Norton v. Macy, 21625.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 417 F.2d 1161
• Docket Number: No. 21625.,21625.
• Parties: Clifford L. NORTON, Appellant, v. John MACY et al., Appellees.
• Decision Date: 01 July 1969

417 F.2d 1161 (1969)

Clifford L. NORTON, Appellant, v. John MACY et al., Appellees.

No. 21625.

United States Court of Appeals District of Columbia Circuit.

Argued January 13, 1969.

Decided July 1, 1969.

Petition for Rehearing Denied October 20, 1969.

Mr. Glenn R. Graves, with whom Mr. John W. Karr, Washington, D. C., was on the brief, for appellant.

Mr. James G. Greilsheimer, Atty., Department of Justice, of the bar of the Supreme Court of New York, pro hac vice, by special leave of court, for appellees. Asst. Atty. Gen. Edwin L. Weisl, Jr. at the time the brief was filed, Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty. at the time the brief was filed, John C. Eldridge and Robert E. Kopp, Attys., Department of Justice, were on the brief, for appellees. Mr. Julius A. Johnson, Asst. U. S. Atty., also entered an appearance for appellees.

Before BAZELON, Chief Judge, WRIGHT and TAMM, Circuit Judges.

BAZELON, Chief Judge:

Appellant, a former GS-14 budget analyst in the National Aeronautics and Space Administration (NASA), seeks review of his discharge for "immoral conduct" and for possessing personality traits which render him "unsuitable for further Government employment." As a veterans preference eligible, he could be dismissed only for "such cause as will promote the efficiency of the service."¹ Since the record before us does not suggest any reasonable connection between the evidence against him and the efficiency of the service, we conclude that he was unlawfully discharged.

I

Appellant's dismissal grew out of his arrest for a traffic violation. In the early morning of October 22, 1963, he was driving his car in the vicinity of Lafayette Square. He pulled over to the curb, picked up one Madison Monroe Procter, drove him once around the Square, and dropped him off at the starting point. The two men then drove off in separate cars. Two Morals Squad officers, having observed this sequence of events, gave chase, traveling at speeds of up to 45 miles per hour. In the parking lot of appellant's Southwest Washington apartment building, Procter told the police that appellant had felt his leg during their brief circuit of Lafayette Square and had then invited him to appellant's apartment for a drink. The officers arrested both men² and took them "to the Morals Office to issue a traffic violation notice."

Pending issuance of the traffic summons, the police interrogated appellant and Procter for two hours concerning their activities that evening and their sexual histories. Meanwhile, pursuant to an arrangement, the head of the Morals Squad telephoned NASA Security Chief Fugler, who arrived on the scene at 3:00 a. m. in time to hear the last of the interrogation. Fugler was then shown the officers' confidential arrest record and was permitted to monitor incognito a 20-minute interrogation of appellant held especially for his benefit. Throughout, appellant steadfastly denied that he had made a homosexual advance to Procter.

At last, appellant was given his traffic summons. Fugler then identified himself to appellant and invited him down to NASA for a talk. There, in a second-floor office of the deserted "Tempo L" building, Fugler and a colleague interrogated him until after 6:00 a. m. During this interrogation, appellant allegedly conceded that he had engaged in mutual masturbation with other males in high school and college, that he sometimes experienced homosexual desires while drinking, that on rare occasions he had undergone a temporary blackout after drinking, and that on two such occasions he suspected he might have engaged in some sort of homosexual activity. He also said that he had experienced a blackout when he met Procter, recalling only that he had invited the man up for a drink.

Subsequently, in his formal reply to a notice of proposed dismissal, appellant specifically denied that he was a homosexual, that he had made an indecent advance to Procter, and that he had knowingly engaged in any homosexual activity during his adult life. Procter, however, confirmed in a written statement the story he gave the police at the time of his arrest and stated that "it would take an idiot not to be able to figure that he appellant wanted to have sex act on me." Procter said he had never seen appellant before that night.

NASA concluded that appellant did in fact make a homosexual advance on October 22, and that this act amounted to "immoral, indecent, and disgraceful conduct." It also determined that on the basis of his own admissions to Fugler, even as subsequently clarified, appellant possesses "traits of character and personality which render him * * unsuitable for further Government employment." A Civil Service Appeals Examiner and the Board of Appeals and Review upheld these conclusions. In appellant's action for reinstatement, the District Court granted appellee's motion for summary judgment.

