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Citation: 7 Op. Off. Legal Counsel 46 1983
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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)-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 abilitv 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.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. §§ 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).
HeinOnline -- 7 Op. Off. Legal Counsel 47 1983
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).
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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.
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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) 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.
9 See, 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 ofDelaware 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' ftr
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.
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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. 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, insuff