Appellant a former GS-14 budget analyst in the National Aeronautics and Space Administration (NASA) seeks review of his discharge for "immoral conduct" and for possessing personality traits which render him "unsuitable for further Government employment." As a veterans preference eligible he could be dismissed only for "such cause as will promote the efficiency of the service." *fn1 Since the record before us does not suggest any reasonable connection between the evidence against him and the efficiency of the service we conclude that he was unlawfully discharged.

I.

Appellant's dismissal grew out of his arrest for a traffic violation. In the early morning of October 22 1963 he was driving his car in the vicinity of Lafayette Square. He pulled over to the curb picked up one Madison Monroe Procter drove him once around the Square and dropped him off at the starting point. The two men then drove off in separate cars. Two Morals Squad officers having observed this sequence of events gave chase traveling at speeds of up to 45 miles per hour. In the parking lot of appellant's Southwest Washington apartment building Procter told the police that appellant had felt his leg during their brief circuit of Lafayette Square and had then invited him to appellant's apartment for a drink. The officers arrested both men *fn2 and took them "to the Morals Office to issue a traffic violation notice."

Pending issuance of the traffic summons the police interrogated appellant and Procter for two hours concerning their activities that evening and their sexual histories. Meanwhile pursuant to an arrangement the head of the Morals Squad telephoned NASA Security Chief Fugler who arrived on the scene at 3:00 a.m. in time to hear the last of the interrogation. Fugler was then shown the officers' confidential arrest record and was permitted to monitor incognito a 20-minute interrogation of appellant held especially for his benefit. Throughout appellant steadfastly denied that he had made a homosexual advance to Procter.

At last appellant was given his traffic summons. Fugler then identified himself to appellant and invited him down to NASA for a talk. There in a secondfloor office of the deserted "Tempo L" building Fugler and a colleague interrogated him until after 6:00 a.m. During this interrogation appellant allegedly conceded that he had engaged in mutual masturbation with other males in high school and college that he sometimes experienced homosexual desires while drinking that on rare occasions he had undergone a temporary blackout after drinking and that on two such occasions he suspected he might have engaged in some sort of homosexual activity. He also said that he had experienced a blackout when he met Procter recalling only that he had invited the man up for a drink.

Subsequently in his formal reply to a notice of proposed dismissal appellant specifically denied that he was a homosexual that he had made an indecent advance to Procter and that he had knowingly engaged in any homosexual activity during his adult life. Procter however confirmed in a written statement the story he gave the police at the time of his arrest and stated that "it would take an idiot not to be able to figure that he [appellant] wanted to have sex act on me." Procter said he had never seen appellant before that night.

NASA concluded that appellant did in fact make a homosexual advance on October 22 and that this act amounted to "immoral indecent and disgraceful conduct." It also determined that on the basis of his own admissions to Fugler even as subsequently clarified appellant possesses "traits of character and personality which render [him] unsuitable for further Government employment." A Civil Service Appeals Examiner and the Board of Appeals and Review upheld these conclusions. In appellant's action for reinstatement the District Court granted appellee's motion for summary judgment.

II

Congress has provided that protected civil servants shall not be dismissed except "for such cause as will promote the efficiency of the service." The Civil Service Commission's regulations provide that an appointee may be removed inter alia for "infamous immoral or notoriously disgraceful conduct" *fn3 and for "any other disqualification which makes the individual unfit for the service." *fn4 We think -- and appellant does not strenuously deny -- that the evidence was sufficient to sustain the charge that consciously or not he made a homosexual advance to Procter. Accordingly the question presented is whether such an advance or appellant's personality traits as disclosed by the record are "such cause" for removal as the statute requires.

The Fifth Circuit Court of Appeals recently refused to consider a substantive attack on a dismissal for private homosexual conduct apparently believing that it had no authority to review on the merits a Civil Service determination of unfitness. *fn5 Court have it is true consistently recognized that the Commission enjoys a wide discretion in determining what reasons may justify removal of a federal employee; *fn6 but it is also clear that this discretion is not unlimited. The Government's obligation to accord due process sets at least minimal substantive limits on its prerogative to dismiss its employees: it forbids all dismissals which are arbitrary and capricious.

*fn7 These constitutional limits may be greater where as here the dismissal imposes a "badge of infamy " *fn8 disqualifying the victim from any further Federal employment damaging his prospects for private employ and fixing upon him the stigma of an official defamation of character. *fn9 The Due Process Clause may also cut deeper into the Government's discretion where a dismissal involves an intrusion upon that ill-defined area of privacy which is increasingly if indistinctly recognized as a foundation of several specific constitutional protections.

