appellant. Judge Bazelon does not in terms say so, but his view presumably is that the Commission‘s procedure unduly restricted the “liberty” spoken of in that amendment. I believe that position to be untenable. As a mere applicant for government employment, Appellant can hardly claim higher rights of process than one who is already a government employee. And the Supreme Court, in Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961), pointed out that it had
* * * consistently recognized that * * * the interest of a government employee in retaining his job can be summarily denied. It has become a settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer. (Emphasis added.)
See also Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Bailey v. Richardson, 86 U.S.App.D.C. 248, 267, 182 F.2d 46, 65 (1950), aff‘d by an equally divided Court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352 (1951).
In sum it must be conceded that the Government in its capacity as an em1ployer may “hire and fire,” select and reject at will, restrained only as Congress by statute, the President by Executive Order or an Executive Agency by Regulation has curtailed that right. To put it another way, absent statute or authorized regulation conferring on Appellant a right to more refined procedures than given the Commission‘s action must stand unless its announced basis is “patently arbitrary or discriminatory.” Cafeteria Workers, supra, 367 U.S. at 898, 81 S.Ct. 1743. See also Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). It may be that the government employee‘s or employment seeker‘s lack of procedural rights, absent statute or regulation, effectively undermines his conceded substantive right not to be excluded from employment for arbitrary reasons, see Cafeteria Workers, supra, 367 U.S. at 900, 81 S.Ct. 1743 (dissenting opinion); but it is hardly the province of a Court of Appeals to erect procedural safeguards thus far consistently rejected by the Supreme Court.1
Judge McGowan takes a different position and avoids any constitutional issue because he finds the Commission‘s procedures inconsistent with the congressional purpose manifested in
The President is authorized to prescribe such regulations for the admission of persons into the civil service of the United States as may best promote the efficiency thereof, and ascertain the fitness of each candidate in respect to age, health, character, knowledge, and ability for the branch of service into which he seeks
to enter; and for this purpose he may employ suitable persons to conduct such inquiries * * *.
I am unable to read this statute as creating in Appellant the rights he claims. I read it as an authorization addressed to the President, and no one else, empowering him to promulgate regulations dealing with the selection of government employees and to ascertain the fitness and ability of candidates.
The President must be presumed to know the powers conferred upon him by Section 631 to promulgate appropriate procedures for dealing with applicants for federal employment. Acting pursuant to that Section, President Kennedy in 1962 directed the Commission to formulate regulations dealing with adverse actions against employees of the departments and agencies of the federal government.2 I intimate no view as to what the Regulations so promulgated (excerpted in note 2, supra) would require the Commission to disclose to Appellant were he an employee rather than simply an applicant. I point to those Regulations merely to show the manner in which they were promulgated and their purpose. As I see it this is the way in which Section 631 was intended to operate. The skeletal framework of that Section can confer no rights on Appellant Scott as an applicant until it has been implemented by Executive action comparable to that taken by President Kennedy with respect to adverse actions against employees.
(3)
Because in my view Appellant has waived his procedural contentions I turn to a consideration of his substantive argument that homosexual conduct is an arbitrary ground for exclusion from employment. This is the argument which, by inference at least, Judge Bazelon considers open by suggesting that the Commission ought to spell out3 the relationship between homosexual conduct and suitability for federal employment. In view of the actions of the Congress and the Executive I do not consider this question open.
The Commission implemented
Wisely or not Congress, in common with a host of other law making bodies, has defined as criminal the homosexual conduct stipulated to by Appellant in his final appeal at the Commission. Whether it is sound legislative policy to attempt to deal with sex deviates under the criminal law is not open to judges but one can hardly doubt that such conduct is regarded as immoral under contemporaneous standards of our society. This court is in no position, then, to overturn, or even
In Dew v. Halaby, supra, which is controlling on the substantive aspects of this case both for this court and the Commission, a federal employee was discharged for pre-employment homosexual conduct at a time when Commission regulations expressly provided that facts sufficient to disqualify an applicant for a position were likewise sufficient to justify discharge of an employee. We upheld Dew‘s discharge, which was based upon the same regulation involved in the present case. We noted that Dew did not contend that the homosexual conduct involved was not condemned by that regulation: “in fact, it is difficult to see how he could ask a court to hold that the agency erred in so considering it.” Id. at 175, 317 F.2d at 586. (Footnote omitted.) We did not question that the regulation itself was valid.
As Dew v. Halaby recognizes, our inquiry into the merits of Appellant‘s disqualification, once he had asked that his involvement in homosexual conduct be assumed, can seek only to discern whether the Commission‘s action was rationally based or whether, on the other hand, its action was arbitrary and capricious. Id. at 178, 317 F.2d at 589.5 And that case is authority that homosexual conduct is not an irrational ground for disqualification.
Since precedent, contemporary standards, and common sense require rejection of Appellant‘s substantive argument, and since he can point to no statute or regulation granting him more process than he received, I would affirm the summary judgment for Appellees.