PECKHAM, District Judge.
Plaintiff Mindel received an appointment as clerk with the San Francisco, California, post office on January 21, 1967. On August 11, 1967, the United States Civil Service Commission requested that he appear for an "interview" on August 16, 1967. At that interview, he was told that an investigation by the Commission had disclosed that he had lived in San Francisco with a young lady without the benefit of marriage. (Exhibit A to Complaint). Thereafter, in a letter dated September 19, 1967, the Division of Adjudication of the Bureau of Personnel Investigations of the United States Civil Service Commission notified Mindel that it had determined that he did not meet "suitability requirements" for employment in the federal service because his living with a woman to whom he was not married constituted "immoral conduct." The Commission directed the Post Office to separate plaintiff from the federal service. (Exhibit B to Complaint).
Mindel appealed. In a letter dated October 30, 1967, the Bureau of Personnel Investigations of defendant Commission affirmed the decision of the Adjudication Division. (Exhibit E to Complaint). Mindel then appealed this decision to the Board of Appeals and Review of defendant Commission. On February 8, 1968, the Board upheld the Bureau's determination. (Exhibit F to Complaint).
On February 21, 1968, Mindel received a letter from defendant Lee, Postmaster of San Francisco, stating that by reason of the Civil Service action he would be removed from the Post Office rolls as of that date. (Exhibit G to Complaint). Since that date, Mindel has not been employed by the federal government.
Jurisdiction is founded on 5 U. S.C. Section 702, which reads:
Mindel's claim is that the agency action terminating him was unconstitutional in two regards: it was arbitrary and capricious thus violating the Due Process Clause, and it violated the right to privacy guaranteed him by the Ninth Amendment. The Government seeks to oust this court of jurisdiction, claiming that as the agency's judgment was a discretionary one, it is not subject to judicial review. This argument has recently been answered by Chief Judge Bazelon in Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161, 1163-1164 (1969), who found judicial review proper, stating:
See Pope v. Volpe, Civ. No. 1753-69, (D.C. February 5, 1970).
Plaintiff Mindel's motion for summary judgment is granted. This court holds that Mindel's termination was arbitrary and capricious, and therefore violated due process. Furthermore, the termination violated his right to privacy as guaranteed by the 9th Amendment.
I. Mindel's termination was violative of the due process clause because it was arbitrary and capricious.
At the outset it is noted that Mindel was employed in a most insensitive position, that of postal clerk, and thus security-related cases are not appropriate. See Soltar v. Postmaster General of United States, 277 F.Supp. 579, 580 (N.D.Cal.1967). Further, plaintiff's alleged conduct was discreet, not notorious or scandalous. As stated in Plaintiff's Memorandum in Support of Motion for Summary Judgment, at p. 3:
The government contends that Mindel's conduct is "immoral". But see Schmidt v. United States, 177 F.2d 450, 452 (2nd Cir.1949) (Opinion of Judge Learned Hand that "We have answered in the negative the question whether an unmarried man must live completely celibate, or forfeit his claim to a `good moral character'; * * *.")
Even if Mindel's conduct can be characterized as "immoral", he cannot constitutionally be terminated from government service on this ground absent a rational nexus between this conduct and his duties as a postal clerk. "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." Norton, supra, 417 F.2d at 1167.
It should be well established today that no person can be denied government employment because of factors unconnected with the responsibilities of that position. Pickering v. Board of Education, 391 U.S. 563, 572-573, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Konigsberg v. State Bar of California, 353 U.S. 252, 262, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957). As it was summed up in Plaintiff's Memorandum, p. 7:
II. Mindel's termination because of his private sex life violates the right to privacy guaranteed by the Ninth Amendment.
The government cannot condition employment on the waiver of a constitutional right, Keyishian v. Board of Regents of New York, 385 U.S. 589, 605-606, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); even in cases where it has a legitimate interest, it may not invade "the sanctity of a man's home and the privacies of life," Griswold v. Conn., 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965), quoting from Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Here, of course, the Post Office has not even shown a rational reason, much less the "compelling reason" required by Griswold, to require Mindel to live according to its special moral code.
As Justice Brandeis said in his dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928):
Plaintiff's motion for summary judgment is granted.
It is so ordered.