Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality ( 1983 )

Termination of an Assistant United States Attorney
on Grounds Related to
His Acknowledged Homosexuality
An A ssistant United States Attorney (AUSA), a federal employee in the “excepted” service, may
not be term inated solely on the basis o f his hom osexuality, in the absence of a reasonable
show ing that his homosexuality h a s adversely affected his jo b performance.
The burden would be on the Department of Justice to demonstrate a nexus between the AUSA’s
hom osexuality and an adverse effect on his jo b performance. In this case, it is doubtful
whether the Departm ent could m eet 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 crim inal law prohibiting homosexual acts demonstrates a
disrespect for the law inconsistent with the D epartm ent’s standard of prosecutorial conduct,
the D epartm ent 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
M em o ran d um O p in i o n fo r the A s s o c ia t e A ttorn ey G eneral
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 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 ability to defend successfully any suit that might be filed.
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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.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, 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).
1 We do not address the constitutional validity o f such laws. Compare Baker v. Wade, 553 F. Supp. 1121
(N.D. Tex. 1982); People v. O nofre, 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
U nited States v. Lem ons, 697 F.2d 832 (8th Cir. 1983), Doe v. C om m onw ealth's Attorney, 403 F. Supp. 1199
(E.D. Va. 1975), a f f d m em ., 425 U.S. 901 (1976); and Stew art v. United States, 364 A.2d 1205 (D .C. Cl.
App. 1976).
2 The section states, “ Each assistant United States Attorney is subject to rem oval by the A ttorney G eneral."
There are no reported cases under this section. Department o f Justice regulations provide that attorneys in the
excepted service w ho are being rem oved are only entitled to a letter o f term ination. DOJ O rder No. 1752.1A
(Apr. 27, 1981). The O rder states:
GENERAL. The rights o f excepted service em ployees are strictly lim ited when discipline,
including separation, is to be imposed H ow ever, some service em ployees have the sam e protec­
tions as com petitive service em ployees because o f V eterans’ Preference or prior com petitive
status.
PROCESSING D ISCIPLIN E, a. An excepted service em ployee who is protected under law and
the regulations o f the O ffice o f Personnel M anagem ent [because o f veterans' preference] is
entitled to the procedures fgovem ing regular civil service employees].
b. An excepted service em ployee with no protection under law or regulation should be given a
letter advising him o r her o f the action being taken (suspension, separation, etc ) p n o r to the
effective date o f the action.
Id. at 19, 20.
3 The lim itations on the A ttorney G eneral’s authority may be categorized as: (1) OPM regulations govern­
ing em ploym ent o f those in the excepted service, see 5 C.F.R. §§ 302.101 et seq.\ (2) statutes and OPM
regulations governing em ploym ent o f veterans in the excepted service; (3) Department regulations; and (4)
any Department handbooks o r inform al understandings that may establish a reasonable expectation of
continued em ploym ent. See A shton v. C iviletti, 613 F 2d 923 (D C. Cir. 1979). *
A veteran, 5 U.S.C. §2 1 0 8 (1 )(B ), (3)(B), who has served for one year in the excepted service, id
§ 7 5 1 1(a)(1)(B), is afforded civil service protection, and action may be taken against him “only for such
cause as w ill promote the efficiency o f the service.” Id. § 7513(a). W hether the Attorney G eneral’s authority
in 28 U .S.C. § 542(b) prevails over the veterans’ preference statute is a question on w hich this O ffice
expressed considerable doubt some years ago. M emorandum fo r W illiam D. Ruckelshaus, A ssistant A ttorney
General, C ivil D ivision from A ssistant A ttorney General Rehnquist, O ffice o f Legal Counsel (Sept. 10,
1970); M emorandum for A ssistant Attorney G eneral R ehnquist from Leon Ulman and Herman M arcuse
(Sept. 4, 1970).