*fn10 Whatever their precise scope these due process limitations apply even to those whose employment status is unprotected by statute. *fn11 And statutes such as the Veterans' Preference Act were plainly designed to confer some additional job security not enjoyed by unprotected federal employees. As we recently observed in a closely related context

The requirement that there be "cause" for discharge imposes higher duties on the Government-as-employer than merely abstaining from violation of constitutional rights a requirement that gives no substantive content to the statute *fn12

Accordingly this court has previously examined the merits of a dismissal involving a statutorily protected employee charged with off-duty homosexual conduct. *fn13 In other cases we have recognized that besides complying with statutory procedural requirements the employer agency must demonstrate some "rational basis" for its conclusion that a discharge "will promote the efficiency of the service." *fn14 "The ultimate criterion [is] whether the employer acted reasonably" *fn15 As we summarized in Leonard v. Douglas *fn16

Congress did not attempt a definition of "cause " providing only that it must be one that would promote the efficiency of the service. Some latitude was thus left to those responsible for administering the Act. Faithfulness to its purpose to reward those who served in the armed forces by granting a protective preference must be maintained. But the preference granted does not protect a veteran in a position when removal therefrom viewed in the light of competing policies and all the circumstances can reasonably be said to lead to increased efficiency in governmental operations. *fn17

III.

Preliminarily we must reject appellee's contention that once the label "immoral" is plausibly attached to an employee's off-duty conduct our inquiry into the presence of adequate rational cause for removal is at an end. A pronouncement of "immorality" tends to discourage careful analysis because it unavoidably connotes a violation of divine Olympian or otherwise universal standards of rectitude.

However the Civil Service Commission has neither the expertise nor the requisite anointment to make or enforce absolute moral judgments and we do not understand that it purports to do so. Its jurisdiction is at least confined to the things which are Caesar's and its avowed standard of "immorality" is no more than "the prevailing mores of our society." *fn18

So construed "immorality" covers a multitude of sins. Indeed it may be doubted whether there are in the entire Civil Service many persons so saintly as never to have done any act which is disapproved by the "prevailing mores of our society." Analytical philosophers would distinguish between acts conventionally regarded as morally wrong and acts which are disapproved merely as indecent repulsive or unesthetic; but if the Commission makes such a distinction it is of no benefit to employees who may assertedly be dismissed for "indecent and disgraceful" conduct as well as for "immorality."

We are not prepared to say that the Commission could not reasonably find appellant's homosexual advance to be "immoral " "indecent " or "notoriously disgraceful" under dominant conventional norms. But the notion that it could be an appropriate function of the federal bureaucracy to enforce the majority's conventional codes of conduct in the private lives of its employees is at war with elementary concepts of liberty privacy and diversity. And whatever we may think of the Government's qualifications to act in loco parentis in this way the statute precludes it from discharging protected employees except for a reason related to the efficiency of the service.

Accordingly a finding that an employee has done something immoral or indecent could support a dismissal without further inquiry only if all immoral or indecent acts of an employee have some ascertainable deleterious effect on the efficiency of the service. The range of conduct which might be said to affront prevailing mores is so broad and varied that we can hardly arrive at any such conclusion without reference to specific conduct. Thus we think the sufficiency of the charges against appellant must be evaluated in terms of the effects on the service of what in particular he has done or has been shown to be likely to do. *fn19

IV.

In Dew v. Halaby we upheld over strong dissent the dismissal of an air traffic controller predicated in part on homosexual acts he had committed some years before. *fn20 That case does not control the present controversy since it rested on the special demands of a position entailing continuing responsibility for many lives *fn21 and on the fact that the appellant was a "new employee with something to hide " *fn22 not an established employee who had been subjected to a mid-career investigation.

Moreover the Supreme Court granted certiorari in Dew. *fn23 The writ was dismissed by agreement of the parties when the FAA Administrator rescinded his adverse action against the appellant reinstated him and granted him back pay. *fn24 If these official actions may not be deemed a confession of error the history of the case at least casts considerable doubt on the authority of what was in any event a narrow holding. *fn25

The homosexual conduct of an employee might bear 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. As we acknowledged in Dew v. Halaby it may in some circumstances be evidence of an unstable personality unsuited for certain kinds of work. If an employee makes offensive overtures while on the job or if his conduct is notorious the reactions of other employees and of the public with whom he comes in contact in the performance of his official functions may be taken into account. Whether or not such potential consequences would justify removal they are at least broadly relevant to "the efficiency of the service."

The peculiar feature of appellant's dismissal however is that it rests on none of these possible effects on the service. The NASA official who fired him Mr. Garbarini testified that appellant was a "competent employee" doing "very good" work. In fact Garbarini was "not worried" about any possible effect on appellant's performance and went so far as to inquire of personnel officers "if there was any way around this kind of problem for the man." He "considered whether or not we had real security problems here to worry about" and concluded "there was not enough of that to influence me." Appellant's duties apparently did not bring him into contact with the public and his fellow employees were unaware of his "immorality." Nonetheless Garbarini's advisers told him that dismissal for any homosexual conduct was a "custom within the agency " and he decided to follow the custom because continued employment of appellant might "turn out to be embarrassing to the agency" in that "if an incident like this occurred again it could become a public scandal on the agency."

