Scott v. Macy

• Decision Date: 11 September 1968
• Docket Number: No. 20841.,20841.
• Citation: 402 F.2d 644
• Parties: Bruce C. SCOTT, Appellant, v. John W. MACY, Jr., Chairman, U. S. Civil Service Commission, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

402 F.2d 644 (1968)

Bruce C. SCOTT, Appellant, v. John W. MACY, Jr., Chairman, U. S. Civil Service Commission, et al., Appellees.

No. 20841.

United States Court of Appeals District of Columbia Circuit.

Argued October 23, 1967.

Decided September 11, 1968.

Mr. David Carliner, Washington, D. C., with whom Messrs. Jack Wasserman and Ralph Temple, Washington, D. C., were on the brief, for appellant.

Mr. Michael C. Farrar, Atty., Department of Justice, of the bar of the Supreme Court of Connecticut, pro hac vice, by special leave of court, with whom Acting Asst. Atty. Gen. Carl Eardley, Messrs. David G. Bress, U. S. Atty., and John C. Eldridge, Atty., Department of Justice, were on the brief, for appellees. Messrs. Richard S. Salzman and Alan S. Rosenthal, Attys., Department of Justice, also entered appearances for appellees.

Before BAZELON, Chief Judge, and BURGER and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge:

Appellant, an applicant for federal employment who has passed the competitive examinations, is before us for the second time in his effort to set aside a disqualification imposed upon him by the Civil Service Commission. In Scott v. Macy, 121 U.S.App.D.C. 205, 349 F.2d 182 (1965), we reviewed the Commission's debarment of appellant from all employment in the federal service "because of immoral conduct."¹ A majority of the court were of the view that this action could not be sustained upon the record before us, and we directed that a judgment be entered which would have the effect of restoring appellant to the status of one eligible to be considered for federal employment, absent any further valid action by the Commission to accomplish his absolute disqualification. The Commission has purported to take such further action, but, for the reasons appearing hereinafter, we find it unavailing.

I

Appellant's initial disqualification "because of immoral conduct" was founded upon a 1947 arrest for "loitering," a 1951 arrest "for investigation," and undisclosed "information indicating that you are a homosexual." Not long after our decision, appellant was confronted with a Civil Service Commission investigation report which set forth (1) the 1947 arrest, (2) the 1951 arrest, (3) statements alleged to have been made by appellant to a former supervisor when he was in state employment that he was a homosexual, that he had been "perverted" since youth, and that he lived with a "lover," and (4) that appellant had stood mute when a neighbor had characterized him as a homosexual. Upon the basis of these four matters, appellant was asked the question: "In view of the information which has been cited above, do you now deny that you have engaged in homosexual acts?"

Appellant made a detailed response in writing. He set forth at length the circumstances of the 1947 and 1951 arrests, denying any homosexual acts or purposes in connection therewith and pointing out that no prosecutions had resulted from these arrests. He denied that he had ever characterized himself to his former supervisor as "perverted" or as having had a "lover." He asserted that, in the case of the neighbor's characterization of him as a homosexual, he had felt no obligation under the circumstances to respond. In respect of the final question as to whether he now denied ever having engaged in homosexual acts, appellant challenged the Commission's right to ask it for various reasons, including invasion of a right to privacy, and a lack of relationship between the question and fitness to perform work.

Upon this investigation report and appellant's response to it, the Commission made a second determination of disqualification. The basic adjudication is in the form of a letter dated March 11, 1966, to appellant from the Chief of the Division of Adjudication, the critical portion of which is set forth in the margin.² Appellant appealed this ruling within the Commission. At the first intra-agency appellate level, a letter from the Director of the Bureau of Personnel Investigations advised that "the derogatory information obtained during the investigation which was communicated to you for rebuttal, explanation, or clarification, has not been adequately resolved by any information furnished by you or your counsel so as to enable me to make a finding that you are suitable." Further appeals to the Commission's Board of Appeals and Review, and to the Commission itself, resulted in affirmances stated generally in terms of the apparent absence of grounds for overturning the decision of the Bureau of Personnel Investigations.

