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 jo b 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 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 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

M e m o r a n d u m O p in io n f o r t h e A s s o c i a t e A t t o r n e y G e n e r a l

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.

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 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, 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 prohibited 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 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), a ffd mem., 425 U.S. 901 (1976); and Stewart v. United States, 364 A.2d 1205 (D.C. Cl. 

App. 1976).

2 The section states, “Each assistant United States Attorney is subject to removal by the Attorney G eneral." 

There are no reported cases under this section. Department o f Justice regulations provide that attorneys in the 

excepted service who are being removed are only entitled to a letter of termination. DOJ O rder No. 1752.1A 

(Apr. 27, 1981). The O rder 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 sam e protections as competitive service employees because of V eterans’ Preference or prior competitive 

status.

PROCESSING DISCIPLINE, a. An excepted service employee who is protected under law and 

the regulations of the O ffice of Personnel M anagement [because o f veterans' preference] is 

entitled to the procedures fgoveming 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 ) pnor to the 

effective date of the action.

Id. at 19, 20.

3 The limitations on the Attorney General’s authority may be categorized as: (1) OPM regulations governing employment o f those in the excepted service, see 5 C.F.R. §§ 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(1)(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). 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 which this O ffice 

expressed considerable doubt some years ago. Memorandum for William D. Ruckelshaus, Assistant Attorney 

General, Civil Division from Assistant Attorney General Rehnquist, Office o f Legal Counsel (Sept. 10, 

1970); Memorandum for Assistant Attorney General Rehnquist from Leon Ulman and Herman M arcuse 

(Sept. 4, 1970).

47
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. 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 Individual Rights v. Hampton, 63 F.R.D. 399 (N.D. Ca. 1973), a ffd 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 conclusion that 9 homosexual person might bring the public service

A. Statutory and Regulatory Constraints

4 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 o f the 

exceptions to the coverage o f this statute. 5 U.S.C. § 2302(a)(2)(B)(i).

5 OPM 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 Scott, the Civil Service Commission again disqualified the applicant, and was again 

reversed. Scott v. M acy, 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 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 fo r Federal Employment. Subchapter 3-2(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^], 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. 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 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 Com m ’n, 530 F.2d 247 (9th Cir. 1976), vacated and remanded, 429 

U.S. 1034 (1981), and Childers v. Dallas Police D ep’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 general 

policy decision.11

7 N orton 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 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, would bring 

suit.

8 N orton 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 

m em bers o f the M orals Squad who had observed 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 

§ 22-3502 (1967), the court did not raise the issue of w hether such a violation might automatically establish 

the nexus. The governm 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. Appellee’s Brief at 14 n.9, 31 

& n.25, Norton v M acy, 417 F.2d [161 (D .C . Cir. 1969). Thus, the Court o f 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 jo b performance required in Mr. Norton’s job.

9 See, e.g., Safransky v. State Personnel Board, 215 N.W .2d 379, 381, 385 (Wise. 1974).

10Compare Singer, 530 F.2d at 249, 25 2 -5 5 , M cConnell v. Anderson, 451 F.2d 193 (8th Cir. 1971), cert,

denied, 405 U .S. 1046 (1972); Childers, 513 F. Supp. at 140-41 with Aum iller v. University o f Delaware, 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 w here public practice o f homosexuality resulted in “notoriety” which 

im paired his teaching ability).

11 In ben Shalom v. Secretary of Army, 489 F. Supp. 964 (E.D. Wise. 1980), the court found that the 

dism issal of an otherw ise suitable soldier because o f her hom osexuality violated the soldier’s substantive due 

process rights under the Fifth Amendment. Id. Given that the soldier had received high marks on her military 

perform ance, the court found that there w as no nexus between her status as homosexual and her suitability for 

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 M artinez v. Brown, 449 

F. Supp. 207 (N.D. Ca. 1978) (same; Navy regulations). B ut see Beller v. M iddendorf, 632 F.2d788 (9th Cir.) 

(rejecting same analysis when applied to N avy regulation), p e t’n fo r reh ’g en banc denied sub nom. M iller v. 

