Bruce C. Scott v. John W. MacY Jr., Chairman, United States Civil Service Commission
121 U.S. App. D.C. 205 · 1965 U.S. App. LEXIS 5238 · 349 F.2d 182
June 16, 1965 · Docket 18483
Headnotes
Generated summaries- Headnote 165.14.7 Public and Administrative Law > Public Employment, Civil Service, and Merit Systems Interface Law > Public Employee Due Process Interface Law49.17.6 Labor and Employment Law > Public Sector Employment Law > Public Employee Due Process Law
The Court held that the Commission’s vague label of “homosexual conduct” without detailed description violated the applicant’s liberty interest in federal employment.
- Headnote 2
A disqualification based on “immoral conduct” must be rationally related to the applicant’s fitness for federal service; a determination founded solely on an undefined label such as “homosexual conduct” fails rational‑basis review.
The Court declared that the Commission may not rely on vague labels and must show a rational connection between the conduct and occupational competence.
- Headnote 3
The Commission’s disqualification of an applicant on the ground of "immoral conduct" must be accompanied by a clear statement of what conduct is deemed immoral and why it relates to occupational fitness.
- Headnote 4
The Commission’s finding that the applicant engaged in "homosexual conduct" without specifying the acts fails to satisfy the requirement of a particularized allegation of immoral behavior.
- Headnote 5
Even though the applicant declined to discuss his alleged homosexuality, the record shows he never relinquished his claim that the Commission must specify the conduct charged against him.
- Headnote 6
Both applicants and employees are protected against arbitrary governmental discrimination; a finding of "immoral conduct" must be rationally related to job competence.
- Headnote 7
5 C.F.R. § 752.202(a) requires an agency to give at least thirty days’ advance written notice that states all reasons, specifically and in detail, for a proposed adverse employment action.
The regulation also mandates that the employee be afforded a reasonable opportunity to answer the allegations in writing or personally.
- Headnote 8
The regulation provides that an applicant may be denied examination or appointment for criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.
- Headnote 9
The statute’s purpose is to ensure that any regulations used to evaluate applicants promote efficiency and assess character, health, knowledge, and ability.
- Headnote 10
The district court’s grant of summary judgment was reversed because the record showed a contested question about the adequacy of the notice provided to the applicant.
- Headnote 11
The Commission’s reliance on an undefined label such as “homosexual conduct” failed to satisfy the constitutional requirement that an applicant know the exact conduct alleged and be able to contest it.
- Headnote 12
An agency’s finding that an applicant’s conduct is “immoral” must be rationally related to the applicant’s fitness for federal service; a determination based solely on an undefined label fails rational‑basis review.
The Court held that the Commission’s conclusion that homosexual conduct was immoral was not sufficiently linked to occupational competence or fitness, rendering the disqualification arbitrary.
- Headnote 13
5 C.F.R. § 2.106 authorizes disqualification of civil‑service applicants for “criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.”
The Commission relied on this regulation when it labeled the appellant’s alleged homosexual conduct as “immoral” and thus a disqualifying ground.
- Headnote 14
5 C.F.R. § 752.202 requires that an applicant receive at least thirty days’ advance written notice stating all reasons, specifically and in detail, for any proposed adverse action, and be given a reasonable opportunity to answer.
The notice requirement is intended to give the applicant a chance to rebut or explain the alleged conduct before a final disqualification is made.
- Headnote 15
The district court’s grant of summary judgment was reversed because the record showed a real dispute over the adequacy of the Commission’s notice to the appellant.
- Headnote 16
The Court emphasized that the Constitution does not distinguish between applicants and employees; both are entitled to equal protection against arbitrary governmental action.
- Headnote 17
The Court held that a vague label such as “homosexual conduct” does not satisfy the constitutional demand for notice, and the agency must specify the exact acts it deems immoral before denying employment.
- Headnote 18
The Commission’s disqualification of Scott was based only on the label “homosexual conduct.” The Court held that vague labels do not satisfy the constitutional requirement of particularized notice and an opportunity to be heard.
- Headnote 19
The Commission’s label of “homosexual conduct” was deemed too vague; due‑process requires notice that identifies the conduct and explains its relevance to occupational fitness.
- Headnote 20
The Court applied this standard in assessing whether the Commission’s reliance on homosexual conduct was arbitrary, citing precedent on rational‑basis analysis.
