holding due process satisfied by notice, examination of evidence and submission of arguments in rebuttal when a homosexual employee was discharged from the CIA because he presented a security risk
How later courts described this case
- holding due process satisfied by notice, examination of evidence and submission of arguments in rebuttal when a homosexual employee was discharged from the CIA because he presented a security risk
- CIA employee alleged he was dismissed because of homosexual orientation, and court concluded that if, indeed, CIA action reflected policy of terminating employment of all homosexuals, CIA would have to justify why this policy was necessary in interests of United States
- suggesting in dicta that a dismissal based on Doe’s homosexuality would not present a colorable constitutional claim
- "Although ... the Supreme Court's recent decision in Bowers v. Hardwick [held] that homosexual conduct is not constitutionally protected, the Court did not reach the different issue of whether an agency of the federal government can discriminate against individuals merely because of sexual orientation." (footnotes omitted and emphasis in the original)
Written by the judges who cited it.
The opinion
GINSBURG, Circuit Judge,
concurring:
The careful reader of the opinions in this case will find that the two sides part company widely only at the last step of the way. First, both sides agree that the “wisdom” of the Director’s employment termination decisions is not for courts to judge. Majority Opinion at 1522; see id. at 1521-22 (court presumes Director “is acting lawfully and in good faith” unless plaintiff “point[s] to evidence of an impermissible basis — such as sex, race, hair color, etc.— for the termination”). Second, both sides also agree that there is, indeed, a “role” for the court to play. See Partial Dissent at 1533-34. The dissent, although more reservedly than the majority, recognizes that the court’s review legitimately extends *1525 to the question whether “the Director has acted in excess of statutory authority.” Majority Opinion at 1521; see Partial Disent at 1533 (acknowledging the court’s legitimate function, when its review authority is invoked, “to ensure that the Director acted within the bounds of his statutory authority”).
The majority, but apparently not the dissent, regards it as the province of the court to entertain arguable claims of constitutional rights. See Majority Opinion at 1521, 1522. While both sides would review to keep the Director within the bounds of ordinary legislation, the dissent, it seems, would not necessarily extend court review to the Director’s compliance with the nation’s highest law. I find the dissent’s stopping point curious, and not persuasively explained. Whether a court may review at all, and how it should rule if it does review, of course, are discrete questions. Cf . Johnson v. Robison, 415 U.S. 361 , 94 S.Ct. 1160 , 39 L.Ed.2d 389 (1974) (statute precluding judicial review of Veterans’ Administration decisions did not bar court consideration of constitutional claims — Court went on to decide merits against plaintiff).