UNITED STATES INFORMATION AGENCY v. Jan KRC, Appellant.
No. 91-5339.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 13, 1992. Decided April 9, 1993.
989 F.2d 1211
Before WALD, D.H. GINSBURG, and HENDERSON, Circuit Judges.
Richard Laird Hart, with whom Arthur B. Spitzer, Washington, DC, was on the brief, for appellant. Edward R. Cohen, Attorney, Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Barbara L. Herwig, Washington, DC, were on the brief, for appellee.
III.
It is well settled that Dean has no fifth amendment privilege with respect to the contents of government records in her possession. She does not contend otherwise. It is equally clear, as Braswell and earlier cases demonstrate, that Dean, as a government custodian, may not invoke her personal fifth amendment privilege to refuse to produce subpoenaed documents. Yet, as Braswell makes clear, evidence relating to her act of production does trigger fifth amendment protection.
Although the Independent Counsel may not use Dean‘s act of production against her, he may introduce testimony that the documents she possessed are HUD documents produced by HUD in response to a subpoena. Finally, because the district court deferred until trial its ruling on the admissibility of portions of the documents, the Independent Counsel‘s attempt to appeal from the reserved ruling fails.
Affirmed.
Opinion dissenting in part filed by Circuit Judge WALD.
D.H. GINSBURG, Circuit Judge:
This appeal arises from a decision by the United States Information Agency to terminate the Foreign Service appointment of Jan Krc. The USIA Office of Security (USIA-OS or OS) determined that Krc posed a security risk because of certain homosexual relationships he had had during his assignment in Belgrade. Krc alleges that the USIA violated his right to equal protection, tortiously interfered with his prospective employment prospects, and interfered with his civil service career in violation of
I. BACKGROUND
Krc entered the Foreign Service with a limited appointment in 1982, and in 1983 was posted to Yugoslavia. While Krc was in Yugoslavia, the USIA Office of Security received certain information, classified “Secret,” regarding him. (The Government has filed the Secret information with this court under seal.) When the USIA debriefed Krc at the end of his posting in 1984, it undertook to find an explanation for this Secret information. During this debriefing, Krc revealed that while in Yugoslavia, he had engaged in homosexual conduct with a number of partners, including not only other Foreign Service officers (FSOs) but also the assistant military attache of a non-NATO European country and two nationals of a Communist country.
In October 1984 after an investigation the USIA Personnel Director, Angie Garcia, informed Krc that she intended to terminate his Foreign Service appointment; his sexual relationships, she wrote, “demonstrate[d] insubordination, irresponsibility, poor judgment and lack of discretion.” In December 1984, however, upon hearing Krc‘s version of what he was told at a briefing about USIA‘s fraternization policy barring sexual relations with East Bloc nationals, Garcia decided to issue only an official letter of reprimand “based on the poor judgement [sic] and indiscretion demonstrated by [Krc‘s] actions.” Shortly thereafter, the USIA Director of Security, Bernard Dowling, informed Garcia that he would “not approve any foreign service assignment of Mr. Krc because of the strong security risk involved.” Dowling explained that Krc “not only showed poor judgment and lack of discretion” while in Yugoslavia but “also committed acts which we feel make him a security risk in any foreign service assignment,” namely “engaging in homosexual relationships with eight different men, including two citizens of Yugoslavia.”
Because Dowling refused to approve any future overseas assignments for Krc, Garcia informed him that she was terminating his Foreign Service appointment pursuant to
Krc filed a complaint with the Foreign Service Grievance Board challenging the termination of his Foreign Service appointment. In March 1987 the FSGB ordered Krc reinstated in the Foreign Service. The USIA sued in District Court to set aside the FSGB‘s order, and Krc counterclaimed, seeking enforcement of the FSGB‘s order and alleging that the USIA‘s failure to comply with the order violated the
Meanwhile, Krc began to pursue job opportunities elsewhere. In 1988 he tried to secure part-time work with a contractor working for the Defense Intelligence Agency. Krc could not be authorized for such work, however, until the Defense Industrial Security Clearance Office (DISCO) converted his security clearance into an industrial security clearance. In May 1988 DISCO submitted to the USIA-OS a form letter inquiring whether any “adverse information was developed subsequent to issuance” of Krc‘s security clearance. The OS answered in the affirmative, after which Krc was not hired for the job. As a result, Krc added a new counterclaim, alleging that by advising DISCO of “adverse information” about him, the USIA tortiously interfered with his prospective employment opportunities and business advantage.
