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April 22, 1975

Thomas L. Fox, Jr., Plaintiff,
Walter E. Washington et al., Defendants

Bryant, D.J.

The opinion of the court was delivered by: BRYANT


Thomas Fox is an applicant for a position in the District of Columbia Fire Department. The United States Civil Service Commission has certified Fox and the class he represents *fn1" as eligible for appointment to the position of firefighter. Fox and his class also meet all the physical requirements for the job except the minimal height requirement of 5'7". *fn2" Fox has filed a Motion for Summary Judgment and argues that this court should rule in his favor on the ground that the minimum height regulation violates the due process and equal protection requirements of the Fifth Amendment, and also violates a Civil Service Employment Regulation, 5 C.F.R. § 300.103 (1974), which requires that there be a rational relationship between a government employment practice and job performance. For reasons set forth below, the plaintiffs' Motion for Summary Judgment is granted on the ground that the height requirement violates the Civil Service Commission employment regulation. This ruling makes it unnecessary to reach the constitutional issue. *fn3"

 The Federal Civil Service Employment Practice regulation requires that:

"There shall be a rational relationship between performance in the position to be filled (or in the target position in the case of an entry position) and the employment practice used. The demonstration of rational relationship shall include a showing that the employment practice was professionally developed." *fn4"

 The District of Columbia does not face up to the applicability of Section 300.103 to its Fire Department hiring practices. Nor does it contest plaintiffs' argument that the height requirement is an "employment practice" within the regulation, a contention which would be difficult to support since Section 300.101 specifically defines "employment practices" to encompass all "qualification standards". The city's 5'7" height requirement is obviously a qualification standard.

 Rather the District bases its entire defense to this challenge on the assertion that the law requires only that the District show that there is some nexus between height and job performance, and that the city has made this bare showing. The city's argument flies in the face of the plain meaning of the regulation, which requires a "rational relationship" shown to be "professionally developed"; a recent opinion of the U.S. Court of Appeals for the District of Columbia; and the Civil Service Commission's interpretation of this regulation.

 In Douglas v. Hampton, *fn6" the United States Court of Appeals for the District of Columbia Circuit referred to Section 300.103 in a class action challenge to the Federal Services Entrance Examination. Although acknowledging some uncertainty as to the precise meaning of the regulation, the Court declared that "we do not understand" the term rational relationship in the regulation "to carry the same meaning as in equal protection cases that decline to apply a 'strict scrutiny' standard." *fn7" Accordingly, this court must, at the outset, reject the defendant city's permissive interpretation of "rational relationship".

 In the area of physical qualifications the Civil Service Commission has given considerable guidance as to the meaning of the regulation. The Commission's interpretations of the employment regulations, in both adjudicatory and rule-making proceedings, require that the city show more than some nexus between the job qualification and job performance. Under established principles of law this court must give considerable weight to the administrative interpretation. *fn8"

 In 1972 the Civil Service Commission decided a case substantially identical to the case currently before this court. In In Re Shirley Long, *fn9" the Commission measured the height and weight requirements for United States Park Police against § 300.103, and invalidated the requirements on the twin grounds that there had been no job analysis of the physical requirements and also that the Park Service had failed to demonstrate a rational relationship between job performance in the position of Park Police Officer and the physical requirements. *fn10"

 The Commission has also interpreted Section 300.103 in the Federal Personnel Manual which contains instructions from the Commission to other agencies on matters of personnel management. Supplement 271-1 of the Manual sets out guidelines for implementing subpart A, Employment Practices, part of 300 of the Civil Service Regulations, of which Section 300.103 is the central section. *fn11" The Supplement states that physical requirements must be established on the basis of both studies by medical officers and research relating to the effects of physical defects on employment. *fn12"

 Thus the Civil Service Commission's interpretation of its own regulation, which this court embraces, requires that the District of Columbia show more than some nexus between its height regulation and physical strength. First, the District must show, as explicitly required by the regulation, that the height standard has been professionally developed. And second, the District must show a rational relationship between the job qualification and job performance. According to both the United States Court of Appeals for the District of Columbia and the Civil Service Commission, this requires the defendant to show more than some state interest in preserving its regulation. In my opinion, Section 300.103 compels me to enjoin the District of Columbia from excluding, solely on the basis of height, applicants for positions in the fire department, unless the District of Columbia has shown a significant, substantial governmental interest in its height requirement.

 In support of its opposition to the plaintiff's Motion for Summary Judgment the District of Columbia has submitted only two letters. The first, written in 1946 by the chairman of the Board of Police and Fire Surgeons, justifies the height requirement primarily by arguing that taller policemen are "more respected" and that short policemen have on several occasions received "considerable physical injury" inflicted by "individuals arrested for infraction of the law." *fn13" Any merit which this argument ever had is obviated by the police department's recent action lowering the height requirement to 5'0". *fn14" Moreover, these considerations -- community respect engendered by height and physical strength necessary to arrest unruly individuals -- while arguably relevant to predicting job performance of applicants to the police department, are no basis for disqualifying an applicant to the fire department who is rarely threatened with physical injury by another person.

 The second letter *fn15" cited by the Corporation Counsel was written by the Chief Engineer of the fire department and merely ...

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