Scott v. Macy, No. 18483.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BAZELON, , and BURGER and McGOWAN, Circuit
• Citation: 349 F.2d 182
• Parties: Bruce C. SCOTT, Appellant, v. John W. MACY, Jr., Chairman, United States Civil Service Commission, et al., Appellees.
• Docket Number: No. 18483.
• Decision Date: 16 June 1965

349 F.2d 182 (1965)

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

No. 18483.

United States Court of Appeals District of Columbia Circuit.

Argued December 17, 1964.

Decided June 16, 1965.

Mr. David Carliner, Washington, D. C., with whom Mr. David Isbell, Washington, D. C., was on the brief, for appellant.

Mr. Martin R. Hoffmann, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Gil Zimmerman, Asst. U. S. Attys., were on the brief, for appellees.

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

BAZELON, Chief Judge.

Following competitive examinations for Federal civil service employment, appellant was notified in February 1962 that he had qualified for "personnel positions"

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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,¹ stated that he was "not specifically charged with a law violation" in 1951, and refused to comment on the alleged homosexuality because he did "not believe the Question is pertinent in so far as job performance is concerned."

On May 16, 1962, the Commission "disqualified appellant for employment in the competitive service because of immoral conduct."² He then requested a "specification of how, when and where he had allegedly conducted himself immorally so that he may adequately answer the broad, indefinite allegation of `immoral conduct' * * *."³ The Commission'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."⁴ The argument is too broad. "It does not at all follow that because the Constitution does not guarantee a right to public employment, the Government may resort to any scheme for keeping people out of such employment. Law cannot reach every discrimination in practice. But doubtless unreasonable discrimination * * * would not survive constitutional challenge."⁵ As this court has said, "One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law."⁶

Appellant is an applicant for public employment, and thus may have less statutory protection against exclusion than an employee.⁷ But he is not without constitutional

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protection.⁸ The Constitution does not distinguish between applicants and employees; both are entitled, like other people, to equal protection against arbitrary or discriminatory treatment by the Government. The Executive may have discretion in hiring or firing, but "discretionary power does not carry with it the right to its arbitrary exercise." Shachtman v. Dulles, 96 U.S.App. D.C. 287, 290, 225 F.2d 938, 941 (1955)

The Commission excluded appellant from public employment because it concluded that he had engaged in "immoral conduct."⁹ With this stigma, the Commission not only disqualified him from the vast field of all employment dominated by the Government¹⁰ but also jeopardized his ability to find employment elsewhere. The stigmatizing conclusion was supported only by statements that appellant was a "homosexual" and had engaged in "homosexual conduct."¹¹ These terms have different meanings for different people.¹² They therefore require some specification.¹³ The Commission

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must at least specify the conduct it finds "immoral"¹⁴ and state why that conduct related to "occupational competence or fitness,"¹⁵ especially since the Commission's action involved the gravest consequences. Appellant's right to be free from governmental defamation requires that the Government justify the necessity for imposing the stigma of disqualification for "immoral conduct."¹⁶

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.¹⁷

McGOWAN, Circuit Judge (concurring).

I join in the result reached by Judge Bazelon solely for what seem to me to be the inadequacies, in terms of procedural fairness, of the notice given to appellant of the specific elements constituting the "immoral conduct" relied upon as disqualifying him for all federal employment. The consequences of this result I take to be as follows: The District Court's grant of summary judgment to appellees is reversed; and, in the light of the reason for this reversal, it is appropriate for a judgment to be entered which has the effect of restoring appellant to his original status, that is to say, one who has met the competitive examination requirements for certain grade levels and who, absent any further action by the Civil Service Commission to disqualify him, is eligible to be considered for employment by the employing agencies. This status obviously does not assure him of any federal employment; and the Commission is, of course, free to initiate

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such further action as it chooses to exclude him from eligibility even for consideration, subject as always to appropriate procedural standards. The substantive issues which might conceivably emerge from the record developed at such a proceeding are not presently before us, and are not now to be anticipated

Disqualification from consideration for all federal employment is not, in my view, a status which can arbitrarily be imposed upon any citizen. I think it was arbitrary, on this record, for appellant to be disqualified for "immoral conduct" and to be told, in response to his request for a specification, only that he had engaged in "homosexual conduct." It is true, as the dissent points out, that appellant came perilously close to abandoning this claim to lack of adequate notice, but I do not read the record as showing that this brink was ever finally crossed. The waiver is said to have occurred at the time of appellant's final appeal to the Commission, but, although appellant there displayed a patent preoccupation with what he conceived to be a transcending issue of principle implicit in his case, this is a common failing of litigants, especially those who are representing themselves, as was appellant at that time.

Even here, however, he reiterated his right to know exactly what he was supposed to have done which caused him to be disqualified. There are allegations embodying this issue in the complaint in the District Court; and, in the appellees' own statement of material facts in support of their motion for summary judgment, it is averred that appellant had requested specification of his "immoral conduct" in his appeal from the Division of Adjudication and that, in his appeal to the Commission, "while not abandoning his claim that he was entitled to a resume of the adverse information * * * he essentially devoted his final appeal to the contention that it is error for the Commission to rule that homosexuals are unsuitable for appointment. * * *" (Emphasis supplied.) Neither in the District Court nor in this court did appellees think it wise to fail to meet on the merits this procedural issue of lack of adequate notice; and counsel for appellant in this court, although apparently sharing appellant's concern with the broader aspects of the case, remained true to his professional instincts by not submerging completely his client's interest in having a job in the larger and more venturesome quest of a principle of general application. Alternative contentions are the familiar stuff of the law, and I am not prepared to say that this record falls outside this pattern.

Upon the assumption (which may or may not be correct) that the Executive Branch can freely dismiss employees from the federal service except as limited by express provision of statute or regulation, it is said that it must be a fortiori privileged to refuse employment to a mere applicant therefor. As does this formulation, so do I put the Constitution to one side for present purposes, not because I have ever been able to grasp the precise implications of the ancient axiom that there is no constitutional right to public employment, but because I do not read the relevant statute and regulation as contemplating the procedure followed here in disqualifying appellant. Both statute and regulation are phrased in the most general terms, and they certainly imply a wide area of discretion on the part of federal employers in choosing among applicants. But the broad letter of 5 U.S.C. § 631 is far from inconsistent with a Congressional purpose that "each candidate" who "seeks to enter" federal employment shall have a fair opportunity to assert his "fitness," both affirmatively and by way of opportunity to know of, and to defend against asserted personal...