1969, plaintiff's claim in that regard is patently moot and must be dismissed.
Review of Civil Service Commission's Action On Plaintiff's 1969 Application
The Court has yet to dispose of plaintiff's claims that the Civil Service Commission arbitrarily refuses to consider his 1969 application for federal employment until he proves himself rehabilitated from homosexual conduct. The government asserts that plaintiff's claim in this respect should be dismissed for failure to exhaust administrative remedies in that plaintiff has not pursued his application before the Commission to a final determination. However, it is apparent that plaintiff's exhaustion of his administrative remedies would be futile in this instance. Notwithstanding the 1968 exhortation to the Commission by the Court of Appeals to develop a "clear line, "
the Commission has continually adhered to the underlying policy of excluding "all persons about whom there is evidence that they have engaged in . . . homosexual acts, without evidence of rehabilitation." It has steadfastly applied this policy to the plaintiff, demanding that he submit evidence of his rehabilitation. It is this basic policy which plaintiff challenges and plaintiff's prosecution of his application in the face of Commission adherence to this policy would be a futile act which the law does not require. NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391 U.S. 418, 426 n. 8, 88 S. Ct. 1717, 20 L. Ed. 2d 706 (1968); Wolff v. Selective Service Local Bd. No. 16, 372 F.2d 817, 825 (2d Cir. 1967); See generally, 3 K. Davis, Administrative Law Treatise § 20.07 (1958). The alternative motion to remand is accordingly denied.
We turn therefore to the merits of plaintiff's claim. We conclude that the Commission may, consonant with the First Amendment, refuse to consider plaintiff's application until plaintiff furnishes information relating to his homosexuality as required under established Commission policy of making reasonable inquiry to determine an applicant's suitability for appointment in the Federal Civil Service (including proper physical and psychiatric condition, and possession of the requisite integrity, character and general fitness).
The Supreme Court has repeatedly affirmed the power of the government to deny employment to individuals who refuse to answer questions relevant to fitness or suitability for public service. Konigsberg v. State Bar of California, 366 U.S. 36, 44-45, 81 S. Ct. 997, 6 L. Ed. 2d 105 (1961); Nelson v. County of Los Angeles, 362 U.S. 1, 6-9, 80 S. Ct. 527, 4 L. Ed. 2d 494 (1960); Orloff v. Willoughby, 345 U.S. 83, 73 S. Ct. 534, 97 L. Ed. 842 (1953). Admittedly, when the government seeks to inquire into an individual's beliefs and associations and other protected areas, it carries a heavy burden to show that the inquiry is necessary to protect a legitimate governmental interest. Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S. Ct. 889, 9 L. Ed. 2d 929 (1963). And the Courts have increasingly recognized that an individual's private sexual preferences, activities and associations are among those areas protected from governmental inquiry by the First Amendment. Norton v. Macy, 135 U.S. App. D.C. 214, 217, 417 F.2d 1161, 1164 (1969); Scott v. Macy, 131 U.S. App. D.C. 93, 97, 402 F.2d 644, 648 (1968); Ulrich v. Laird, Civil No. 203-71 (D.D.C. filed Sept. 28, 1971); Gayer v. Laird, 332 F. Supp. 169 (D.D.C. filed Sept. 28, 1971); In re Labady, 326 F. Supp. 924 (S.D.N.Y. 1971); See also, Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969). It follows that the government must demonstrate a genuine need to protect a legitimate interest before it can inquire into the details of the private sex life of an applicant for federal employment.
But even the Scott and Norton cases, so heavily relied upon by plaintiff, acknowledge that the government has a legitimate interest in protecting job efficiency and that "homosexual conduct of an employee might bear on the efficiency of the service in a number of ways." Norton, supra, 417 F.2d at 1166. An employees's homosexual conduct may jeopardize the security of classified information because of the threat of blackmail, or it may in some circumstances be evidence of an unstable personality unsuited for particular kinds of work. In other instances a homosexual employee might engage in notorious and flagrant displays of unorthodox sexual behavior or make offensive overtures while on the job. Such conduct would certainly have a detrimental effect on other employees and the overall efficiency of the service.
It follows that the government has a need to make reasonable inquiry of an applicant for federal employment, about whom there is evidence of homosexuality, to determine whether the applicant's homosexual conduct will likely affect his suitability for appointment in the federal civil service. Furthermore, the government has the right to refuse to consider an application if the applicant refuses to answer such reasonable inquiry.
Of course, the government does not have an unfettered license to interrogate an applicant concerning his private sex habits. For, while the government has a legitimate interest in excluding from its employ individuals who because of their homosexual activities have some ascertainable deleterious effect upon service efficiency, it cannot protect that interest "by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). Therefore, its inquiries must be reasonably calculated to elicit information concerning an applicant's private sex life which bears directly on his suitability for federal employment.
In the opinion of the Court the Civil Service Commission has met this standard in the instant case. The plaintiff was discharged from his last federal employment because of demonstrated emotional instability on the job. There is also evidence in the record that plaintiff attempted to make a sexual advance on a sixteen year old boy at an office building of the Department of Health, Education and Welfare while plaintiff was employed there in 1965.
In view of this background, the opinions of plaintiff's private physicians, which the Commission has sought, would appear to be highly relevant as to plaintiff's suitability for federal employment.
Accordingly, the Court dismisses this case without prejudice to the plaintiff's right to renew his application on condition that he answer reasonable and pertinent questions but with the burden placed on the government, after investigation, to make a specific finding as to whether or not plaintiff's homosexual tendencies, if they are found to exist, would interfere with the performance of his duties or the performance by others of their duties.