822 F.2d 97 (D.C. Cir. 1987), 86-5053, Padula v. Webster

Docket Nº:86-5053.
Citation:822 F.2d 97
Party Name:, 2 Indiv.Empl.Rts.Cas. 454 Margaret A. PADULA, Appellant, v. William WEBSTER, Director, F.B.I.
Case Date:June 26, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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822 F.2d 97 (D.C. Cir. 1987)

, 2 Indiv.Empl.Rts.Cas. 454

Margaret A. PADULA, Appellant,


William WEBSTER, Director, F.B.I.

No. 86-5053.

United States Court of Appeals, District of Columbia Circuit

June 26, 1987

Argued March 16, 1987.

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Jeffrey J. Kanne, with whom Susan W. Shaffer, Washington, D.C., was on brief, for appellant.

Freddi Lipstein, Atty., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty. and Barbara L. Herwig, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellee.

Before BORK and SILBERMAN, Circuit Judges and MARKEY, [*] Chief Judge, United States Court of Appeals for the Federal Circuit.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellant Margaret A. Padula alleges that the Federal Bureau of Investigation ("FBI" or "Bureau") refused to employ her as a special agent because of her homosexuality, in violation of both Bureau policy and the equal protection guarantee of the Constitution. Ruling on a motion for summary judgment, the district court rejected both these challenges, concluding that the hiring decision was committed to the FBI's discretion by law and did not infringe upon appellant's constitutional rights. We affirm.


The FBI's policy towards employing homosexuals has been in some flux. Eight years ago, the Bureau formally represented to this court that it "has always had an absolute policy of dismissing proven or admitted homosexuals from its employ." Ashton v. Civiletti, 613 F.2d 923, 926 (D.C.Cir.1979). Two months later, FBI Director Webster issued a somewhat different formulation of the Bureau's position toward homosexuality:

Now we treat it as a factor, and I must say in candor, it's a significant factor. It's a troublesome thing; I hope that the particular case will be handled with fairness and justice and I hope that at some point we will have a better understanding of the problem and the policy that should be addressed to it.

Id. at 927 n. 5.

Several law schools, concerned with possible discrimination toward their homosexual students during the job recruitment season, requested clarification of the FBI's policy. John Mintz, an Assistant Director of the FBI and the FBI's Legal Counsel, assumed responsibility for answering these queries. On July 31, 1980, he wrote to Professor Marina Angel of the Temple University School of Law that:

The FBI's focus in personnel matters has been and continues to be on conduct rather than status or preference and we carefully consider the facts in each case to

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determine whether the conduct may affect the employment. At the same time, we recognize individual privacy rights of applicants and employees.

In other letters to law school officials, Mintz stated that "individual sexual orientation, whether homosexual or heterosexual, may involve secret conduct that is relevant to employment in the FBI in that it increases employee susceptibility to compromise or breach of trust." He added, however, that "we are confident that the FBI has not engaged in improper discrimination regarding sexual orientation." Mintz also assured one law school dean that administrative action is taken not "simply because of ... sexual orientation" but homosexual conduct is a significant factor in such decisions. When pressed for clarification, Mintz conceded that

in fairness ... based upon experience, I can offer no specific encouragement that a homosexual applicant will be found who satisfies all of the requirements.... In any event, each case is reviewed independently for an objective determination of suitability.

In the summer of 1982, Padula applied for a position as a special agent with the FBI. On the basis of a written examination and an interview, the FBI ranked her 39th out of 303 qualified female applicants and 279th out of 1273 male and female applicants. Following these screening tests, the FBI conducted a routine background check. In addition to revealing favorable information about the applicant's abilities and character, the background investigation disclosed that appellant is a practicing homosexual. At a follow-up interview, Padula confirmed that she is a homosexual--explaining that although she does not flaunt her sexual orientation, she is unembarrassed and open about it and it is a fact well known to her family, friends and co-workers.

