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The statement shall be signed by the Executive Director and shall be as specific and detailed as security considerations permit, and shall be subject to amendment within 30 days of issuance. The General Counsel or a representative of his office and the Department of Justice shall be consulted on the drafting of the statement of charges and their opinions secured to insure that the charges are specific enough to be meaningful to the employee.

(f) The employee shall be informed in the statement of charges of his right (1) to a hearing, (2) to be represented by counsel of his choice, (3) to present witnesses and offer other evidence in his own behalf and in refutation of the charges brought against him, and (4) to cross-examine any witness offered in support of the charges.

(g)(1) An opportunity shall be afforded the employee to answer such charges and submit affidavits in support thereof within * 30 calendar days after receipt by him of the statement of charges or within 30 days after the amendment thereto. If the employee desires a hearing, his request for the hearing must accompany his written answers to the charges, or be submitted within 30 calendar days after receipt by him of the statement of charges or within 30 days after the amendment thereto. Statements in refutation of the charges and supporting documents shall be forwarded to the Security Officer, who shall consult with the General Counsel to determine the sufficiency of the answer. The General Counsel and the Security Officer shall make a joint recommendation to the Chairman as to the disposition of the case. If the General Counsel and the Security Officer are in disagreement, individual recommendations shall be made by them. If the employee fails to reply to the statement of charges within the time specified, without request for delay or other explanation, and does not desire a hearing, the case shall be decided on the record then at hand.

(2) Any record forwarded to the Chairman in accordance with subparagraph (1) may not include investigative information unless that information has been made available to the employee, and his comments or explanations, if any, included therewith.

(h) On the basis of the recommendations of the General Counsel, and the Security Officer and of his own review of the case, the Chairman shall make his determination on the record of a suspended employee as follows:

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(1) If he finds that reinstatement of the suspended employee in the position from which he has been suspended is clearly consistent with the interests of the national security, he shall restore the suspended employee to duty in such position, and the employee shall be compensated for the period of suspension, in accordance with title 5, U.S.C., section 5596.

(2) If he finds that reinstatement in the position from which he has been suspended is not clearly consistent with the interests of the national security, but that employment of the suspended employee in another position in the Commission is clearly consistent with the interests of the national security, he may restore the employee to duty in such other position, if such restoration is administratively feasible, and the employee shall be compensated for the period of suspension in accordance with title 5, U.S.C, section 5596.

(3) If he finds that reinstatement of the suspended employee to any position in the Commission is not clearly consistent with the interests of the national security, he shall refer the case to the Security Officer for the purpose of scheduling a hearing. In the event the suspended employee does not desire a hearing, the Chairman shall terminate the employment of the suspended employee.

(i) The employee shall be given a hearing before a hearing board composed of at least three impartial, disinterested persons, selected in accordance with the procedure set forth in section 8 of these regulations. The hearing shall be conducted in strict accordance with the procedure set forth in section 9 of these regulations. The recommendation of the hearing board shall be in writing and shall be signed by all members of the board. One copy of the recommendation shall be sent to the Chairman.

(j) The record, as described in paragraph 9(n) of these regulations, shall be reviewed by the Chairman, who will make the final decision.

(k) The employee shall be furnished a written statement of the decision of the Chairman.

(1) Copies of all notices of personnel actions taken in security cases shall be supplied at once by the Security Officer to the Division of Operations, Bureau of Personnel Investigations.

SEC. 7. Reemployment of employees whose employment has been terminated.-No person whose employment has been terminated by any department or agency

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other than the Commission under or pursuant to the provisions of title 5, U.S.C., section 7532, or pursuant to the said Executive Order No. 9835 or any other security or loyalty program, shall be employed in the Commission unless the Chairman finds that such employment is clearly consistent with the interests of the * national security (title 5, U.S.C, section 3571) and unless the Commission in its capacity as central personnel agency determines that such person is eligible for such employment. The finding of the Chairman and the determination of the Commission shall be made a part of the personnel record of the person concerned.

All violations of law as disclosed in the investigation or proceedings under the program, should be reported immediately to the Division of Internal Security, Department of Justice, through the Office of the General Counsel.

SEC. 8. Security hearing boards.-(a) Security hearing boards of the Commission shall be composed of not less than three civilian officers or employees of the Federal Government selected by the Security Officer from rosters maintained for that purpose by the Civil Service Commission in Washington, D.C., and at regional offices of the Commission.

