美国法院判决书Termination of an Assistant United States Attorney

Termination of an Assistant United States Attorney on Grounds Related to His 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. March 11, 1983 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)-w-ho 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 determina- tion 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 estab- lished 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 abilitv to defend successfully any suit that might be filed. 46 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 homo- sexual 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.I 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, see 28 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 prohib- ited personnel practices are 5 U.S.C. ?2302(b)(10) and OPM/FPM Supp. 731- 1, subchap. 3-2(a)(3)(c). I We do not address the constitutional validity of such laws. Compare Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982); People v. Onofre, 415 N.E.2d 936 (N.Y. 1980), cert. denied, 451 U.S. 987 (1981); Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980); and State v. Pilcher, 242 N.W.2d 348 (Iowa 1976) with United States v. Lemons, 697 F.2d 832 (8th Cir. 1983); Doe v. Commonwealth's Attorney, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd mem., 425 U.S. 901 (1976); and Stewart v. United States, 364 A.2d 1205 (D.C. Ct. App. 1976). 2 The section states, "Each assistant United States Attorney is subject to removal by the Attorney General." There are no reported cases under this section. Department of Justice regulations provide that attorneys in the excepted service who are being removed are only entitled to a letter of termination. DOJ Order No. 1752.1 A (Apr. 27, 1981). The Order states: GENERAL. The rights of excepted service employees are strictly limited when discipline, including separation, is to be imposed. However, some service employees have the same protec- tions as competitive service employees because of Veterans' Preference or prior competitive status. PROCESSING DISCIPLINE. a. An excepted service employee who is protected under law and the regulations of the Office of Personnel Management [because of veterans' preference] is entitled to the procedures [governing regular civil service employees]. b. An excepted service employee with no protection under law or regulation should be given a letter advising him or her of the action being taken (suspension, separation, etc.) prior to the effective date of the action. Id. at 19, 20. 3 The limitations on the Attorney General's authority may be categorized as: (I) OPM regulations govern- ing employment of those in the excepted service, see 5 C.F.R. Ё 302.101 et seq.; (2) statutes and OPM regulations governing employment of veterans in the excepted service; (3) Department regulations; and (4) any Department handbooks or informal understandings that may establish a reasonable expectation of continued employment. See Ashton v. Civiletti, 613 F.2d 923 (D.C. Cir. 1979). A veteran, 5 U.S.C. ?2108(l)(B), (3)(B), who has served for one year in the excepted service, id. ?7511 (a)(1)(B), is afforded civil service protection, and action may be taken against him "only for such cause as will promote the efficiency of the service." Id. ?7513(a). Whether the Attorney General's authority in 28 U.S.C. ?542(b) prevails over the veterans' preference statute is a-question on which this Office expressed considerable doubt some years ago. Memorandum for William D. Ruckelshaus, Assistant Attorney General, Civil Division from Assistant Attorney General Rehnquist, Office of Legal Counsel (Sept. 10, 1970); Memorandum for Assistant Attorney General Rehnquist from Leon Ulman and Herman Marcuse (Sept. 4, 1970). 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 Indi- vidual Rights v. Hampton, 63 F.R.D. 399 (N.D. Ca. 1973), aff'd on other grounds, 528 F.2d 905 (9th Cir. 1975); and Baker 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 conclu- sion that a homosexual person might bring the public service The statute covers appointments in the excepted service. 5 U.S.C. ?2302(a)(2)(A)(i). (B). AUSA positions do not fall within Schedule C. 5 C.F.R. ?213.3301. and are not, therefore, within any of the exceptions to the coverage of this statute. 5 U.S.C. ?2302(a)(2)(B)(i). 5 OPM administers the regulations governing the civil service. 5 U.S.C. ?I 103(a)(5). The civil service includes the excepted service. 5 U.S.C. ?2101(1). 'After the decision in Scott, the Civil Service Commission again disqualified the applicant, and was again reversed. Scott v. Macy, 402 F.2d 644 (D.C. Cir. 1968). 48 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 consider- ation, however, unsubstantiated conclusions concerning pos- sible 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 Suitabil- ity for Federal Employment. Subchapter 3-2(a)(3)(c), which discusses infa- mous 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 ad- versely 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 evi- dence 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. 49 1969).7 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 AUSA'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), and Childers 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 satisfac- tory worker who suffered an adverse employment action because of a general policy decision." 'Norton involved a veteran who could only be dismissed for "such cause as will promote the efficiency of the service." 5 U.S.C. ?7512(a) (Supp. 1965). The nexus test, however, has been carried over in subsequent cases to disputes involving those in the excepted service. Ashton v. Civiletti, 613 F.2d 923 (D.C. Cir. 1979). Not all circuits use the nexus test. see, e.g.. Vigil v. Post Office Dep't. 406 F.2d 921 ( 10th Cir. 1969). but it is the test employed in the circuits in which it is most likely that the AUSA, if he were so inclined. would bring suit. 8 Norton involved an otherwise competent NASA budget analyst dismissed because of a homosexual advance he made one evening while in a car. 417 F.2d at 1162-63. He was arrested for a traffic violation by members of the Morals Squad who had observed the incident. He was then interrogated about his conduct b5 the Morals Squad and NASA security officers. Although sodomy was a violation of the local law. D.C. Code ?22-3502 (1967), the court did not raise the issue of whether such a violation might automatically establish the nexus. The government's brief did, however, note that sodomy was a crime and that the police had probable cause to arrest Mr. Norton on that charge, although the)y chose not to. Appellee's Brief a; 14 n.9. 