V.

Thus appellee is now obliged to rely solely on this possibility of embarrassment to the agency to justify appellant's dismissal. The assertion of such a nebulous "cause" poses perplexing problems for a review proceeding which must accord broad discretion to the Commission. We do not doubt that NASA blushes whenever one of its own is caught in flagrante delictu; but if the possibility of such transitory institutional discomfiture must be uncritically accepted as a cause for discharge which will "promote the efficiency of the service " we might as well abandon all pretense that the statute provides any substantive security for its supposed beneficiaries.

A claim of possible embarrassment might of course be a vague way of referring to some specific potential interference with an agency's performance; but it might also be a smokescreen hiding personal antipathies or moral judgments which are excluded by statute as grounds for dismissal. A reviewing court must at least be able to discern some reasonably foreseeable specific connection between an employee's potentially embarrassing conduct and the efficiency of the service. Once the connection is established then it is for the agency and the Commission to decide whether it outweighs the loss to the service of a particular competent employee.

In the instant case appellee has shown us no such specific connection. Indeed on the record appellant is at most an extremely infrequent offender *fn26 who neither openly flaunts nor carelessly displays his unorthodox sexual conduct in public. *fn27 Thus even the potential for the embarrassment the agency fears is minimal. We think the unparticularized and unsubstantiated conclusion that such possible embarrassment threatens the quality of the agency's performance is an arbitrary ground for dismissal. *fn28

Appellee relies on the cases which have sustained dismissals on account of financial irresponsibility. *fn29 Some of these cases have indeed cited the risk of "embarrassment" *fn30 or "discredit" *fn31 to the employing agency; but the risk to which they refer involves a special kind of embarrassment. The wages of governmental employees unlike those of other employees are not subject to garnishment. Creditors thus deprived of an important security and collection device may frequently importune a federal employer to pressure delinquent employees into paying their debts. *fn32 Such importunings in themselves necessarily have some effect on the efficiency of the service. Moreover it is likely that commercial establishments would refuse to extend credit to many otherwise eligible federal employees without some assurance of employer support for their collection efforts.

That eventuality should it occur would have an obvious impact on the attractiveness of federal employ and in turn on the quality of the government's work product. In short the anticipated discredit to the agency from an employee's financial delinquency is discredit with a specific sector of the public which may have an ascertainable effect on the agency's ability to perform its duties. The concern at least relates to some more concrete injury to the service than a general tarnishing of an agency's antiseptic public image. Furthermore it is especially significant that the Civil Service Commission apparently does not invariably discharge known financial delinquents: agencies are expected to consider the employee's good faith and to make efforts to persuade him to pay his debts as soon as possible; only inveterate and unrepentant dead-beats are to be disciplined by dismissal. *fn33

Lest there be any doubt we emphasize that we do not hold that homosexual conduct may never be cause for dismissal of a protected federal employee. Nor do we even conclude that potential embarrassment from an employee's private conduct may in no circumstances affect the efficiency of the service. What we do say is that if the statute is to have any force an agency cannot support a dismissal as promoting the efficiency of the service merely by turning its head and crying "shame." *fn34

Since we conclude that appellant's discharge cannot be sustained on the grounds relied on by the Commission the judgment of the District Court must be

Reversed.

Dissenting: TAMM

The majority once again violates the judicial cloister erected by the Administrative Procedure Act and rushes out robes flying into the forbidden area of administrative discretion to give kind assistance to the subject of what it feels to be highwayman tactics at the hands of the Civil Service Commission. Sensitive to phantom defects in administrative action but insensitive to reality they turn their heads and cry "shame" at the same time avoiding the calling of the chorus of cases outlining the proper scope of judicial review of agency determinations.

They shrug off the Commission's findings that this wayward traveler has engaged in off-duty homosexual conduct and that he experiences periods of memory "blackout" while drinking after which he assumes or suspects that he has engaged in overt homosexual activity in order to pursue exotic ideas lurking in the legal underbrush. Picking their way across a quagmire of rhetoric they engage in casuistic reasoning clever but false to chide the Commission and frustrate its delegated function.

This court plainly held in the case of Hargett v. Summerfield 100 U.S.App.D.C. 85 88 243 F.2d 29 32 (1957) that "employee removal and discipline are almost entirely matters of executive agency discretion " and "that so long as there [is] substantial compliance with applicable procedures the administrative determination [is] not reviewable as to the wisdom or good judgment of the department exercising [its] discretion." (Citations omitted.) I have felt constrained to follow this view time and again see e.g. dissenting opinion in Meehan v. Macy U.S.App.D.C. (No. 20 812 decided May 12 1969) (en banc) although in so doing I remain a vox clamantis in deserto. With regard to this case I am convinced that the record substantially supports the action of the Commission in dismissing this man in order to promote the efficiency of the service and accordingly I would affirm.