upholding an employee discharge on the basis of homosexual conduct, but not without first finding that the administrative record contained convincing proof that the employee’s removal promoted the efficiency of the service
How later courts described this case
- upholding an employee discharge on the basis of homosexual conduct, but not without first finding that the administrative record contained convincing proof that the employee’s removal promoted the efficiency of the service
Written by the judges who cited it.
The opinion
DAVIS, Judge
(concurring):
I join in the result, and fully in all of the opinion except Part II. As for that portion, I agree with most of what the court says but, in the light of the discus *1382 sion in Norton v. Macy, 417 F.2d 1161 (D.C. Cir. No. 21, 625, decided July 1, 1969), I would confine our present holding to the particular circumstances of this case. The significant factors here are: (a) the nature of plaintiff’s conduct, which was explicit and overt and (at least as to one charge) appears to have violated the criminal law of Hawaii (see Sec. 768-71 — sodomy); (b) the recency and repeated nature of that conduct, and plaintiff’s defense of it (thus indicating that he would continue in that course); (e) the security requirements of plaintiff’s office and position (in that connection it is not irrelevant that plaintiff’s acts were committed with military personnel) 1 ; and (d) the testimony that retention of plaintiff would negatively affect the operation of the office. These factors were not present in Norton , as the District of Columbia Circuit saw that case.
. In the Norton case, the court said (p. 10, slip opinion): “The homosexual conduct of an employee might hear on the efficiency of the service in a number of ways. Because of the potential for blackmail, it might jeopardize the security of classified communications.”