- Headnote 21
The Constitution does not distinguish between applicants and employees; arbitrary exclusion of an applicant violates the equal‑protection component of the Fifth Amendment due‑process clause.
- Headnote 22
The Commission disqualified Scott for "immoral conduct" based only on the label "homosexual conduct" without detailing the acts alleged, violating the constitutional requirement of particularized notice.
- Headnote 23
The district court’s grant of summary judgment was reversed because the record showed a dispute over the specificity of the Commission’s notice to Scott.
- Headnote 24
The Commission relied on this regulation as the statutory basis for labeling Scott’s alleged homosexual conduct as immoral and disqualifying him.
- Headnote 25
Under 5 C.F.R. § 752.202(a)–(b), an employee (or applicant by analogy) must receive at least 30 days’ advance written notice stating all reasons, specifically and in detail, for the proposed adverse action and be given a reasonable opportunity to answer.
The regulation requires that the agency set out the precise reasons for disqualification and allow the individual to respond personally or in writing before the action is finalized.
- Headnote 26
The Court held that the Commission’s reliance on an undefined label without showing how it affects occupational competence was insufficient under rational‑basis review.
- Headnote 27
The Court noted that while the government may have discretion in hiring, that discretion is limited by the requirement that decisions not be arbitrary or discriminatory.
- Headnote 28
The Court found Scott’s disqualification based solely on the label "homosexual conduct" to be arbitrary because the Commission offered no specific description linking the conduct to job fitness.
Opinion
Following competitive examinations for Federal civil service employment, appellant was notified in February 1962 that he had qualified for “personnel positions” at grade levels GS-9, 11 and 12, subject to further investigation. In April 1962, he appeared before a Civil Service investigator, who requested explanation regarding a 1947 arrest for “loitering,” a 1951 arrest “for investigation,” and “information [in the Civil Service Commission’s possession] indicating that you are a homosexual.” Appellant explained the circumstances of the 1947 arrest,
On May 16,1962, the Commission “disqualified [appellant] for employment in the competitive service because of immoral conduct.”
mission’s Board of Appeals and Review responded only that “the record disclosed convincing evidence that you have engaged in homosexual conduct, which is considered contrary to generally-recognized and accepted standards of morality. * * * ” After exhausting his administrative remedies, appellant unsuccessfully attacked the Commission’s action in the District Court. This appeal followed.
Appellant has standing to challenge his exclusion from public employment. The Government’s contrary argument is that “there is no basic right to public employment; stated another way, the power of appointment — absent statute or regulation — is exclusively within the prerogative of the Executive.”
Appellant is an applicant for public employment, and thus may have less statutory protection against exclusion than an employee.
The Commission excluded appellant from public employment because it con-eluded that he had engaged in “immoral conduct.”
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.
. Appellant’s explanation was as follows:
“At Lafayette Square Men’s Room, I was picked up by a police officer. After asking questions I would not answer, he had me charged with lortering [sic.] There was a man in the Men’s Room who was behaving in an odd manner. I found I was unable to urinate and stepped outside to wait for him to come out. I went back in about ten minutes later and this fellow was still in the Men’s Room in the same odd position (leaning over the urinal with his hand propped against the wall). The Police officer followed me in and when I was leaving he said he wanted to talk with me.”
. The Commission relied on Civil Service Regulations, 5 C.F.R. § 2.106 (1961 ed.):
“Disqualifications of applicants.
“(a) Grounds for disqualification.
An applicant may be denied examination and an eligible may be denied appointment for any of the following reasons:
* * * * #
“(3) Criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct;”
. Judge McGowan’s opinion clearly shows that appellant did not abandon this request either before the Commission or this court.
. Brief for appellee, p. 6.
. Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 725, 71 S.Ct. 909, 915, 95 L.Ed. 1317 (1951) (concurring opinion). See Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961).
. Homer v. Richmond, 110 U.S.App.D.C. 226, 229, 292 F.2d 719, 722 (1961).