(b) No officer or employee of the Commission shall serve as a member of a security hearing board.

(c) No person shall serve as a member of a security hearing board hearing the case of an employee with whom he is acquainted.

(d) The Security Officer or the regional director shall, whenever appropriate, provide stenographic facilities to the security hearing boards of the Commission when needed to provide an accurate stenographic transcript of the hearing.

(e) The Security Officer shall be responsible for the preparation and presentation of the charges against the employee before the security hearing board. Whenever possible the Chairman shall be represented at the hearing by a representative of the Office of the General Counsel. Such representative shall not act as prosecutor, but he shall aid the board in its determination as to procedure. Upon request of the employee, such representative shall advise the employee of his rights before the board.

SEC. 9. Hearing procedure.--(a) Hearings before security hearing boards

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shall be conducted in an orderly manner, and in a serious, business-like * atmosphere of dignity and decorum, and shall be expedited as much as possible.

(b) Testimony before the hearing boards shall be given under oath or affirmation. (c) The hearing board shall take whatever action is necessary to insure the employee of a full and fair consideration of his case. The employee shall be informed by the board of his right (1) to participate in the hearing, (2) to be represented by counsel of his choice, (3) to present witnesses and offer other evidence in his own behalf and in refutation of the charges brought against him, and (4) to crossexamine any witness offered in support of the charges.

(d) Hearings shall be opened by the reading of the letter setting forth the charges against the employee, and the statements and affidavits by the employee in answer to such charges, unless such reading is waived by mutual consent of the board and the employee or his counsel. In any event, such material must be incorporated into the record.

(e) Both the Commission and the employee may introduce such evidence as the hearing board may deem material in the particular case, except that the hearing board shall not admit as evidence investigative information not made available to the employee whose removal is sought under Executive Order 10450, or his counsel. Rules of evidence shall not be binding on the board, but reasonable restrictions shall be imposed as to the relevancy, competency, and materiality of matters considered, so that the hearings shall not be unduly prolonged. If a person who has made charges against the employee is called as a witness but does not appear, his failure to appear shall be considered by the board in evaluating such charges, as well as the fact that there can be no payment for travel of witnesses.

(f) The employee or his counsel shall have the right to control the sequence of witnesses called by him. Reasonable crossexamination of witnesses by the employee or his counsel shall be permitted.

(g) The hearing board shall give due consideration to documentary evidence developed by investigation, including party membership cards, petitions bearing the employee's signature, books, treatises or articles written by the employee, and testimony by the employee before duly

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constituted authorities; however, no evidence may be considered which has not been made available to the employee or his counsel. The fact that such evidence has been considered shall be made a part of the transcript of the hearing.

(h) Hearing boards may, in their discretion, invite any person to appear at the hearing and testify. However, a board shall not be bound by the testimony of such witness by reason of having called him, and shall have full right to crossexamine him.

(i) Subject to the prohibition in paragraph (e) of this section against a hearing board receiving any investigative information that is not made available to the employee or his counsel, hearing boards shall conduct the hearing proceedings in such manner as to protect from disclosure of information affecting the national security or tending to disclose or compromise investigative sources or methods.

(j) Hearing shall be private. There shall be present at the hearing only the members of the hearing board, the stenographer or stenographers, the employee, his counsel, Commission employees concerned, and the witness, only when actually testifying.

(k) If, after due notice of the time and place of hearing, the employee, without request for delay or other explanation, fails to appear for such hearing, the hearing board shall consider the case and make its recommendation on the basis of the record then at hand.

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shall constitute a permanent part of the record. Upon request, the employee or his counsel shall be furnished a copy of the transcript of the hearing.

(n) The board shall reach its conclusions and base its recommendation on the record which shall include the transcript of the hearing and all investigative information and evidence made available to the employee or his counsel. These conclusions and the recommendation shall be in writing, supported by reasons, and signed by all members of the board. One copy the reof, together with the complete record of the case, shall be sent to the Chairman, SEC. 10. Procedure in case of ap*plicants.--(a) In entirely clear cases, evaluation and determination based on appropriate investigation conducted in cases of applicants for appointment to regional office sensitive positions shall be made by the regional director or his designee. Clear cases are defined as cases containing no security questions in any degree whatsoever, and no derogatory suitability information which may involve security. The regional director may effect appointment in such cases and need not forward the investigative reports to the Security Officer except for the postappointment audit provided for in the procedures part of this chapter.