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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
“infam ous, . . . immoral o r 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. C ourt 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. M acy , 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 fo r Indi­
vidual Rights v. Hampton, 63 F.R.D. 399 (N.D. Ca. 1973), a f f 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 9 homosexual person might bring the public service
4 T he statute covers appointments in the excepted service. 5 U .S.C. § 2302(a)(2)(A )(i), (B). AUSA
positions do not fall w ithin Schedule C , 5 C.F.R. § 213.3301, and are not, therefore, within any o f the
exceptions to the coverage o f this statute. 5 U.S.C. § 2302(a)(2)(B )(i).
5 O PM adm inisters the regulations governing the civil service. 5 U .S.C. § 1103(a)(5) The civil service
includes the excepted service. 5 U.S.C. § 2101(1).
6 A fter the decision in S c o tt, the Civil Service C om m ission again disqualified the applicant, and was again
reversed. S co tt v. M a cy, 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 fo r F ederal 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^], 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
o f 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. M acy , 417 F.2d 1161, 1166 (D.C. Cir.
49
1969).7 As in N orton, 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 o f 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 o f 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 C om m ’n , 530 F.2d 247 (9th Cir. 1976), vacated and remanded, 429
U.S. 1034 (1981), and Childers v. D allas P olice D e p ’t, 513 F. Supp. 134, 140-
42 (N.D. Tex. 1981).10 Rather, the AUSA has apparently been so discreet that
the fact o f his homosexuality came as a surprise to his superiors. Like the
employee in N orton, the AUSA could successfully argue that he is a satisfac­
tory worker who suffered an adverse employment action because of a general
policy decision.11
7 N orton involved a veteran who could o n ly be dism issed fo r “ such cause as will prom ote the efficiency of
the serv ice.” 5 U .S.C . § 7512(a) (Supp 1965). The nexus test, how ever, has been carried over in subsequent
cases to disputes involving those in the ex cep ted service. A shton v. C iviletti, 613 F.2d 923 (D.C. Cir. 1979).
N ot all c ircu its use the nexus test, see, e.g.. Vigil v. Post O ffice D ep't, 406 F.2d 921 (10th Cir. 1969), but it is
the test em ployed in the circuits in which it is most likely that the AUSA, if he were so inclined, w ould bring
suit.
8 N orton involved an otherw ise com petent NASA budget analyst dism issed because o f a homosexual
advance he m ade one evening while in a c ar. 417 F.2d at 1162-63. He w as arrested for a traffic violation by
m em bers o f the M orals Squad who had o b serv ed the incident. He was then interrogated about his conduct by
the M orals Squad and NASA security officers. Although sodom y was a violation of the local law, D.C. Code
§ 2 2 -3 5 0 2 (1967), the court did not raise th e issue o f w hether such a violation might autom atically establish
the nexus. The g o vernm ent’s brief did, how ever, note that sodomy was a crime and that the police had
probable cause to arrest Mr. Norton on that charge, although they chose not to. A ppellee’s B rief at 14 n.9, 31
& n.25, N orton v M acy, 417 F.2d [161 (D .C . Cir. 1969). Thus, the Court o f Appeals im plicitly rejected the
proposition that conduct violative of the lo cal ordinance was sufficient, standing alone, to establish a nexus
betw een that conduct and the jo b performance required in M r. N orton’s job.
9 See, e.g., S a fra n sky v. State Personnel B oard, 215 N .W .2d 379, 381, 385 (Wise. 1974).
10C om pare Singer, 530 F.2d at 249, 2 5 2 -5 5 , M cC onnell v. A nderson, 451 F.2d 193 (8th Cir. 1971), cert,
denied, 405 U .S. 1046 (1972); Childers, 513 F. Supp. at 140-41 w ith A um iller v. U niversity o f D elaware, 434
F. Supp. 1273 (D. D el. 1977). See also R o ss v. Springfield S chool Dist. No. 19, 641 P.2d 600, 608 (Or. Ct.
A pp. 1982) (teacher properly dismissed w here public practice o f hom osexuality resulted in “notoriety” which
im paired his teaching ability).