The district court granted the USIA‘s motion to set aside the FSGB‘s order and dismissed the APA and due process counterclaims. The Court of Appeals affirmed, but remanded for the district court to consider Krc‘s equal protection and tortious interference claims. United States Infor-mation Agency v. Krc, 905 F.2d 389 (D.C.Cir.1990). Meanwhile, in February 1990 Krc applied for an excursion tour to a United States consulate in Czechoslovakia, but the OS refused to clear him for that position. On remand, Krc added a third counterclaim, alleging that the USIA had refused to approve him for the excursion tour in retaliation for his earlier grievance and had therefore interfered with his civil service career in violation of
II. ANALYSIS
As indicated above, the district court denied Krc relief on all counts. We affirm that judgment for the reasons that follow.
A. Equal Protection
Krc alleges that his termination from the Foreign Service “deprived [him] of the equal protection of the law in violation of the Fifth Amendment.” Specifically, Krc contends that the USIA discriminated against him on the basis of “his sexual orientation and conduct, factors that have no relationship to [his] ability to perform the duties of a Foreign Service officer or to his trustworthiness and loyalty to the United States.” After reviewing the record and the Secret information submitted in camera, the district court found that the USIA had terminated Krc not on account of his sexual orientation but solely on account of his particular conduct and that the USIA had a rational basis for doing so. The district court therefore granted the USIA‘s motion for summary judgment on the equal protection claim.
In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the Supreme Court outlined the showing that a plaintiff must make in order to prove intentional discrimination. Although Price Waterhouse itself was a Title VII sex discrimination suit, the way in which the Court allocated the burden of proof there applies equally to all claims of employment discrimination. See, e.g., Pontarelli v. Stone, 930 F.2d 104, 114 (1st Cir.1991) (Price Waterhouse applies to
In this case, it is clear that the USIA would have terminated Krc from the Foreign Service on the basis of his conduct, i.e., regardless of his sexual orientation. Therefore, we need not determine whether Krc‘s homosexuality in fact played a substantial role in the employment decision, nor whether it would have been rational for the USIA to have relied upon his homosexuality in terminating him from the Foreign Service (as opposed to restricting him to assignments in countries where homosexuality is not unlawful or perhaps even opprobrious, cf. Padula v. Webster, 822 F.2d 97, 104 (D.C.Cir.1987)).
It is beyond genuine dispute that the USIA would have terminated the Foreign Service appointment of an officer who had heterosexual escapades with the military attache of a neutral country and with nationals of a Communist country. Such behavior reflects appallingly poor judgment and virtually invites an approach from a hostile intelligence service. Although Dowling testified that Krc‘s sexual activity probably gave rise to the Secret information, Krc alleges that the facts recounted in the Secret information actually arose prior to his sexual dalliances in Yugoslavia, and we assume, as we must, that the plaintiff‘s
Moreover, Krc can point to no pattern, or even instance, of USIA disciplinary action to suggest that the agency discriminated against him in his security review on account of his homosexuality. Indeed, the evidence demonstrates that the USIA responds to sexual indiscretions—both homosexual and heterosexual—on a case-by-case basis, and evaluates the totality of the circumstances in deciding how to respond. Thus, in the four instances of record in which an FSO admitted to having engaged in homosexual conduct either with a non-Communist foreign national or with another FSO, the USIA imposed no sanction. The record does not contain an exact heterosexual analogue to Krc‘s case, i.e., in which the agency had information about a heterosexual FSO similar to the Secret information about Krc and in which the heterosexual FSO had relations with persons who might well be used as informants or be vulnerable to blackmail, such as the Communist nationals and the neutral military attache with whom Krc was involved. In the closest cases of record, of which there are four, an FSO had had a hetero-
The simple fact is that Krc‘s conduct portrayed abysmal judgment and exacerbated the security concerns induced by the Secret information. Therefore, it is most unlikely that the USIA would have posted him abroad regardless of his sexual orientation. An FSO who cannot serve abroad is a contradiction in terms. Accordingly, Krc was not denied equal protection of the law.