Rum sfeld, 647 F.2d 80 (9th Cir. 1980), cert, denied, 452 U.S. 905 (1981). The denial o f the petition for 

rehearing en banc elicited a long dissent. M iller, 647 F.2d at 80-90.

50
We are aware of two cases in which the Government has dismissed homosexual 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 publicity 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, especially 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 m olestation, 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 representation 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 

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 Masino v. 

United 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:

Masino in his position as a Customs Inspector was specifically 

charged with enforcing the laws concerning contraband, including marijuana. Since possession and/or use of marijuana is a 

violation of federal criminal statutes, he was clearly not conducting himself in a manner to be expected of 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.” Obviously, the disciplinary action of termination taken against Masino to 

“promote the efficiency of 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 arry, 627 F.2d 1279 (D.C. Cir. 1980) (reaffirming analysis in 

Tygrett v. W ashington, 543 F.2d 840 (D C . Cir. 1974)) (probationary policem an's advocacy of illegal “sick 

out” insufficient); Grebosz v. United States Civil Service C om m 'n, 472 F. Supp. 1081 (S D.N.Y. 1979) 

(convictions for possession o f marijuana an d sale of cocaine insufficient). Even questionable conduct while 

at work does not autom atically provide the nexus. In Phillips v. Bergland, 586 F.2d 1007 (4th Cir. 1978), the 

court declined to find that assaulting a fellow employee in the stairwell, albeit during the lunch hour, was 

facially sufficient to prove the nexus:

Typical o f conduct, which carries on its face prejudice to the service as contemplated in 

§ 7501(a), are falsification of work records or expense accounts, theft of government property, 

assault on one’s supervisor at work, and insubordination. All of these . . . are quite different from 

m isconduct which is entirely unrelated to the em ployee’s work and which occurs when the 

em ployee is o ff duty. And the courts have recognized that distinction and have made plain the 

greater burden which rests on the agency to justify its action in the latter case.

Id. at 1011 (footnotes and citations om itted). But see Yacovone v. Bolger, 645 F 2d 1028 (D.C. Cir.), cert

denied, 454 U.S. 844 (1981) ($8 theft by Postm aster sufficient because of fiduciary responsibilities); Wathen

v. United States, 527 F.2d 1191 (Ct. Cl.) (m urder committed in public sufficient), cert, denied, 429 U.S. 821 

(1976); Gueroy 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); 

Macchi 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 homosexual who sought work as a property room clerk in the police department, 

Childers v. Dallas 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 of 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 Smith v. Fussenich, 440 F. Supp. 1077 (D. Conn. 1977) (law bam ng all felons from work as 

private security guards struck down as overbroad).

14 However, Childers 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 of low-level job involved in Ashton, supra, in which 

the D.C. Circuit came to the opposite conclusion about an FBI mailroom clerk. Second, Childers involved a 

homosexual who, as in Singer, was not discreet and who openly advocated homosexuality while 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 which the public’s 

confidence in the employee is important. An air controller's job has been described by courts as a “a sensitive 

one” in which misconduct may erode the public's faith in reliability o f the national air control system. Dew v. 

Halaby, 317 F 2 d 582, 587 n .ll (D.C Cir. 1963) (homosexual acts), cert, dism issed, 379 U.S. 951 (1964); 

M cDowell v. Goldschmidt, 498 F. Supp. 598, 605 (D. Conn 1980) (conviction for possession of marijuana). 

D ew 's continued validity has been undercut by Norton, decided five years later, in which the D.C. Circuit was 

much more willing to question and overrule O PM ’s rationale.

