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July 21, 1983

MILTON S. MILESKI, et al., Defendants

The opinion of the court was delivered by: RICHEY


 Plaintiff worked for the State Department from 1947 through 1953. During that time, federal employees could be removed from their jobs for homosexuality. Plaintiff served as an informant specializing in developing information on the homosexual activity of federal employees. Information provided by him was instrumental in the discharge of at least ten employees from the State Department on grounds of homosexuality.

 In 1953, plaintiff was transferred to the United States Information Agency ("USIA") -- a new agency formed during the reorganization of the State Department. As part of the reorganization, the security files of many employees were reviewed to assess their continuing suitability for federal employment. In 1953, continued suitability was governed by Executive Order ("E.O.") 10450. That Order provided that investigations should be conducted to determine, inter alia, whether an employee had engaged in, "any deliberate misrepresentations, falsifications or omissions of material fact; [or] any criminal, infamous, dishonest, immoral or notoriously disgraceful conduct [or] sexual perversion; [or whether any facts were discovered] which furnish[ed] reason to believe that the individual [might] be subjected to coercion, influence or pressure which [might] cause him to act contrary to the best interests of national security." Mr. Richards' file was one of those reviewed in accordance with the standard set forth in E.O. 10450. As a result of the review, the USIA Security Office concluded that plaintiff's security file was inadequate and recommended further background investigation. *fn2"

 Defendant Wilkie, a Special Agent for USIA was initially assigned the task of investigating plaintiff's background and fitness. He filed a report on November 22, 1954 stating that interviews with co-workers and associates provided uniformly favorable information about plaintiff. However, when during the course of his investigation plaintiff admitted making false statements on his applications for naturalization and for government employment, Defendant Wilkie decided to leave the investigation open until plaintiff provided proof of his place and date of birth. Plaintiff never provided this information.

 In February of 1955, plaintiff went to see the Special Agents assigned to his case -- Agents Wilkie and Mileski -- in an attempt to expedite his security clearance. During this meeting the subject of plaintiff's activities as an informant on homosexuals arose. Mr. Richards' behavior in this regard had raised questions about his own sexuality. At that meeting, plaintiff explained that he had numerous contacts among homosexuals and had volunteered his services as an informant for USIA.

 In the course of their investigation of Richards' suitability for continued federal employment, the Special Agents contacted a confidential informant, Thomas Tattersall. Mr. Tattersall named Mr. Richards as a homosexual and signed sworn statements against a number of individuals including plaintiff. It is clear that defendants had some reasons to question the reliability of this informant at that time. However, the exact state of his credibility is disputed.

 At least partially as a result of the informant's statements, plaintiff was again interviewed by Agents Wilkie and Mileski. During the interview they told Mr. Richards they had an informant's sworn statement claiming that he had participated in homosexual acts with Richards. Here the parties disagree on the facts. The Special Agents allege that Mr. Richards admitted during that interview that he had engaged in homosexual acts. This position is buttressed by the fact that Mr. Richards admitted making "semi-admissions" in a later conversation with Defendant Noone. However, plaintiff claims that he made no admissions of homosexuality. He explains that the "semi-admissions" of which he spoke were with regard to misstating his place of birth.

 Pursuant to standard operating procedures, Defendants Mileski and Wilkie offered plaintiff the opportunity to assist in drawing up a statement setting forth the results of the interview. Plaintiff declined to do so. Consequently, the Agents prepared a statement themselves. Plaintiff also declined to examine this statement.

 Plaintiff's view of his interview with Wilkie and Mileski varied greatly. Initially, he stated that he had no complaints about the manner of his interrogation. Later, however, Mr. Richards claimed that he had been subjected to duress by Agents Mileski and Wilkie. A meeting was arranged between plaintiff and the Agents to allow him to directly confront them with any allegations of impropriety. After the meeting each Agent prepared a memorandum refuting plaintiff's allegations.

 Defendant Noone, the head of the USIA Office of Security, then reviewed the entire investigatory file on plaintiff. He recommended that Richards be given the opportunity to resign or that he be subjected to termination proceedings. Noone's recommendation was approved by General Counsel and the head of the agency. Consequently, Mr. Dingwall, plaintiff's superior approached Mr. Richards and discussed the situation with him. Mr. Richards tendered his resignation on June 20, 1955.

 Plaintiff claims that he resigned solely because he "was told that a reliable informant had named [him] and because [he] believed the defendants honestly believed the informant to be reliable." Defendants, on the other hand, argue that the informant played a relatively minor role in plaintiff's investigation and resignation. Rather, defendants emphasize that plaintiff could have been separated solely on the basis of the admissions he made, independent of the informant's statement.

 On June 24, 1955, after plaintiff had submitted his resignation but before it became effective, Mr. Mileski sent a memorandum to Mr. Sullivan, Chief of the USIA Special Investigation Branch concerning the reliability of the informant Mr. Tattersall. He noted a number of facts indicating that Mr. Tattersall was not, in fact, reliable. Although all of the individuals involved in the investigation of Richards ...

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