B. Interference with Prospective Employment Prospects
Krc alleges that by advising the DISCO that it had developed “adverse information” about him, the USIA prevented him from pursuing another employment opportunity and intentionally interfered with his prospective employment opportunities and business advantage. In his complaint Krc requested both injunctive and monetary relief, but he subsequently withdrew all claims for monetary damages.
Although a claim for monetary damages would clearly be barred by sovereign immunity, see
The district court also held, in the alternative, that the USIA was entitled to summary judgment because its answer to the DISCO‘s inquiry regarding adverse information relevant to Krc‘s security clearance “was no more than an accurate response.” We agree. “[T]here is a general duty not to interfere intentionally with another‘s reasonable business expectancies of trade with third parties ... unless the interference is not improper under the circumstances.” Art Metal, 753 F.2d at 1154-55 (quoting RESTATEMENT (SECOND) OF TORTS § 766 comment b (1979)). The USIA‘s action was clearly “not improper under the circumstances.” The USIA is authorized to disclose “relevant data” to “duly authorized security agencies” regarding “significant security information in the file of a USIA employee.” 55 Fed.Reg. 31963 (August 6, 1990).
Furthermore, “adverse information” clearly had come to light subsequent to issuance of Krc‘s security clearance: the USIA had learned that he had had sexual relations with the military attache of a
C. Reprisal
Krc claims that the USIA refused to approve him for an excursion tour in Czechoslovakia in retaliation for his grievance, and thereby restrained, harassed, or otherwise interfered with Krc and his career, in violation of
The alleged reprisal occurred after Krc‘s Foreign Service appointment had been terminated. Although a current member of the Foreign Service may file a grievance for an “action alleged to be in the nature of reprisal,”
In withholding an administrative remedy from a former FSO alleging reprisal, it appears that the Congress intended also to deny him a judicial remedy. The Supreme Court considered a similar situation in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). There the Court held that by precluding administrative review of dismissals of employees in the excepted service, the Civil Service Reform Act “displays a clear congressional intent to deny the excluded employees ... judicial review ... for personnel action[s] covered by” the CSRA. Id. at 447. See also Block v. Community Nutrition Institute, 467 U.S. 340, 347, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984) (holding that Agricultural Marketing Agreement Act, which provides for administrative review at the instance of milk handler affected by a milk marketing order but not at the instance of consumer so affected, by implication precludes consumer from obtaining judicial review of order).
Like the CSRA, the Foreign Service Act provides “a comprehensive system for reviewing personnel action[s] taken against federal employees.” Fausto, 484 U.S. at 455; see also Senate Report No. 96-913, reprinted in 1980 U.S.Code Cong. & Admin.News 4419 (“Foreign Service Act is intended to be a companion measure” to the CSRA). Yet the Act clearly precludes an administrative grievance by a former FSO alleging reprisal. As in the CSRA, these factors “combine to establish a congressional judgment that [a former FSO] should not be able to demand judicial review” for a reprisal claim. See id. at 448.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is
Affirmed.
WALD, Circuit Judge, dissenting in part:
When this case was before us earlier, we said quite specifically that the United States Information Agency‘s (“USIA“) decision not to clear Jan Krc for foreign assignments—the critical determination that led directly to his discharge from the Foreign Service—stemmed from Krc‘s sexual orientation, not from any lack of judgment evinced by his sexual conduct: “Although Bernard Dowling, USIA‘s Director of Security, felt that Krc‘s ‘conduct [in Yugoslavia] ... showed poor judgment and lack of discretion,’ Dowling decided not to approve future overseas postings for Krc because of his belief that Krc‘s ‘homosexuality would make him an extremely likely security target for hostile intelligence approaches.‘” United States Information Agency v. Krc, 905 F.2d 389, 394 (D.C.Cir. 1990) (emphasis added; brackets and ellipsis in original) (quoting January 11, 1985
