The opinion
NICHOLS, Judge
(concurring in the result):
I concur in the result, but such concurrence is not to be understood as a tacit approval of this method of dealing with an unwanted employee. The entire proceeding, it seems to me, is tainted by the initial agency determination to discharge Mr. Williams for reasons which I consider to be unlawful. Mr. Williams’ second separation was proposed on four charges. One may not be considered, as it was dropped. That was misuse of Treasury franked envelopes. Another could be considered, but practically need not be here. That is the failure to pay private debts. I would have some comment about the Government’s constituting itself an ancillary collection agency for private debts owed by its employees, except that I do not wish to enact in dictum the role of sermonizer to the executive branch. The CSC indicates it sustains this charge, but in a halfhearted manner. It would not fire Mr. Williams on this ground alone, as I read the Regional Commissioner’s report, for it is not one of those on whjeh its decision is “specially” based. Then there is one charge, with three specifications, of misstatements on matters of official concern. Two of these are employment history statements on Form 57, failing to reflect accurately Mr. Williams’ then recent employment with Treasury itself. He could not have expected that the Treasury would not consult its own official files for his employment history while with Treasury, which it would have had to do in any event. He could not *1355 have expected to deceive anyone, therefore. These specifications are no more than makeweights.
The real gravamen of this case lies in the specifications that relate indirectly to Mr. Williams’ private life. It seems that Mr. Williams set up in Boston, Massachusetts, a household that included himself, another man, and a woman. The Treasury suspected him of living in sin, and fired him. He riposted with charges of racial discrimination. After some months a compromise was made by which they reinstated him, but without back pay, and he withdrew the discrimination charge. I do not challenge the court’s holding that recovery of the pay for this period is barred by limitations.
In course of opposing this first ouster he represented, in an affidavit, that the other man and the woman were a married couple. After reinstatement, the Treasury discovered actually they were brother and sister. Mr. Williams’ previous wife was suing him for divorce, naming this woman as corespondent. She had a child born to her whom Mr. Williams acknowledged as his child. It cannot seriously be urged that the affidavit Mr. Williams furnished about his private life was true, and the later discovered falsity of it is the serious one among the specifications of false statements.
The other charge relates to Mr. Williams’ refusals, on advice of counsel, to answer questions of Treasury agents, apparently framed to get him to admit the falsity of the above-mentioned statement.
Mr. Williams is a veteran and cannot be removed except to “promote the efficiency of the service.” 5 U.S.C. § 7512 (a) (Supp. II, 1965-66). This language, I believe, was not until lately given much effect except as barring removal for such disapproved reasons as political affiliation. Anything believed by management in good faith to constitute misconduct was adequate. However, more recently some courts have, and I believe soundly, relied on this phrase to require some nexus with the interests of the service in cases of offduty misconduct. See, Norton v. Macy, 135 U.S.App.D.C. 214 , 417 F.2d 1161, 1163-1164 (1969), but contrary to that case, this nexus one may suppose arguendo is fumisned if the offduty misconduct is of a kind that many people, even in these permissive days, regard as so infamous that they mistrust a Government agency which retains the perpetrators on its payroll, to a degree to impede its performance of its lawful missions.
I do not think that a man’s discreet extra-marital relations with a consenting adult female are anywhere now regarded as so infamous that they would reflect crippling discredit on an agency of Government which knowingly employed him, or her either. Thus the removal of Mr. Williams, on this ground, if persisted in, could not have stood up in court.
Mindel v. United States Civil Service Commission, 312 F.Supp. 485 (N.D.Cal. 1970), so holds in a well reasoned opinion. Besides Norton, swpra, the court refers for authority to Pope v. Volpe, decision of Judge Howard Corcoran of the District of Columbia, dated February 5, 1970. I do not know how this decision came to the California Judge’s knowledge, but have confirmed its actuality. The court in Mindel also cites Judge Learned Hand in Schmidt v. United States, 177 F.2d 450 (2d Cir. 1949), who holds that an alien admittedly guilty of this kind of misconduct cannot be barred from naturalization as not “of good moral character.” Pelicone v. Hodges, 116 U.S.App.D.C. 32 , 320 F.2d 754 (1963), appears to be along the same line as Mindel , with complications needless to enlarge upon here.