In the District Court appellant moved to enforce the mandate of the judgment resulting from our first decision, and asked for an order directing the Commission not to disqualify appellant "for immoral conduct." The Government filed an opposition to this motion (together with a cross-motion for affirmance) which stated that the Commission had made a new determination that "it cannot conclude that appellant meets the prescribed suitability and fitness standards" for the federal service, and that this determination was not in conflict with the earlier mandate. It attached certain exhibits to this opposition, one of which it characterized as the "CSC statement of February 25, 1966 in respect of the unsuitability or unfitness for Government employment of persons who have engaged in homosexual acts."³ By agreement at the hearing of the motion and cross-motion, appellant orally amended his original complaint by adding a second cause of action directed against the Commission's renewed determination of disqualification, and both parties orally moved for summary judgment with respect to it.

The District Court denied appellant's motion to enforce the mandate, and granted appellees' motion for summary judgment. In announcing its decision, the District Court first stated that "this Court holds that the Government has a right to consider a person who actively engages in homosexuality as unfit for Federal employment." It went on to hold, further, that "the replies of appellant to the first four of the items * * * plus the fact that appellant simply refused to answer outright the last question, justified the Government in finding that appellant was not fit for employment by the Government."⁴

II

In this court appellant urged that he had for a second time been disqualified "because of immoral conduct," and that the Commission's action in this respect continued to be defective. The Government, however, insisted that this was a misconception of the Commission's action, and that what had actually happened the second time around was that appellant had been disqualified solely under those provisions of the rules and regulations addressed to the refusal to give testimony.⁵ In defending the Commission's action, the Government disclaimed any reliance whatsoever upon the authority to disqualify "because of immoral conduct," and insisted that the Commission must be judged solely by reference to the basis for its second determination and not to that which underlay its first.

This latter formulation reflects a correct principle of administrative review, and we agree with it.⁶ There is, of course, another accepted principle in this field to the effect that an agency's action must be judicially sustained upon the reason for which it acts, and not by reference to one upon which it might have acted.⁷ And we are unable to say that the Commission acted for the reason assigned by Government counsel on this appeal. The key document is the letter to appellant of March 11, 1966, from the Chief of the Division of Adjudication, the critical language of which appears supra note 2. We note that the only ground of disqualification therein expressly cited and quoted is subparagraph (b) of 5 C.F.R. § 731.021 — the "immoral conduct" ground which was the sole basis of appellant's earlier disqualification. There is no reference to subparagraph (d) of that same regulation (supra note 5), which provides an independent and alternative ground of disqualification for refusal to furnish testimony, and which is the ground the Government now argues was the sole ground upon which the Commission acted.

The language of the letter is needlessly imprecise, certainly by contrast with the ease with which it could have been made crystal clear that, without reference to the "immoral conduct" ground of subparagraph (b), appellant was being disqualified under the explicit authority of subparagraph (d), not because he was believed to have been guilty of "immoral conduct" but because he would not supply information. The letter does refer to appellant's refusal to answer the final question but, in the context, we are quite unable to say with the requisite assurance that this was the exclusive foundation of Appellant's disqualification. It seems to us just as likely, if not more so, that the Bureau of Investigations determined that its enlarged investigation report warranted a renewal of the earlier finding that appellant should be disqualified "because of immoral conduct." Howelse can there be a meaningful explanation of the inclusion of subparagraph (b) and the exclusion of subparagraph (d) in a formal adjudication even though we are now told by counsel after the fact that only the omitted ground was the motivation of the decision?

The Government insists that we measure the Commission's action solely by reference to the uncited subparagraph (d). We are unable to conclude, however, that the Commission's decision did not in fact rest upon a finding of "immoral conduct." Therefore, the current disqualification cannot stand.⁸ Where individual rights of substance turn upon whether the Commission acted for one reason rather than another, we think it not too much to expect that the Commission will not leave its motivations clouded by inexactitude of expression. Civil service investigators are doubtless not unlike the rest of us in being slow to relinquish a conviction of the correctness of an action...