On this go-around, my colleagues, reviewing the decision of the district court on one of those claims, i.e., that the USIA violated Krc‘s rights under the equal protection component of the Fifth Amendment by dismissing him because of his homosexuality, now inexplicably take an entirely different view of why he was discharged. On the basis of essentially the identical record before us the first time, see USIA Brief at 13 n. 8 (acknowledging that USIA did not present district court with new material after remand), they find not only that Krc‘s homosexuality was not the reason for the USIA‘s negative security appraisal and eventual discharge of Krc, but also that it is “beyond genuine dispute,” see Court Opinion (“Ct. Op.“) at 1215, that Krc‘s sexuality was not even a reason, i.e., that his sexual orientation was entirely superfluous to the USIA‘s determination that he was a security risk. That is, even if the fact of Krc‘s homosexuality played some role in the USIA‘s decisionmaking, it did not cause Krc‘s discharge because, undisputedly, Krc‘s indiscreet sexual conduct combined with “undisclosed” secret information about him (information that USIA security personnel admit would not by itself justify the action taken against Krc) would have compelled the USIA‘s Office of Security to reject him for all foreign assignments. See id. This startling re-reading of the record results in the defeat of any tenable equal protection claim by Krc because it denies him the benefit of a trial in which he might seek to prove that a substantial and necessary factor in his discharge was in fact his sexual orientation.1
The majority‘s new causal conclusion flatly contradicts our earlier finding that Krc‘s discharge was not based on misconduct because it was based on his sexual orientation. I would have thought that finding came close to, if indeed it did not actually qualify as, the law of the case; certainly it should have been enough to preclude us from finding on the basis of essentially the same record the exact opposite as proven beyond any genuine factual dispute for purposes of summary judgment.2
I find it difficult to comprehend how the record can be read to show other than that Krc has mustered more than sufficient evidence to clear the summary judgment threshold, i.e., a showing that there are material facts in dispute. For now, I will highlight only a portion of the factual evidence in the record that must defeat the majority‘s finding of no genuine dispute about the nonhomosexuality related cause of Krc‘s discharge. Bernard Dowling, the USIA‘s Director of Security, explained his own decision not to approve Krc for postings abroad by alluding specifically to Krc‘s homosexuality—the fact that Krc had been “open” about his sexual orientation to Yugoslavs as well as the fact that homosexual conduct was illegal in many countries. Neither fact, of course, is at all related to Krc‘s specific sexual conduct while in Yugoslavia. Additionally, Krc proffered sworn testimony that another member of the USIA‘s Security Office said that Krc‘s “problem” was not just his specific sexual conduct, but also his “sexual preference,” a “type of behavior” the Foreign Service does not “condone.” Finally, several other witnesses stated in depositions that, months after Krc‘s termination, Dowling, the sole decisionmaker in this case, suggested during an official training seminar that he considered homosexuality per se a disqualification for employment in the Foreign Service. This evidence and more, spelled out below, go far beyond the minimal showing of disputed fact necessary to make summary judgment on the causal issue of Krc‘s discharge totally unjustified.3
I.
Jan Krc, a naturalized American born in (what was then) Czechoslovakia, received a limited appointment as an officer candidate in the Foreign Service in 1982. The official policy of the Foreign Service considers an applicant‘s sexual practices—heterosexual or homosexual—relevant only to the extent they reflect on the applicant‘s character or
In 1983, after completing basic training, Krc was assigned to work with the USIA in (again, what was then) Yugoslavia. Krc took leave in December of that year to visit relatives in Czechoslovakia and Hungary. Upon his return to Yugoslavia, “secret”4 information concerning him came to the attention of the USIA‘s Security Office in Washington. Embassy officials in Yugoslavia discussed that information with Krc several times in early 1984. During those sessions, however, Krc was never questioned about his sexual conduct; in fact, Krc was told that the embassy was not concerned with “finding out who[m] [he] was sleeping with.” Krc was also assured that the “secret” information did not reflect poorly on him, and he continued his normal routine of duties.