It would follow that plaintiff might properly refuse to answer questions about such relations. The charges recite that questions were on “matters of official interest” and if they were not properly so, no authority is referred to which shows why Mr. Williams had to answer them. Indeed, my culture group, those among whom I grew up, regarded it as infamous to give out derogatory information true or false, impugning the chastity of a woman. The only permissible response to queries along that line, if per *1356 sisted in, was a blow to the jaw. Mr. Williams may be that old-fashioned: at any rate, his sincere concern for the honor of this woman is shown by the fact that he married her and gave his name to her child.
When the only proper “service connection” in cases of off-duty misconduct is the possible disrepute to the agency, an illicit liaison which is decently concealed from view is less of an offense than one which is overt and flaunted, if it is one at all. The court in Mindel, supra,, agrees. In this regard an agency which persists in ferreting out its employees’ secret affairs may be said to be contributing to its own discredit. If the employee strives successfully to keep them secret, the agency’s repute flourishes as well as his own.
The fact is that the “false statement” charge is a useful means of getting rid of unwanted Government employees, and is legitimate in its place. But Government investigators who can ask improper questions and obtain a discharge for false answers have every incentive to keep on asking such questions. Many employees will trap themselves responding to improper questions with improper answers, not being advised by counsel and knowing no better. I, therefore, believe that the only way to protect employees from improper questions, those the investigator has no right to ask is to treat false answers the same as refusals to answer. If this is too sweeping for some cases, it is valid where a true answer would enrich the Government files only with derogatory information about the private life of an innocent person, one in no way concerned with the investigation.
I repeat, that none of the above observations apply to cases where a nexus with service interests other than possible disrepute. appears. Such a case I assume exists as to the incumbent of a “sensitive” position. Nothing said is intended to apply to any case except the one before the court, and in case of ambiguity should be so construed.
I believe, therefore, that Mr. Williams could have successfully challenged the first separation if he had gone about it in proper fashion, and then the second need not have occurred. To me the discharge notice of May 11, 1962, set forth in the majority opinion, proclaims its illegality on its own face. If Mr. Williams had answered investigators pressing him to admit these charges with false denials or evasions, I am not sure this would put him out of court. What I think we cannot condone is the affidavit, replete with false and fictitious particulars, which plaintiff concocted and submitted to obtain his reinstatement. I think an award of damages to Mr. Williams would be contrary to 28 U.S.C. § 2514 . See my views how we should apply this statute as stated, concurring, in Eastern School v. United States, 381 F.2d 321 , 438, 180 Ct.Cl. 676, 705 (1967). As to forfeiture of claims tainted by claimant's misconduct, compare generally United States v. Acme Process Equipment Co., 385 U.S. 138 , 87 S.Ct. 350 , 17 L Ed.2d 249 (1966). Consequently I would hold that the affidavit precludes Mr. Williams’ recovery in this court regardless of what conclusion we might draw from a mere review, appellate in character, of the CSC proceedings. I reach this conclusion with one eye, too, on Bryson v. United States, 396 U.S. 64 , 90 S.Ct. 355 , 24 L.Ed.2d 264 (1969), and United States v. Knox, 396 U.S. 77 , 90 S.Ct. 363 , 24 L.Ed.2d 275 (1969), which hold that a person can be prosecuted under 18 U.S.C. § 1001 for giving false information to a Government agency on a matter within its jurisdiction, even though it was information the agency could not have demanded. I would rely on these cases more heavily if I were satisfied Mr. Williams’ private life was within IRS jurisdiction, but certainly they cannot go unmentioned. Mr. Justice Harlan's language (in Bryson) at p. 72, 90 S.Ct. at p. 360 is very sweeping:
* * * it cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question which the Government should not have asked. Our legal system provides methods for challenging *1357 the Government’s right to ask questions — lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood. ******