(b) All other reports of investigation received in cases of persons tentatively selected for appointment to sensitive positions shall be evaluated by the Security Officer. Such persons should, whenever appropriate, have an opportunity to explain or refute derogatory security information developed in an investigation before being rejected or nonselected on security grounds. Statements of an applicant made to explain or refute derogatory security information concerning him shall be forwarded to the Security Officer for his decision. If the applicant fails to explain or refute derogatory security information concerning him, the case shall be decided by the Security Officer on the record then at hand. Cases in which an adverse decision is made will be referred to the appropriate Commission office for further processing connection with known applications for eligibilities such persons may have.

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from public employment was approved by the United States District Court for the District of Columbia, George L. Hart, Jr., J., and the applicant appealed. The Court of Appeals held that where the Commission excluded applicant from public employment on ground that he had engaged in "immoral conduct" which conclusion was supported by statements that applicant was a "homosexual" and had engaged in "homosexual conduct," judgment of District Court approving the Commission's action would be reversed.

Reversed and remanded with instructions.

Burger, Circuit Judge, dissented.

In

tions" at grade levels GS-9, 11 and 12, subject to further investigation. April 1962, he appeared before a Civil Service investigator, who requested explanation regarding a 1947 arrest for "loitering," a 1951 arrest "for investigation," and "information [in the Civil Service Commission's possession] indicating that you are a homosexual." Appellant explained the circumstances of the 1947 arrest,1 stated that he was "not specifically charged with a law violation" in 1951, and refused to comment on the alleged homosexuality because he did "not believe the Question is pertinent in so far as job performance is concerned."

On May 16, 1962, the Commission "disqualified [appellant] for employment in the competitive service because of immoral conduct." He then requested a "specification of how, when and where [he had allegedly] conducted [himself] immorally so that [he] may adequately answer the broad, indefinite allegation of 'immoral conduct' "3 The Commission's Board of Appeals and Review responded only that "the record disclosed convincing evidence that you have engaged in homosexual conduct, which is considered contrary to generally-recognized and accepted standards of morality.

*

1. Appellant's explanation was as follows:

"At Lafayette Square Men's Room, I was picked up by a police officer. After asking questions I would not answer, he had me charged with lortering [sic.] There was a man in the Men's Room who was behaving in an odd manner. I found I was unable to urinate and stepped outside to wait for him to come out. I went back in about ten minutes later and this fellow was still in the Men's Room in the same odd position (leaning over the urinal with his hand propped against the wall). The Police officer followed me in and when I was leaving he said he wanted to talk with me."

2. The Commission relied on Civil Service Regulations, 5 C.F.R. § 2.106 (1961 ed.): "Disqualifications of applicants.

"(a) Grounds for disqualification. An applicant may be denied examination and an eligible may be denied appointment for any of the following reasons:

*

183

**" After exhausting his administrative remedies, appellant unsuccessfully attacked the Commission's action in the District Court. This appeal followed.

Appellant has standing to challenge his exclusion from public employment. The Government's contrary argument is that "there is no basic right to public employment; stated another way, the power of appointment-absent statute or regulation is exclusively within the prerogative of the Executive." The argument is too broad. "[I]t does not at all follow that because the Constitution does not guarantee a right to public employment, [the Government] may resort to any scheme for keeping people out of such employment. Law cannot reach every discrimination in practice. But doubtless unreasonable discrimination * would not survive constitutional challenge." As this court has said, "One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law."

Appellant is an applicant for public employment, and thus may have less statutory protection against exclusion than an employee. But he is not without con

"(3) Criminal, infamous, dishonest, immoral, ог notoriously disgraceful conduct;"

3. Judge McGowan's opinion clearly shows that appellant did not abandon this request either before the Commission or this court.

4.

5.

Brief for appellee, p. 6.

Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 725, 71 S.Ct. 909, 915, 95 L.Ed. 1317 (1951) (concurring opinion). See Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961).

6. Homer v. Richmond, 110 U.S.App.D.C. 226, 229, 292 F.2d 719, 722 (1961).

7. See, e.g., 5 U.S.C. § 652 (1958), regarding procedural requirements for removal or suspension from classified civil service; 5 C.F.R. § 731.302(a), that after one