The opinion of the court was delivered by: CORCORAN
CORCORAN, District Judge.
This matter is before the Court on plaintiff's motion for summary judgment and defendants' motion to dismiss or, in the alternative, to remand the case to the Civil Service Commission for further proceedings. Having considered the motions and the memoranda submitted in support and opposition thereto, and having conducted an evidentiary hearing on the issue of laches, the Court concludes that plaintiff's motion for summary judgment should be denied, defendants' motion to dismiss should be granted and the motion to remand should be denied.
A brief statement of the facts follows:
(1) On or about December 29, 1964, plaintiff filed an application for the position of clerk-typist with the Civil Service Commission (herein "the Commission").
(2) He was hired by the Post Office Department as a substitute distribution clerk on July 17, 1965. This was a one year probationary appointment subject to the usual investigation as to suitability.
(3) On October 26, 1965, he was ordered to appear for an interview by an investigator of the Commission. He was asked but refused to answer questions concerning his private sexual life. His refusal to answer was grounded upon the assertion that such matters were not the proper concern of the government.
(4) On November 29, 1965, defendant Carlton Beall, then Postmaster of the United States, notified plaintiff that his employment would be terminated on December 3, 1965. The termination was based upon reports that plaintiff had admitted to fellow postal employees that he "was attracted to others of your sex," that he had "encountered resentment" from other postal employees because of his "unnatural inclinations," and that on two occasions plaintiff "had emotional outbursts or seizures" during which he was observed "to lose control of himself, tremble visibly and weep."
The Postmaster's letter further informed plaintiff that he had no right of appeal within the Post Office Department but that he did have a right to appeal to the Commission within ten days of the effective date of his termination if he felt such action "resulted from discrimination because of sex, marital status or physical handicap."
(5) Plaintiff did not reply to the Postmaster's letter nor did he appeal his discharge to the Commission.
(7) Unaware that plaintiff's employment with the Post Office Department had been terminated, the Commission, by letter dated February 11, 1966, notified plaintiff that it was investigating his suitability for the Post Office position and asked him to admit or deny, on the basis of certain information uncovered by investigation, whether he had engaged in homosexual conduct.
(8) Responding to the letter of February 11, 1966, the plaintiff refused to admit or deny that he had engaged in homosexual conduct. He again asserted that his private sexual life bore no relation to his suitability for federal employment. Plaintiff made no mention in his response that his job with the Post Office Department had been terminated on December 3, 1965.
(9) By letter dated April 11, 1966, the Commission notified plaintiff that in the course of its investigation of plaintiff's suitability for his appointment with the Post Office, it had learned that such appointment had been terminated. The Commission stated, however, that it had under consideration his application for the position of clerk-typist dated December 29, 1964, and it had completed plaintiff's suitability investigation in light of that application. The Commission further informed the plaintiff that, as a result of its investigation, it had determined that "evidence of your homosexual activities makes you unsuitable for federal employment." Specifically the Commission found that the plaintiff's homosexual activities constituted "immoral conduct" thereby rendering him unsuitable for employment in the federal service, under Section 731.201(b) of the Civil Service Commission's regulations, 5 C.F.R. § 731.201(b). That regulation declares that people who engage in "immoral conduct" are unsuitable for federal employment. The Commission made no finding that plaintiff's homosexual activity interfered with his job performance or with the efficiency of other federal employees. By its action, the Commission canceled plaintiff's eligibility for federal employment and barred him from federal service for three years from that date.
(10) The Commission's action in disqualifying plaintiff from federal employ was taken pursuant to its policy set forth in a letter to the Mattachine Society of Washington from the Commission Chairman John W. Macy. The policy was stated as follows:
"Persons about whom there is evidence that they have engaged in or solicited others to engage in homosexual or sexual perverted acts with them, without evidence of rehabilitation, are not suitable for federal employment. In acting on such cases the Commission will consider arrest records, court records, or records of conviction for some form of homosexual conduct or sexual perversion, or medical evidence, admissions, or other credible information that the individual has engaged in or solicited others to engage in such acts with him. Evidence showing that a person has homosexual tendencies, standing ...