II

Congress has provided that protected civil servants shall not be dismissed except "for such cause as will promote the efficiency of the service." The Civil Service Commission's regulations provide that an appointee may be removed, inter alia, for "infamous * * *, immoral, or notoriously disgraceful conduct"³ and for "any * * other disqualification which makes the individual unfit for the service."⁴ We think — and appellant does not strenuously deny — that the evidence was sufficient to sustain the charge that, consciously or not, he made a homosexual advance to Procter. Accordingly, the question presented is whether such an advance, or appellant's personality traits as disclosed by the record, are "such cause" for removal as the statute requires.

The Fifth Circuit Court of Appeals recently refused to consider a substantive attack on a dismissal for private homosexual conduct, apparently believing that it had no authority to review on the merits a Civil Service determination of unfitness.⁵ The courts have, it is true, consistently recognized that the Commission enjoys a wide discretion in determining what reasons may justify removal of a federal employee;⁶ but it is also clear that this discretion is not unlimited. The Government's obligation to accord due process sets at least minimal substantive limits on its prerogative to dismiss its employees: it forbids all dismissals which are arbitrary and capricious.⁷ These constitutional limits may be greater where, as here, the dismissal imposes a "badge of infamy,"⁸ disqualifying the victim from any further Federal employment, damaging his prospects for private employ, and fixing upon him the stigma of an official defamation of character.⁹ The Due Process Clause may also cut deeper into the Government's discretion where a dismissal involves an intrusion upon that ill-defined area of privacy which is increasingly if indistinctly recognized as a foundation of several specific constitutional protections.¹⁰ Whatever their precise scope, these due process limitations apply even to those whose employment status is unprotected by statute.¹¹ And statutes such as the Veterans' Preference Act were plainly designed to confer some additional job security not enjoyed by unprotected federal employees. As we recently observed in a closely related context,

The requirement that there be "cause" for discharge imposes higher duties on the Government-as-employer than merely abstaining from violation of constitutional rights, a requirement that gives no substantive content to the statute * * *.¹²

Accordingly, this court has previously examined the merits of a dismissal involving a statutorily protected employee charged with off-duty homosexual conduct.¹³ In other cases, we have recognized that, besides complying with statutory procedural requirements, the employer agency must demonstrate some "rational basis" for its conclusion that a discharge "will promote the efficiency of the service."¹⁴ "The ultimate criterion is whether the employer acted reasonably * * *."¹⁵ As we summarized in Leonard v. Douglas,¹⁶

Congress did not attempt a definition of "cause," providing only that it must be one that would promote the efficiency of the service. Some latitude was thus left to those responsible for administering the Act. Faithfulness to its purpose to reward those who served in the armed forces by granting a protective preference must be maintained. But the preference granted does not protect a veteran in a position when removal therefrom, viewed in the light of competing policies and all the circumstances, can reasonably be said to lead to increased efficiency in * * * governmental operations.¹⁷

III

Preliminarily, we must reject appellee's contention that once the label "immoral" is plausibly attached to an employee's off-duty conduct, our inquiry into the presence of adequate rational cause for removal is at an end. A pronouncement of "immorality" tends to discourage careful analysis because it unavoidably connotes a violation of divine, Olympian, or otherwise universal standards of rectitude. However, the Civil Service Commission has neither the expertise nor the requisite anointment to make or enforce absolute moral judgments, and we do not understand that it purports to do so. Its jurisdiction is at least confined to the things which are Caesar's, and its avowed standard of "immorality" is no more than "the prevailing mores of our society."¹⁸

So construed, "immorality" covers a multitude of sins. Indeed, it may be doubted whether there are in the entire Civil Service many persons so saintly as never to have done any act which is disapproved by the "prevailing mores of our society." Analytical philosophers would distinguish between acts conventionally regarded as morally wrong and acts which are disapproved merely as indecent, repulsive, or unesthetic; but if the Commission makes such a distinction, it is of no benefit to employees, who may assertedly be dismissed for "indecent and disgraceful" conduct as well as for "immora...