Krc‘s posting expired in the summer of 1984. On returning to Washington, he was “debriefed” by Robert Reinhold, a USIA security officer. During that session, Krc was queried for the first time by the USIA about his sexual orientation. When Krc forthrightly told Reinhold he was homosexual, that bare acknowledgement, in Reinhold‘s own words, constituted “testimony against interest.” Reinhold then questioned Krc extensively about his homosexual conduct; Krc told him that he had engaged in brief sexual relationships with other Foreign Service officers, two Yugoslavs, and a Swedish foreign officer.5
Krc‘s statements to Reinhold led directly to two separate attempts formally to separate him from the Foreign Service. First, the USIA‘s Office of Personnel sought to terminate Krc because of his “misconduct which demonstrates insubordination, irresponsibility, poor judgment, and lack of discretion.” In an October 3, 1984 letter to Krc, Angie Garcia, the Director of USIA‘s Office of Personnel, announced that the reason for Krc‘s proposed discharge was that he had disobeyed a fraternization policy prohibiting sexual conduct with Communist country nationals, in this case, Yugoslavs. However, after Krc demonstrated to Garcia that the fraternization policy communicated to him in Yugoslavia proscribed only “deep emotional involvements“—not casual sexual relations of the sort Krc had engaged in—the USIA quickly backed off its proposal to terminate Krc‘s appointment. On December 11, 1984, Garcia wrote a letter to Krc stating that, as a result of her own research and Krc‘s presentation, she had decided that the evidence would not support his termination from the Foreign Service. In lieu of a discharge, Garcia gave Krc the proverbial slap on the wrist: for Krc‘s “poor judgment and indiscretion,” he received a letter of reprimand that would be expunged from his file after, at most, two years.
Thinking the matter closed, Krc then bid on and was selected for a position in the Philippines. On January 11, 1985, however, before Krc could report to his new post, Dowling sent a memorandum to Garcia stating that Krc‘s “homosexuality” made him a likely target for hostile intelligence approaches and thus he would not be “approved” for any foreign assignments. To support that risk appraisal, Dowling‘s memorandum relied not only on Krc‘s sexual conduct, but also on the fact that he had
Soon after his separation from the Foreign Service, Krc filed a claim with the FSGB. After a full-scale hearing, that body found no nexus between the considerations highlighted by Dowling or the “secret” information and the interests of national security. Accordingly, it ordered Krc restored to his Foreign Service position. The USIA then sought review of the FSGB order in the district court; Krc counterclaimed for enforcement of the order. He also alleged that his dismissal was in violation of his due process and equal protection rights and that later actions by the USIA constituted interference with prospective employment. The district court, finding that the FSGB had no authority to review the USIA‘s security clearance determinations, set aside the FSGB‘s decision and denied all of Krc‘s counterclaims.
On appeal, we affirmed the district court in its vacation of the FSGB order because we found that Krc‘s termination was grounded in Dowling‘s security concerns, which, in turn, were based on Krc‘s homosexuality per se, not on any lack of judgment shown by Krc‘s particular conduct. See 905 F.2d at 394. Since, as noted, the FSGB had jurisdiction only over discharges based on allegations of “misconduct,” we believed the USIA‘s decision, “even if ... unjustified,” id., was not within the FSGB‘s purview.
At the same time, however, we remanded the case to the district court for further consideration of, among other things, Krc‘s claim that the USIA‘s reliance on his homosexuality in its security appraisal violated his equal protection rights. See id. at 399-400.
II.
The district court‘s decision granting summary judgment against Krc on the equal protection question is before us now.8 My colleagues conclude that, even assuming the USIA did consider Krc‘s homosexuality in its security appraisal, the “appalling” lack of judgment demonstrated by his sexual conduct abroad combined with the undisclosable “secret” material in the sealed record made Krc‘s discharge justifiable to the USIA. See Ct. Op. at 1214-16. In other words, under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), Krc‘s homosexuality did not cause his dismissal because, given the significance of his sexual conduct and the “secret” material, there can be no dispute that the USIA would have terminated Krc regardless of his sexual orientation; any reliance the security officials might have placed on Krc‘s sexual orientation was, in the USIA‘s mind, clearly superfluous in light of these other overpowering concerns. See id. at 244-45 (under Title VII, once a plaintiff shows that an impermissible criterion played a substantial role in an employment decision, employer bears burden of showing that factor did not cause the employment decision “by proving that [the employer] would have made the same decision even if it had not allowed [the impermissible factor] to play such a role“); id. at 276-77 (O‘Connor, J., concurring in the judgment) (same). That conclusion is decisive because if Krc‘s
But the majority simply cannot deliver in its attempt to wring its orientation-neutral causation finding out of this record. Krc has provided far more than the minimal amount of evidence necessary to put the real cause for his termination in dispute. See supra pages 1218-19 (discussing the relatively light burden a nonmoving party faces to prevent summary judgment on an issue on which the moving party bears the burden of proof). First, he has raised a significant question as to whether the USIA would ever have probed into his sexual conduct at all if he had not openly acknowledged his homosexuality. The timing of the USIA‘s actions against him lends support to his argument. It was Krc‘s disclosure of his sexual orientation to Reinhold—a disclosure that Reinhold himself termed “against interest“—that triggered the USIA‘s interest in the specifics of Krc‘s sexual conduct (and the homosexual conduct of other Foreign Service officers whom Krc could “finger,” see supra note 5). Up to that point, even after the “secret” information came to the USIA‘s attention, security officials, still acting under the affirmative belief that Krc was heterosexual, indicated a notable disinterest in “who[m] [Krc] was sleeping with.” Thus, the record certainly permits—and may indeed compel—the inference that, absent Krc‘s acknowledgement of his homosexuality, the USIA would have continued its lack of concern with Krc‘s private sex life. And, without the provocation of such an interest, Krc obviously would never have been fired because of any alleged lack of judgment with regard to those sexual activities.