11 In ben Shalom v. S ecreta ry o f Army, 489 F. Supp. 964 (E.D. W ise. 1980), the court found that the
dism issal o f an otherw ise suitable soldier b ecau se o f her hom osexuality violated the soldier’s substantive due
process rights un d er the Fifth Amendment. Id. Given that the soldier had received high m arks on her military
perform ance, the court found th at there w as no nexus betw een her status as homosexual and her suitability for
service. “ It w as, therefore, arbitrary, capricious and unreasonable for the A rm y to conclude that the petitioner
was anything o th e r than a 'su itab le' soldier under its regulations.” Id. at 977. See also M artinez v. B row n, 449
F. Supp. 207 (N .D . Ca. 1978) (same; Navy regulations). B u t see B eller v. M iddendorf, 632 F.2d788 (9th Cir.)
(rejectin g sam e analysis w hen applied to N avy regulation), p e t ’n fo r reh ’g en banc denied sub nom. M iller v.
R um sfeld, 647 F.2d 80 (9th C ir. 1980), c ert, denied, 452 U.S. 905 (1981). The denial o f the petition for
rehearing en ba n c elicited a long dissent. M iller, 647 F.2d at 80 -9 0.
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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. H alaby, 317 F.2d 582 (D.C. Cir. 1963), cert, dismissed, 379 U.S. 951
(1964). D ew occurred prior to the issuance of the pertinent OPM regulation.
Singer involved the kind of “notorious” conduct faulted in N orton : 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 D ew and Singer, the Government received adverse public­
ity because o f 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 o f local law demonstrates a disrespect for the
law that is not consistent with the standard of conduct demanded by the
Department o f 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. U nited States P ostal Service, 661 F.2d 1071 (5th Cir. 1981) (indictm ent for child m olesta­
tion, standing alone, insufficient); Young v. H am pton, 568 F.2d 1253 (7th C ir. 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. P hillips 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 o f 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 o f criminality. 28 C.F.R. § 45.735-2(a). Some cases have
emphasized that law enforcement officers can, because of their particularly
sensitive positions, be held to a stricter standard of behavior, even in their
private lives, than might otherwise be the case. For example, in M asino v.
U nited States, 589 F.2d 1048 (Ct. Cl. 1978), the court approved the dismissal of
a United States customs officer because of his voluntary statements that he had
smoked marijuana on several occasions:
M asino in his position as a Customs Inspector was specifically
charged with enforcing the laws concerning contraband, includ­
ing marijuana. Since possession and/or use o f marijuana is a
violation of federal criminal statutes, he was clearly not con­
ducting him self in a m anner to be expected o f a Government
employee engaged in law enforcement duties. This was what the
appeals authority said, and we agree. Further, in addition to the
language of the appeals authority, the transportation and use of
the very contraband which a law enforcement officer is sworn to
interdict, is clearly misconduct which “speaks for itself.” Obvi­
ously, the disciplinary action of termination taken against Masino to
“promote the efficiency o f the service” cannot be said to be without
a rational basis. His discharge was neither arbitrary nor capricious.
589 F.2d at 1056. A district court has upheld a state law barring all felons, even
those who had received pardons, from being policemen. Dixon v. McMullen,
12( . . . continued)
standing alone, insufficient); Tygrett v. B a rry, 627 F.2d 1279 (D.C. C ir. 1980) (reaffirm ing analysis in
T ygrett v. W ashington, 543 F.2d 840 (D C . Cir. 1974)) (probationary policem an's advocacy of illegal “sick
o u t” in su fficien t); G rebosz v. United S ta te s C ivil Service C om m 'n, 472 F. Supp. 1081 (S D.N.Y. 1979)
(con v ictio n s fo r possession o f marijuana a n d sale o f cocaine insufficient). Even questionable conduct while
at w ork does not au tom atically provide the nexus. In Phillips v. Bergland, 586 F.2d 1007 (4th Cir. 1978), the
c ourt d eclin ed to find that assaulting a fello w em ployee in th e stairw ell, albeit during the lunch hour, was
facially sufficient to prove the nexus:
T ypical o f conduct, w hich carries on its face p rejudice to the service as contem plated in
§ 7 501(a), are falsificatio n of work records o r expense accounts, theft of governm ent property,
assau lt on o n e ’s su p erv iso r at work, an d insubordination. All of these . . . are quite different from
m isconduct w hich is entirely u nrelated to the em ployee’s work and which occurs when the
em ployee is o ff duty. A nd the courts have recognized th at distinction and have made plain the
g reater burden w hich rests on the agency to justify its action in the latter case.