On October 19, 1983, the Bureau notified Padula that it was unable to offer her a position; her subsequent attempt to obtain reconsideration of the decision was denied. It was explained to her that her application had been evaluated in the same manner as all others, but had been rejected due to intense competition. Seventeen months later, Padula filed suit in the United States District Court for the District of Columbia. She alleged the FBI's decision not to hire her was based solely on the fact that she was a homosexual and that this decision violated the Bureau's "stated policy" not to discriminate on the basis of an applicant's sexual orientation. She also charged that the decision violated her constitutional rights to privacy, equal protection and due process under the first, fourth, fifth and ninth amendments to the Constitution.

In a memorandum opinion and order issued on November 15, 1985, the district court granted the FBI's motion for summary judgment. The court found that the FBI had not adopted a binding policy regarding the hiring of homosexuals and that it therefore was free to determine on a case-by-case basis whether to hire a particular homosexual applicant. In reaching this decision, the court examined various FBI memoranda and letters unearthed by Padula during discovery. Addressing the constitutional claim, the court found that the challenged classification of homosexuals need only satisfy a "minimum standard of rationality," a standard the court held was "clearly met in this case."

On appeal, we address two issues: first, whether the appointment decisions of the FBI are subject to judicial review in the absence of reliance upon constitutionally impermissible factors, and second, whether the alleged classification of homosexual applicants violated the equal protection mandate of the Constitution. 1


The Administrative Procedure Act ("APA") establishes a general presumption of reviewability: a person "suffering a legal wrong because of agency action ... is entitled to judicial review thereof." 5 U.S.C. Sec. 701(a) (1982). But, the Act recognizes

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two situations where this presumption does not hold: where a statute precludes judicial review, 5 U.S.C. Sec. 701(a)(1), or where agency action is committed to agency discretion by law, 5 U.S.C. Sec. 701(a)(2). The FBI contends that its hiring decisions are shielded from review by both these exceptions. We agree that the challenged hiring decision is sheltered from APA review by the second exception and therefore do not reach the statutory preclusion issue. 2

Under the "committed to agency discretion by law" exception to the presumption of reviewability, even if Congress has not affirmatively barred review, review will not be had "if no judicially manageable standards are available for judging how and when an agency should exercise its discretion." Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). Judicially manageable standards may be found in formal and informal policy statements and regulations as well as in statutes, but if a court examines all these possible sources and concludes that there is, in fact, "no law to apply," judicial review will be precluded. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)); Doe v. Casey, 796 F.2d 1508, 1517 (D.C.Cir.1986), cert. granted, --- U.S. ----, 107 S.Ct. 3182, 96 L.Ed.2d 671.

Padula concedes that the Bureau's employment practices have been traditionally unreviewable--Congress has consistently exempted the FBI from statutory schemes governing the civil service 3--and that there is no meaningful statutory standard against which to judge the FBI's exercise of discretion. See, e.g., Carter v. U.S., 407 F.2d 1238, 1242 (D.C.Cir.1968). She argues, however, that the FBI limited its own discretion by adopting a binding policy regarding the hiring of homosexuals--a policy that purportedly barred the Bureau from refusing to hire an employee on the basis of homosexuality unless the particular applicant's sexual conduct would adversely affect his or her employment responsibilities. Padula maintains that this policy, which was disclosed in various public statements and letters issued from the Bureau, provides us with "law to apply," thus making the FBI's refusal to hire her reviewable.

It is well settled that an agency, even one that enjoys broad discretion, must adhere to voluntarily adopted, binding policies that limit its discretion. Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 972, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 345 U.S. 363, 372, 77 S.Ct. 1152, 1156, 1 L.Ed.2d 1403 (1957). In determining whether an agency's statements constitute "binding norms," we traditionally look to the present effect of the agency's pronouncements. Statements that are merely prospective, imposing no rights or obligations on the respective parties, will not be treated as binding norms. American Bus Ass'n v. U.S., 627 F.2d 525, 529 (D.C.Cir.1980). We also examine whether the agency's statements leave the agency free to exercise its discretion. Pronouncements that impose no significant restraints on the agency's discretion are not regarded as binding norms. As a general rule, an agency pronouncement is transformed into a binding norm if so intended by the agency. Doe v. Hampton, 566 F.2d 265, 281-82 (D.C.Cir.1977), and agency intent, in turn, is "ascertained by an...

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