In this respect, the case is similar to Woodward v. United States, 871 F.2d 1068 (Fed.Cir.1989), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990). There, the Navy obtained summary judgment from the Claims Court on an equal protection claim brought by a discharged gay ensign after showing that review of the ensign‘s performance record would have led to discharge regardless of his sexuality. See id. at 1071. But the Federal Circuit rejected this reasoning because, even if the Navy‘s assertions were uncontested, it was the plaintiff‘s acknowledgement of his homosexuality that spurred the review that led to his discharge.9 See id. at 1073-74 (“The facts are clear that ensigns with low rankings were not referred to the reviewing office for reassignment or release. Only because of his homosexuality was Woodward referred for review and, it was, in part, the basis for his release from active duty.“); see also Buttino v. FBI, 801 F.Supp. 298, 304 (N.D.Cal.1992) (where investigation was undertaken after plaintiff acknowledged homosexual conduct, it was reasonable to conclude that “the very investigation resulting in plaintiff‘s termination would ... not have been undertaken if plaintiff were not gay“). The facts here require the same result: since there is real dispute as to whether the inquiry into Krc‘s sexual conduct would have occurred absent his acknowledgement of homosexuality, the record does not support the majority‘s finding that there is no question of fact that he would have been treated the same way if he were not gay, i.e., if he were an active heterosexual who had engaged in several brief liaisons with fellow officers and Communist country nationals.
Moreover, even if Krc‘s sexual conduct might have come to light in any case, the record certainly does not support the inference—essential to the majority‘s conclusion—that the Office of Security would have found the “secret” information—which Dowling himself admits would not by itself warrant action against Krc—and the “poor” judgment shown by Krc‘s conduct by themselves to compel the drastic penalty of discharge. See Price Waterhouse, 490 U.S. at 252 (to rebut showing
I have again reviewed Mr. Krc‘s security file, particularly his actions at his last overseas post. As you know, he submitted a signed statement to the Office of Security on August 21, 1984 wherein he admitted engaging in homosexual relationships with eight different men, including two citizens of Yugoslavia while he was serving in Belgrade, Yugoslavia. By engaging in such conduct, he not only showed poor judgment and lack of discretion, he also committed acts which we feel make him a security risk in any foreign service assignment. Specifically, he admitted that he had been open about his homosexuality with a number of other Yugoslav nationals with whom he socialized, including those who would obviously be relied upon as informants by hostile intelligence services. Therefore, to allow Mr. Krc to serve in an overseas capacity would be an intolerable security risk since his homsexuality [sic] would make him an extremely likely target for hostile intelligence approaches. Also, in some seventy foreign countries homosexual acts are illegal and punishable by law. Therefore, by [sic] simply engaging in homosexual activity while overseas would place him in violation of the laws of most foreign countries thus further increasing his vulnerability to hostile approaches. Consequently, I will not approve any foreign service assignment of Mr. Krc because of the strong security risk involved.
My colleagues apparently think that Dowling‘s references to the problems caused by Krc‘s “openness” about his homosexuality10 with Yugoslavs and the illegality of homosexuality abroad are gratuitous, and Dowling‘s “real” reason—the one sufficient in his mind to justify the discharge all by itself—is the one that he mentions first, the indiscretion shown by Krc‘s specific “homosexual relationships.” See Ct. Op. at 1214.
