Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality, 83-7

• Decision Date: 11 March 1983
• Docket Number: 83-7
• Citation: Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality, 7 Op. O.L.C. 46, 83-7 (Op. O.L.C. Mar 11, 1983)
• Parties: Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

7 Op. O.L.C. 46

Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality

No. 83-7

United States Department of Justice

March 11, 1983

Theodore B. Olson Assistant Attorney General Office of Legal Counsel

Termination of an Assistant United States Attorneyon Grounds Related toHis Acknowledged Homosexuality

An Assistant United States Attorney (AUSA), a federal employee in the "excepted" service, may not be terminated solely on the basis of his homosexuality, in the absence of a reasonable showing that his homosexuality has adversely affected his job performance.

The burden would be on the Department of Justice to demonstrate a nexus between the AUSA's homosexuality and an adverse effect on his job performance.In this case, it is doubtful whether the Department could meet its burden, because the AUSA has consistently received superior ratings and has been granted a security clearance.Although it may be argued that a prosecutor who violates a state criminal law prohibiting homosexual acts demonstrates a disrespect for the law inconsistent with the Department's standard of prosecutorial conduct, the Department would have difficulty establishing the required nexus as a matter of law, because the state law is only enforced against public conduct.

MEMORANDUM OPINION FOR THE ASSOCIATE ATTORNEY GENERAL

This responds to your request for advice on the legal implications of failing to retain an Assistant United States Attorney (AUSA) who is an acknowledged homosexual.

As set forth in more detail below, we have concluded that it would be permissible for the Department to refuse to retain an AUSA upon a determination that his homosexual conduct would because it violates state criminal law, adversely affect his performance by calling into question his and, therefore, the Department's, commitment to upholding the law.We must advise, however, that the facts in this case are such that it would be very difficult under existing judicial decisions to prove that there is a nexus between his conduct and an adverse effect on job performance.Because the burden of proof would be on the Government to prove that such a nexus exists once the AUSA has established that he was dismissed for homosexual conduct, we would suggest consultations with the Civil Division and the Office of Personnel Management(OPM) before making a final decision not to retain a person under these circumstances.Both the Civil Division and OPM have informally expressed concern over our ability to defend successfully any suit that might be filed.[ 47]

The AUSA in question has freely admitted his sexual preference and that he has engaged in and intends to continue to engage in private consensual homosexual conduct.As we understand the facts, the only reason the Department would not retain the AUSA is because of his homosexual conduct, and that reason would, under the Department regulations, be reflected in the letter of termination.We also assume that the letter would note that homosexual acts are a crime under law of the state in which the AUSA is stationed, and that the Department believes that any such violations of local criminal law reflect adversely on the AUSA's fitness to represent the Government as a prosecutor.^[1]

I.Limitations on Terminating an AUSA

AUSAs are in what is known as the "excepted service."5 U.S.C. § 2103(a).The Attorney General's authority to remove them, see28 U.S.C. § 542(b), ^[2] is tempered however, in several ways, two of which are relevant here: statute and OPM regulation.^[3]The statute and regulation that protect AUSAs from prohibited personnel practices are 5 U.S.C. § 2302(b)(10)andOPM/FPMSupp. 731-1.subchap. 3-2(a)(3)(c).[ 48]

A.Statutory and Regulatory Constraints

The decision not to retain the AUSA may be made for any number of reasons — for example, budget factors or employment ceilings — but it may not be made for a reason prohibited by statute or regulation.The Department is prohibited by statute

from discriminat[ing] . . . against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.

5 U.S.C. §2302(b)(10).^[4] In addition, OPM has issued guidelines covering suitability for employment in the federal government.^[5] Although applicants for employment in the excepted service may be disqualified if they engage in "infamous, . . . immoral or notoriously disgraceful conduct, "5 C.F.R. § 302.203, the courts have held that neither the status of being a homosexual nor homosexual conduct which does not adversely affect job performance falls within this provision.In reversing a decision by the Civil Service Commission(now OPM) to disqualify an applicant for employment because of alleged immoral conduct, the U.S. Court of Appeals for the District of Columbia Circuit said over fifteen years ago:

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.