Id. at 1011 (footnotes and citations om itted). B ut see Yacovone v. Bolger, 645 F 2d 1028 (D.C. Cir.), cert
d enied , 454 U .S. 844 (1981) ($8 theft by P o stm aster sufficient because o f fiduciary responsibilities); Wathen
v. U nited S ta tes, 527 F.2d 1191 (Ct. Cl.) (m u rd er com m itted in public sufficient), cert, denied, 429 U.S. 821
(1976); G ueroy v. H am pton, 510 F.2d 1222 (D.C C ir 1974) (m anslaughter conviction sufficient).
52
527 F. Supp. 715 (N.D. Tex. 1981). The court said that it was permissible for
the state to examine the individual’s prior history and to deny employment to
those with a background of lawbreaking in order to insure “that those persons
publicly employed in emergency or dangerous situations are sober and alert,
and possess qualities such as honesty, integrity, reliability and obedience to the
law.” Id. at 721. Noting that policemen are acting on behalf of “people at
large,” the court said:
Policemen are just simply a special category. Integrity and
trust are prerequisites. The law clothes an officer with authority
to handle many critical situations, including those that occur in a
lightning moment and which can never be reenacted or reversed.
. . . A state’s legitimate concern for maintaining high standards
of professional conduct extends far beyond the initial licensing.
Id. See also Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir. 1970);
M acchi v. Waley, 586 S.W.2d 70, 72-74 (Mo. Ct. App. 1979); Vegas v.
Schechter, 178 N.Y.S.2d 67, 68-69 (Sup. Ct. 1958).13 Even those whose
connections to law enforcement appear more tenuous have come within the
sweep of these statements. In upholding the denial of employment to a homo­
sexual who sought work as a property room clerk in the police department,
Childers v. D allas Police Department, supra, the court said:
No one can disagree that the character and activities of those to
whom we entrust the enforcement of our laws must be beyond
reproach. The activities of an employee of a law enforcement
agency are o f paramount interest to that agency, as the police
department as a whole must reflect the values of a majority of
society.
Childers, 513 F. Supp. at 140—41.14 Likewise, it could certainly be argued that
public prosecutors must be trustworthy and law abiding, or else the public’s
confidence in the justice system will erode. Persons deciding whether to bring
or decline prosecutions should not be lawbreakers themselves.15
13 But see Sm ith v. Fussenich, 440 F. Supp. 1077 (D. Conn. 1977) (law b am ng all felons from w ork as
private security guards struck down as overbroad).
14 H ow ever, C hilders offers less support for the decision not to retain the AUSA than at first appears. First,
the case involved a property room clerk, the same kind o f low -level jo b involved in Ashton, supra, in which
the D .C. C ircuit cam e to the opposite conclusion about an FBI m ailroom clerk. Second, C hilders involved a
hom osexual who, as in Singer, was not discreet and who openly advocated hom osexuality w hile identifying
him self as a public employee. The notoriety led the Court to conclude that the applicant failed one o f the tests
laid out in N orton, supra. Childers, 513 F. Supp. at 142 n .l 1.
15 Law enforcem ent is not the only profession the courts have recognized as being one in w hich the pub lic’s
confidence in the em ployee is important. An a ir co n tro ller's jo b has been described by courts as a “a sensitive
one” in w hich m isconduct m ay erode the p u b lic's faith in reliability o f the national air control system. D ew v.
H alaby, 317 F 2 d 582, 587 n . l l (D.C Cir. 1963) (hom osexual acts), cert, dism issed, 379 U.S. 951 (1964);
M cD ow ell v. G oldschm idt, 498 F. Supp. 598, 605 (D. Conn 1980) (conviction for possession o f m arijuana).
D ew 's continued validity has been undercut by Norton, decided five years later, in which the D.C. C ircuit was
m uch more w illing to question and overrule O P M ’s rationale.