53
We must emphasize, however, that none of these cases is dispositive. Furthermore, 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 Office 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 of 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 of his constitutional rights, but we do not believe such arguments would 

be successful. It is true that federal employees do not give up their constitutional 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 homosexuality is still a matter of 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 Amendment either in the freedom to speak,16 the freedom to associate,17 or the right to

]6See A um illier v. U niversity o f Delaware, 434 F. Supp. 1273, 131112 (D. Del. 1977); Acanfora v Bd. o f

Education, 491 F.2d 498, 501 (4th Cir.), cert. denied, 419 U.S. 836 (1974). In Aum illier, the court awarded 

punitive damages in an action brought under 42 U.S.C. § 1983 against a university president who refused to 

rehire an untenured teacher because the teacher had discussed his homosexuality in public. But see Suddarth

v. Slane, 539 F. Supp. 612, 616 (W.D. Va. 1982) (denied recovery under § 1983 on ground that participation 

in illegal act — adultery — precluded recovery for allegedly wrongful dismissal). Damages were also 

aw arded in Johnson v. San Jacinto Junior College, 498 F. Supp. 555, 57779 (S.D. Tex. 1980) (adultery 

punished by sum m ary dem otion without a hearing).

17 See Gay Lib v. University o f M issouri, 558 F.2d 848 (8th Cir. 1977) (freedom of speech and association 

protects hom osexual students), cert denied, 434 U.S. 1080 (1978); Gay Alliance v. M athews, 544 F.2d 162 

(4th Cir. 1976) (sam e); Gay Students Org. v. Bonner, 509 F.2d 652 (1st Cir. 1974) (same); Lesbian/Gay

Freedom D ay Committee, Inc. v. INS, 541 F Supp 569 (N.D. Cal. 1982) (holding unconstitutional per se

exclusion o f hom osexual aliens as violative of First Amendment associational rights o f homosexual citizens); 

Fricke v. Lynch, 491 F. Supp. 381 (D .R.I. 1980) (homosexual high school student’s rights to freedom of 

speech and association covered bringing homosexual date to high school prom); Student Coalition fo r Gay

Rights v. A ustin Peay State University, 471 F Supp. 1267 (M .D. Tenn. 1979); Toward a Gayer Bicentennial

C ommittee v. Rhode Island Bicentennial Foundation, 417 F. Supp. 632 (D.R.I. 1976) (upholding right of 

access to public forum); Gay Activists Alliance v. Board o f Regents, 638 P.2d 1116 (Okla. 1981); Alaska Gay

Coalition v. Sullivan, 578 P.2d 951 (Ala. 1978). See also Nemetz v. INS, 647 F.2d 432 (4th Cir. 1981) (private 

hom osexual conduct does not preclude finding of “good moral character” necessary for naturalization). Even 

the m ilitary’s p er se exclusion of homosexuals has been successfully attacked in some cases despite the 

traditional deference given to arguments about discipline and upholding the law. ben Shalom v. Secretary o f

Arm y, 489 F. Supp. 964 (E.D. Wise 1980) (discharge for hom osexuality violated rights of 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 of association). Some courts have also found 

protection in state constitutions. Gay Law Students A ss’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 Cyr 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 performance 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 embarrassment 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 Department 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 with an 18-year-old — violated right of privacy in the absence o f any showing of 

impact on job performance); M ajor v. Hampton, 413 F. Supp. 66 (E.D. La. 1976) (dismissal of IRS officer 

who rented apartment for off-duty, extramarital affairs impermissible); Mindel v. United States Civil Service

C om m ’n, 312 F. Supp. 485 (N.D. Cal. 1970) (termination of postal clerk for cohabiting violated Ninth 

Amendment right to privacy). But see Suddarth v. Slane, 539 F. Supp 612 (W.D. Va. 1982) (adultery not 

protected by the First Amendment); Hollenbaugh v. Carnegie Free Library, 436 F. Supp. 1328 (W.D. Pa. 

1977), a jfd , 578 F.2d 1374 (3d Cir.) (employees’ open adultery not protected by right of 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 of the employee or those around him.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office o f Legal Counsel

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