But, in granting or reversing a summary judgment, a court cannot simply pick from the menu the most delectable item for its legal theory. Here, the majority cannot select one strand of Dowling‘s three-pronged explanation and conclude that that arguably neutral factor—and I emphasize that it is not even clear that Dowling would have found heterosexual relationships akin to Krc‘s homosexual relationships to evince a similar lack of judgment—was alone or in combination with the “secret” material a sufficient reason to the USIA for Krc‘s discharge. Whether those reasons would have rationally supported Krc‘s discharge is not the issue here. The issue here is whether there is conflicting evidence in the record as to whether the judgment shown by Krc‘s sexual conduct together with the otherwise innocuous “secret” information were, in the USIA‘s view, adequate reasons for Krc‘s discharge or whether Krc‘s homosexuality played a necessary role in that decision. See Price Waterhouse, 490 U.S. at 252 (“An employer may not ... prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.“); id. at 261 (O‘Connor, J., concurring in the
Thus, in deciding that it is “perfectly clear that the USIA would have terminated Krc‘s Foreign Service appointment based solely upon the legitimate reasons it gave,” Ct. Op. at 1215, n. *, the majority, despite protestations to the contrary, necessarily pulls out the one arguably legitimate strand from the USIA‘s multifactored explanation and decides that that factor was, beyond dispute, enough in the USIA‘s view to discharge Krc. Moreover, my colleagues’ conclusion that this point is “perfectly clear” is not based on a cache of overwhelming contemporaneous record evidence showing that the USIA thought Krc‘s conduct alone sufficiently egregious to warrant discharge—indeed, their conclusion is not bolstered by any contemporaneous record evidence on that point. Rather, my colleagues have simply made their own post hoc surmise as to what must have motivated the USIA years ago, corroborated by at best a few pieces of equivocal evidence about the USIA‘s decisions in other cases allegedly involving sexual conduct. See Ct. Op. at 1214-16; see also infra pages 1225-26 (discussing those other cases).
But even if Dowling‘s express reliance on Krc‘s homosexuality, by itself, were not enough to create a genuine question of fact about causation, there is additional direct and circumstantial evidence about the agency‘s reasons for terminating him and, more generally, about its attitude toward homosexuality. One witness swore that a member of the USIA‘s Security Office told her that Krc‘s “problem” was not just his behavior, but also his “sexual preference.” See also Doe v. Gates, 981 F.2d 1316, 1323 (D.C.Cir.1993) (opinion of Sentelle, J.) (“[T]o cast more than metaphysical doubt [and thus survive summary judgment on the defendant‘s denial of the existence of a policy to discriminate against homosexuals, the plaintiff] should at least have provided some direct evidence of someone having knowledge of that policy asserting it to exist....“). Three other witnesses attested to statements by Dowling made at an official training session held months after Krc‘s termination suggesting he believed that no homosexuals should be sent abroad by the USIA. One of these witnesses testified that Dowling said that all USIA officers found to be gay are “sent back to America.” Another recalled: “[Dowling] said there were three kinds of people or three types—I don‘t remember the exact words— whether he said acceptable or they did not want ... in the foreign service: Drug addicts, alcoholics, and homosexuals.”12 And Dowling himself said on the record that all USIA Foreign Service applicants should be asked whether they have ever engaged in homosexual acts because, in his words, that question “has serious security connotations.”
As aforementioned, our own prior reading of the record is in accord with a view of the evidence that Krc‘s homosexuality was
That resolution should presumably be the law of the case, binding us in later phases of the litigation absent the possibility of a “grave injustice.” See, e.g., Lever Brothers Co. v. United States, 981 F.2d 1330, 1332 (D.C.Cir.1993) (quoting Laffey v. Northwest Airlines, Inc., 642 F.2d 578, 585 (D.C.Cir.1980)). For, in deciding whether or not Krc‘s termination was based on “misconduct,” and thus whether the FSGB had jurisdiction over Krc‘s case,
we necessarily concluded as a matter of law that the record would reasonably support no conclusion other than that Krc‘s homosexuality was the cause of his discharge. See 905 F.2d at 394 (stating that “[t]he record presents little reason to question” Garcia‘s statement that Krc‘s termination was “not a disciplinary or performance-based action“); see also supra note 2 (noting that even if discharges based on “conduct” that is not “misconduct” are also outside FSGB jurisdiction, that distinction is not relevant because our prior decision found that the USIA‘s decision was based on Krc‘s sexual orientation).14
But even if our earlier finding on this issue would not preclude a later factfinder from reaching a different conclusion after a trial in which witnesses’ credibility could be evaluated and conflicting evidence weighed, at the very least it evidences that the record is open to a plausible reading of the USIA‘s motivation for discharging Krc other than the one my colleagues now find to be so obvious as to merit summary judgment. Cf. Doe, 981 F.2d at 1325 (Randolph, J., concurring in part and concurring in the judgment) (where Supreme Court had read the record in a specific way, even if the Court‘s “opinion in this regard is not the law of the case, it is something sufficiently similar to warrant our respect“).