53
We must emphasize, however, that none of these cases is dispositive. Fur­
thermore, the fact that the AUSA has apparently, according to those who have
evaluated him, continued to perform effectively in his job even after his
homosexuality became public knowledge in the United States Attorney’s Of­
fice will seriously undercut the crucial argument that his homosexual conduct
is adversely affecting his job performance. In order to prevail, the Department
may well have to convince the courts to accept the argument that the continuing
violation o f local laws that make private consensual homosexual conduct
criminal establishes the required nexus as a matter of law even though that
local law probably would not be enforced against the AUSA and even though
such a legal “presumption” might be said to run counter to the pertinent statute
and regulations.
II. Comstitational Protectnoims
The AUSA might attempt to argue that failing to retain him would violate
certain o f his constitutional rights, but we do not believe such arguments would
be successful. It is true that federal employees do not give up their constitu­
tional rights upon accepting employment and the federal government may not
condition a job upon the waiver of those rights. However, the issue whether the
right to privacy, which the courts have determined to be protected by the
Constitution, encompasses the right to practice private consensual homosexu­
ality is still a m atter o f serious dispute. See Berg v. Claytor, 436 F. Supp. 76,79
(D.D.C. 1977), vacated, 591 F.2d 849 (D.C. Cir. 1978). Although some courts
have found protection for homosexuals for certain activities in the First Amend­
ment either in the freedom to speak,16 the freedom to associate,17 or the right to
]6S ee A u m illier v. U niversity o f D elaw are, 434 F. Supp. 1273, 131112 (D. Del. 1977); A canfora v Bd. o f
E du ca tio n , 491 F.2d 498, 501 (4th Cir.), c e rt. d enied, 419 U.S. 836 (1974). In A um illier, the court awarded
pun itiv e dam ages in an action brought u n d e r 42 U.S.C. § 1983 against a university president w ho refused to
rehire an untenured teacher because the teach er had discussed his hom osexuality in public. But see Suddarth
v. Slane, 539 F. Supp. 612, 616 (W.D. V a. 1982) (denied recovery under § 1983 on ground that participation
in illegal act — adultery — precluded recovery fo r allegedly w rongful dism issal). Damages w ere also
aw arded in J ohnson v. San Jacinto J u n io r College, 498 F. Supp. 555, 57779 (S.D. Tex. 1980) (adultery
pun ish ed by sum m ary dem otion without a hearing).
17 See G ay L ib v. U niversity o f M issouri, 558 F.2d 848 (8th Cir. 1977) (freedom o f speech and association
protects hom osexual students), cert denied, 434 U.S. 1080 (1978); G ay A lliance v. M athew s, 544 F.2d 162
(4th C ir. 1976) (sam e); G ay Students O rg. v. Bonner, 509 F.2d 652 (1st Cir. 1974) (same); Lesbian/G ay
F reedom D ay C om m ittee, Inc. v. INS, 541 F Supp 569 (N.D. Cal. 1982) (holding unconstitutional p er se
exclu sio n o f hom osexual aliens as violative o f First A m endm ent associational rights o f hom osexual citizens);
F ricke v. Lynch, 491 F. Supp. 381 (D .R .I. 1980) (hom osexual high school student’s rights to freedom of
speech and association covered bringing hom osexual date to high school prom); Student Coalition fo r Gay
R ig h ts v. A u stin P eay State University, 4 7 1 F Supp. 1267 (M .D . Tenn. 1979); Toward a G ayer B icentennial
C om m ittee v. Rhode Isla n d Bicentennial Foundation, 417 F. Supp. 632 (D.R.I. 1976) (upholding right o f
access to public forum ); G ay Activists A llia n ce v. Board o f Regents, 638 P.2d 1116 (Okla. 1981); Alaska Gay
C oalition v. S u llivan, 578 P.2d 951 (Ala. 1978). See also N em etz v. INS, 647 F.2d 432 (4th Cir. 1981) (private
hom osexual co nduct d oes not preclude finding o f “good m oral character” necessary for naturalization). Even
the m ilitary ’s p e r se exclusion of hom osexuals has been successfully attacked in some cases despite the
trad itio n al deference given to arguments about discipline and upholding the law. ben Shalom v. Secretary o f
A rm y, 489 F. Supp. 964 (E.D . Wise 1980) (discharge fo r hom osexuality violated rights o f association and
personal privacy). See also Bruns v. Pomerleau, 319 F. Supp. 58 (D. Md. 1970) (refusal to accept employment
application from practicing nudist violated his right to freedom o f association). Some courts have also found
protection in state constitutions. Gay Law Students A s s ’n v. Pacific Tel. & Tel., 595 P.2d 592,597 (Cal. 1979)
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conduct one’s private life free from government surveillance, see C yr v. Walls,
439 F. Supp. 697 (N.D. Tex. 1977) (police surveillance of homosexual groups
violated right to privacy),18 we do not believe that failing to retain the AUSA
would violate these rights. The Department has not invaded the AUSA’s
privacy by making impermissible inquiries, because the background check is
required of all applicants and there has been no further inquiry. Failure to retain
the AUSA would not be because he associates with homosexuals or has spoken
out about his status but solely because of a determination that knowing,
continuing violations of a local criminal law are sufficient to disqualify him
from a job as a federal prosecutor.