Scott v. Macy,349 F.2d 182, 185(D.C. Cir.1965).^[6] As a result of cases such as this, e.g., Norton v. Macy,417 F.2d 1161(D.C. Cir.1969);Society for Individual Rights v. Hampton,63 F.R.D. 399(N.D. Ca.1973), ajfd on other grounds,528 F.2d 905(9th Cir.1975);andBaker v. Hampton,6 Empl. Prac. Dec.(CCH) I 9043 (D.D.C. 1973), OPM issued a Bulletin on December 21, 1973, placing the following gloss on the regulation:

[Y]ou may not find a person unsuitable for Federal employment merely because that person is a homosexual or has engaged in homosexual acts, nor may such exclusion be based on a conclusion that a homosexual person might bring the public service [ 49] into public contempt.You, are, however, permitted to dismiss a person or find him or her unsuitable for Federal employment where the evidence establishes that such person's homosexual conduct affects job fitness — excluding from such consideration, however, unsubstantiated conclusions concerning possible embarrassment to the Federal Service.

Ashton v. Civiletti,613 F.2d 923, 927(D.C. Cir.1980)(quoting Bulletin).In November 1975, OPM issued FPM Supplement 731-1, Determining Suitability for Federal Employment.Subchapter3-2(a)(3)(c), which discusses infamous or notoriously disgraceful conduct, states:

Court decisions require that persons not be disqualified from Federal employment solely on the basis of homosexual conduct.OPM and agencies have been enjoined not to find a person unsuitable for Federal employment solely because that person is a homosexual or has engaged in homosexual acts.Based upon these court decisions and outstanding injunction[s], while a person may not be found unsuitable based on unsubstantiated conclusions concerning possible embarrassment to the Federal Service, a person may be dismissed or found unsuitable for Federal employment where the evidence establishes that such person's sexual conduct affects job fitness.

Thus, it is improper to deny employment to or to terminate anyone on the basis either of sexual preference or of conduct that does not adversely affect job performance.In short, there must be a reasonable showing that the homosexual conduct adversely affects the job performance.

B.Case Law

1.The Nexus Test

An examination of recent case law indicates that the burden is on the Government to demonstrate that the AUSA's homosexual conduct has adversely affected or will adversely affect his performance or that of others, and that it will be difficult for the Government to do so. Hoska v. United States, 677 F.2d 131, 136-38(D.C. Cir.1982).The U.S Court of Appeals for the District of Columbia Circuit has articulated four ways in which homosexual conduct might adversely affect job performance: (1) if it jeopardizes the security of classified information through potential blackmail; (2) if it constitutes evidence of an unstable personality unsuited for certain kinds of work; (3) if it causes the employee to make offensive overtures at work; or (4) if it constitutes the basis of "notorious" activities that trigger negative reactions from fellow employees or the public.Norton v. Macy,417 F.2d 1161, 1166(D.C. Cir.1969).^[7][ 50] As in Norton,we believe that it be difficult for the Department to convince a court that the particular employee at issue failed any of these tests.Id. at 1166.^[8] Given his record, it would appear that the only way his ability to function successfully might be jeopardized would be through hostility from the public or his fellow workers, but there is no evidence of any negative reactions.Nor is the AUSA, as an overt homosexual apparently considered to be a security risk through a blackmail threat.The Department has given him a security clearance, and there is no evidence that the AUSA has an unstable personality: rather, his work is described as consistently superior.His current supervisor has stated that the AUS A's work continues to be excellent, and there are no allegations that he has made offensive overtures at work.^[9]We are not aware of any evidence that he has engaged in the kind of notorious conduct that was found to be sufficient for termination in Singer v. United States Civil Service Comm'n,530 F.2d 247(9th Cir.1976), vacated and remanded,429 U.S. 1034(1981), andChilders v. Dallas Police Dep't,513 F.Supp. 134, 140-42(N.D. Tex.1981).^[10] Rather, the AUSA has apparently been so discreet that the fact of his homosexuality came as a surprise to his superiors.Like the employee in Norton, the AUSA could successfully argue that he is a satisfactory worker who suffered an adverse employment action because of a...