31 & n.25, Norton v. Macv, 417 F.2d 1161 (D.C. Cir 1969). Thus, the Court of Appeals implicitly rejected the proposition that conduct violative of the local ordinance was sufficient, standing alone, to establish a nexus between that conduct and the job performance required in Mr. Norton's job. 9See, e.g., Safransky v. State Personnel Board, 215 N.W.2d 379. 381. 385 (Wisc- 1974). 1o Compare Singer, 530 F.2d at 249, 252-55: McConnell v. Anderson, 451 F.2d 193 (8th Cir. 1971), cert. denied, 405 U.S. 1046 (1972): Childers. 513 F. Supp. at 140-41 with Aumiller v. University offDelawarer 434 F. Supp. 1273 (D. Del. 1977). See also Ross v. Springfield School Dist. No. 19. 641 P.2d 600. 608 (Or. Ct. App. 1982) (teacher properly dismissed where public practice of homosexuality rcsulted in "notoriety" ,hich impaired his teaching ability). " In ben Shalom s,. Secretary of Army, 489 F. Supp. 964 (E.D. Wisc. 1980), the court found that the dismissal of an otherwise suitable soldier because of her homosexuality violated the soldier's substantive due process rights under the Fifth Amendment. Id. Given that the soldier had received high marks ,n her military performance, the court found that there was no nexus between her status as homosexual and her suitabilit' ftir service. "It was, therefore, arbitrary. capricious and unreasonable for the Army to conclude that the petitioner was anything other than a 'suitable' soldier under its regulations.- Id. at 977. See also Martinez v. Brown,. 449 F. Supp. 207 (N.D. Ca. 1978) (same; Navy regulations). But see Belier v. Middendorf. 632 F.2d 788 19ih Cir.) (rejecting same analysis when applied to Navy regulation). pet'n for reh 'g en banr denied sub nom. Miller v. Rumsfeld, 647 F.2d 80 (9th Cir. 1980), cert. denied. 452 U.S. 905 (1981). The denial of the petition fir rehearing en banc elicited a long dissent. Miller, 64"1 F.2d at 80-91. 50 We are aware of two cases in which the Government has dismissed homo- sexual employees and defended the dismissals successfully: Singer, supra, and Dew v. Halaby, 317 F.2d 582 (D.C. Cir. 1963), cert. dismissed, 379 U.S. 951 (1964). Dew occurred prior to the issuance of the pertinent OPM regulation. Singer involved the kind of "notorious" conduct faulted in Norton: Mr. Singer was a clerk typist whose work was satisfactory but whose off-duty conduct included kissing and embracing another man on federal property, discussing gay rights on TV shows in which he identified himself as a federal employee, applying for a marriage license to be married to another man, and receiving "extensive" publicity because of his attempt to obtain a marriage license. 530 F.2d at 249. In both Dew and Singer, the Government received adverse public- ity because of the dismissals and eventually reversed its policy, reinstating both employees with back pay. Because the AUSA has stated that he intends to continue to engage in homosexual conduct, and this is now public knowledge, the Department might take the position that an AUSA who habitually engaged in a violation of state criminal law brings discredit upon the Department sufficient to establish the kind of nexus required by current case law. We could argue that the willingness to engage in such acts in violation of local law demonstrates a disrespect for the law that is not consistent with the standard of conduct demanded by the Department of someone who is engaged in prosecuting others for violations of the law. We could also note that the local legal community, represented by the state bar, has condemned at least the public practice of homosexuality. On the other hand, OPM's regulation forbids the federal government from discriminating against those who engage in homosexual conduct, absent a nexus between the conduct and job performance. The AUSA could argue that OPM's regulation forbids the taking into account of state laws, especially if the AUSA would probably not be prosecuted for private consensual homosexual acts under the state's current enforcement policy. OPM was presumably aware in 1973 that homosexuality violated the laws of many states and did not intend its standard an adverse effect on job performance to be met by merely showing that the conduct violates state law. 2. Law Enforcement Exception The only justification in the case law which might support a decision to refuse to retain the AUSA in this context would be to convince the court that private homosexual conduct is, once it is public knowledge, detrimental to the performance of the AUSA's job in states where it violates the criminal law. Proving the nexus between questioned behavior and job performance, espe- cially when the behavior occurs outside the work place, is, however, often difficult.12 Courts seem reluctant to find a nexus if the behavior does not occur 12 See Bonet v. United States Postal Service. 661 F.2d 1071 (5th Cir. 1981) (indictment for child molesta- tion. standing alone, insufficient); Young v. Hampton, 568 F.2d 1253 (7th Cir. 1977) (conviction for drug use, Continued 51 during official work hours, and have stated that it is the agency's obligation to spell out how the conduct will affect performance or promote the efficiency of the service. Phillips v. Bergland, 586 F.2d 1007, 1012-13 (4th Cir. 1978). The most effective way to prove adverse effect on job performance would be to prove that the special nature of a prosecutor's job - his public representa- tion of the entire Department, his duty to uphold the law, and the potential for accusations of hypocrisy for hiring a lawbreaker to enforce the law - requires that there be no taint of criminality. 28 C.F.R. ?45.735-2(a). Some cases have e