The only conceivable support in the record for my colleagues’ new reading is the supposedly even-handed treatment given to homosexual and heterosexual officers in other cases investigated by the USIA‘s Office of Security. See Ct. Op. at 1215. Even taking my colleagues’ characterization of these cases at face value, they do not fatally undermine Krc‘s claim. His claim is that he was dismissed because he was gay; not that the USIA dismisses or discriminates against all gay officers. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 n. 14, 97 S.Ct. 555, 564 n. 14, 50 L.Ed.2d 450 (1977) (“[A] consistent pattern
In any case, the cases of discharged officers cited by my colleagues hardly provide the kind of slam-dunk proof that merits summary judgment. The four instances they refer to involving heterosexuals who had security clearances lifted involved sexual conduct that was of a different order and nature from Krc‘s behavior. In one case, a married officer fathered his secretary‘s child and had sexual relations with a prostitute from an East Bloc country. In two other cases, officers (one married) violated explicit fraternization policies by having affairs with Communist nationals.15 And, in the fourth case, a married domestic employee had sex with prominent nationals of foreign countries.
And contrary to my colleagues’ assertion, see Ct. Op. at 1214-15, there is also evidence from other security determinations that supports Krc‘s claim that homosexuality per se played a role in this case. After expressing his opinion that the risk of sending an acknowledged homosexual overseas was “unacceptable,” Dowling ultimately denied a security clearance to one gay applicant who was never alleged to have engaged in any indiscreet sexual behavior in part because, in Dowling‘s words, his “admitted homosexual conduct, ... in an uncontrolled overseas environment may reasonably be expected to subject him to scrutiny and/or entrapment by hostile intelligence services.”16 See also Letter of September 1987 from Bernard C. Dowling to Unidentified Applicant (explaining to same denied applicant that the delay in reaching a decision in his case “centered around your admitted homosexuality and your consequent vulnerability, from the standpoint of security, in an uncontrolled overseas environment where hostile intelligence services operate“). Thus, it is clearly a matter of dispute whether other employment decisions at the USIA have been affected by the perceived security effects of homosexuality per se.
CONCLUSION
Three years ago we returned this case to the district court with an admonition to listen to Krc‘s equal protection claim with an attentive ear: “[These types of] constitutional claims may well be the only check on agency actions that determine a person‘s career fortunes. Courts have an obligation to listen to those claims clearly and to consider them carefully. We urge the district court to consider our remand in this light.” 905 F.2d at 400 (emphasis in original; internal citation omitted). On remand, no new evidence was considered; no new witnesses listened to; summary judgment was awarded on a factual basis rejected by this court in the prior appeal. Now, my colleagues, on a new theory of the case based on an old record, seemingly close their eyes to significant direct evidence
On that basis, I dissent.
NOFZIGER COMMUNICATIONS, INC., a District of Columbia Corporation, Appellant, v. Frederick P. BIRKS, as Trustee of the Wynmark Trust, Respondent.
No. 91-7186.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 4, 1992. Decided April 13, 1993.
Before MIKVA, Chief Judge; EDWARDS and HENDERSON, Circuit Judges.
Philip L. Sbarbaro, Washington, DC, with whom Lawrence H. Schwartz, Washington, DC, was on the brief, for appellant. Christopher A. Meyers, Lawton, OK, also entered an appearance for appellant. Philip M. Schwartz, with whom Stephen D. Graeff, Washington, DC, was on the brief, for appellee.