. See, e.g., 5 U.S.C. § 652 (1958), regarding procedural requirements for removal or suspension from classified civil service; 5 C.F.R. § 731.302(a), that after one
. See Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); In re Summers, 325 U.S. 561, 571, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945) ; United Public Workers of America v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Hunter v. McLaughlin, 102 U.S.App.D.C. 293, 252 F.2d 857 (1958); Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). In Joint Anti-Fascist Refugee Committee v. McGrath, Mr. Justice Jackson, concurring, stated: “The fact that one may not have a legal right to get or keep a government post does not mean that he can be adjudged ineligible illegally. Perkins v. Elg [307 U.S. 325, 349, 59 S.Ct. 884, 83 L.Ed. 1320].” 341 U.S. 123, 185, 71 S.Ct. 624, 655, 95 L.Ed. 817 (1951).
. It is not necessary to decide whether the Commission may exclude an applicant for public employment without giving reasons since a reason was given; thus we must face the issue of the sufficiency of that reason. Compare, e.g., Perkins v. Elg, supra, note 8; Shachtman v. Dulles, 96 U.S.App.D.C. 287, 225 F.2d 938 (1955).
. Compare, e.g., Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).
. Appellant’s 1947 and 1951 arrests for “loitering” and “investigation” in no way establish ‘immoral conduct” Even assuming that conduct considered immoral by the police was involved in the arrests, it does not appear that convictions, or even forfeiture of collateral, followed. Compare Pelicone v. Hodges, 116 U.S. App.D.C. 32, 320 F.2d 754 (1963).
. The Senate Subcommittee which investigated “Employment of Homosexuals and Other Sex Perverts in Government,” stated:
“It was determined that even among the experts there existed considerable difference of opinion concerning the many facets of homosexuality and other forms of sex perversion. Even the terms ‘sex pervert’ and ‘homosexual’ are given different connotations by the medical and psychiatric experts. [S. Doe. No. 241, 81st Cong., 2d Sess. 2 (1950).]
Compare Thompson, Changing Concepts of Homosexuality in Psychoanalysis, 10 Psychiatry: Journal op the Biology and Pathology op Interpersonal Relations 183 (1947):
“The term ‘homosexual’ as used in psychoanalysis has come to be a kind of wastebasket into which are dumped all forms of relationships with one’s own sex. The word may be applied to activities, attitudes, feelings, thoughts, or repression of any of these. In short, anything which pertains in any way to a relationship, hostile or friendly, to a member of one’s own sex may be termed homosexual.”
See generally Donnelly, Goldstein & Schwartz, Criminal Law 137-201 (1962).
. Unlike the present case, specific immoral acts were clearly alleged and admitted in Dew v. Halaby, 115 U.S.App. D.C. 171, 317 F.2d 582 (1963), cert. dismissed pursuant to Rule 60 of the Supreme Court rules, after settlement by agreement of the parties, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 550 (1964). Dew was discharged as a Federal Aviation Agency control tower operator because of “at least four [admitted] unnatural sex acts with males, some of them for pay” and “smoking marijuana cigarettes on at least five [admitted] occasions.” 115 U.S.App.D.C. at 172, 317
. Precise allegations of the conduct in question would also give an applicant an opportunity, not afforded in this case, to explain or contradict the allegations. There is no suggestion in this record that specific allegations of misconduct were withheld to protect confidential informants, and we need not decide whether such purpose might justify the Commission’s refusal to give details of alleged misconduct. Cases involving security dismissals based on undisclosed information, such as Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 (1950), affirmed, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352 (1951), are not applicable here.
. Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). In that case, a state requirement that teacher applicants disclose all association memberships was set aside because the state had failed to show the legitimate relationship of such disclosure to occupational qualifications sufficiently to justify the resulting inhabition of associational freedom. In United Public Workers of America v. Mitchell, 330 U.S. 75, 101, 67 S.Ct. 556, 570, 91 L.Ed. 754 (1947), the Court stated, “For regulation of employees it is * * * necessary that the act regulated be * * * reasonably deemed * * * to interfere with the efficiency of the public service.” See Vitarelli v. Seaton, 359 U.S. 535, 542-543 & n. 5, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 238-239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Reich, The Neio Property, 73 Yale L.J. 733, 782 (1964).
. Compare Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951); Shelton v. Tucker, supra, note 13; Bland v. Connally, 110 U.S.App.D.C. 375, 293 F.2d 852 (1961); Cf. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 898-899, 81 S.Ct. 1743, 6 L.Ed. 2d 1230 (1961).
. See Perkins v. Elg, 307 U.S. 325, 350, 59 S.Ct. 884, 83 L.Ed. 1320 (1939).