III. Conclusion
The Department has the right to decline to retain the AUSA if his conduct or
intended conduct are adversely affecting his job performance or the perfor­
mance of those around him. In this particular case, the individual involved
apparently has an excellent record as a litigator and is, according to his present
superior, functioning in a satisfactory manner. It would be difficult, given this
record, to show that his homosexual conduct in fact adversely affects his job
performance. Rather, we believe that on these facts it would be likely that he
would meet the tests articulated in Norton, supra, especially in view of the fact
that the Department is willing to give him the security clearance necessary for
his work. The state criminal law he is apparently violating is, we understand,
only enforced against public conduct. The Department does not have a policy
of dismissing people for conduct that violates other similar state criminal laws.
Staff members at both the Civil Division, which will be called upon to
defend any suit, and OPM, whose regulation we are interpreting, have been
informally consulted and have stated that they believe the facts of this case will
make it difficult to establish a sufficient nexus between the conduct and the job
performance, and we tend to agree with their judgment. As long as the OPM
regulation remains in force, we also believe it would be difficult to establish the
proposition that the violation of local laws on the facts of this case establishes a
nexus as a matter of law sufficient to support a decision to dismiss.
We must reiterate that the case law makes it clear that potential embarrass­
ment to the Department is not enough to justify a refusal to retain an AUSA:
there must be a supportable judgment made by the appropriate officials that the
AUSA’s actions are adversely affecting his performance. Unless the Depart­
ment can reasonably expect to maintain the burden of proof on this issue, it is
18 See also Shuman v. City o f Philadelphia, 470 F. Supp. 449, 459 (E.D. Pa 1979) (inquiry into off-duty
personal activities — affair w ith an 18-y ear-o ld — violated right o f privacy in the absence o f any showing o f
im pact on job perform ance); M ajor v. H am pton, 413 F. Supp. 66 (E.D. La. 1976) (dism issal o f IRS officer
who rented apartm ent for off-duty, extram arital affairs imperm issible); M indel v. U nited States Civil Service
C om m ’n, 312 F. Supp. 485 (N.D. Cal. 1970) (term ination o f postal clerk for cohabiting violated Ninth
A mendm ent right to privacy). B u t see Suddarth v. S lane, 539 F. Supp 612 (W .D. Va. 1982) (adultery not
protected by the First Am endm ent); H ollenbaugh v. C arnegie Free Library, 436 F. Supp. 1328 (W .D. Pa.
1977), a j f d , 578 F.2d 1374 (3d C ir.) (em ployees’ open adultery not protected by right o f pnvacy), cert.
denied, 439 U.S. 1052(1978).
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not reasonable to expect that the Department would prevail. Without stronger
evidence that this particular individual’s homosexuality is adversely affecting
his performance, we believe that it would be difficult to overcome charges of
discrimination on the basis of conduct that apparently does not adversely affect
the performance o f the employee or those around him.
T h eo d o r e B . O lso n
Assistant Attorney General
Office o f Legal Counsel
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