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07/05/74 Anonymous, v. Henry A. Kissinger

July 5, 1974

ANONYMOUS, APPELLANT

v.

HENRY A. KISSINGER, SECRETARY, UNITED STATES DEPARTMENT OF STATE, ET AL. 1974.CDC.162



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia.

APPELLATE PANEL:

Fahy, Senior Circuit Judge, Leventhal and MacKinnon, Circuit Judges. MacKinnon, Circuit Judge, concurring in part and dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FAHY

Opinion for the court filed by Senior Circuit Judge FAHY.

Opinion concurring in part and dissenting in part filed by Circuit Judge MACKINNON.

FAHY, Senior Circuit Judge:

This appeal is from a judgment of the District Court in a proceeding in which appellant unsuccessfully challenged the lawfulness of his dismissal as a temporary employee in a sensitive position in the Peace Corps, an agency in the Department of State. *fn1

Appellant moved for summary judgment, accompanying his motion with an affidavit of his own and another of his counsel. *fn2 Appellees' answered appellant's Amended and Supplemental Complaint (the complaint) and also moved for summary judgment and to strike the affidavits. *fn3 The motions of appellees were granted by the order on appeal. I.

The following facts appear to the court to have been undisputed when the motions for summary judgment were decided. Appellant's appointment in November, 1968, was designated as an "Emergency Appointment to Sensitive Position Pending Completion of Full Field Investigation." *fn4 His performance on the job was entirely satisfactory and his loyalty was not questioned. As part of a routine security investigation he had filled out Standard Form 86 when he had applied for employment. Question No. 19 on this form read:

Have you ever had a nervous breakdown or have you ever had medical treatment for a mental condition?

He answered, "No." Although he had never had a serious mental illness or nervous breakdown, he told those conducting the investigation that he had on two occasions consulted psychiatrists briefly with minor complaints related to anxiety. *fn5 On February 5, 1969, the security investigators subjected him to a humiliating and degrading interrogation dealing principally with his sex life. During this interrogation the investigators seemed to imply that appellant was maladjusted sexually based on his admission to them that he had two isolated homosexual experiences in early adolescence and that he and his wife had lived together from time to time before they were married.

About a month later the agency directed him to report to Dr. Francis Barnes, a private physician and the Peace Corps' Senior Consultant in Psychiatry. Upon advice of counsel he refused to do so. He also rescinded a release he had previously signed during the interrogation agreeing to make available to the agency confidential medical information. He offered through counsel to have the doctors he had consulted submit written reports about him for the Government psychiatrist to review. The agency rejected this offer, as well as a subsequent offer by appellant to meet with the Government psychiatrist, accompanied by his counsel and his own psychiatrist. The agency, however, insisted upon an examination by a psychiatrist selected or employed by the Government and upon access to all appellant's medical records in the possession of his psychiatrists. Appellant, deeming this an unwarranted invasion of his privacy, refused. During this period his attorney at the time stated in a letter of March 21, 1969, to the General Counsel of the agency, that an attorney in the office of the General Counsel said to appellant's attorney that the agency was considering dismissing appellant because of "alleged homosexuality -- or, in the alternative, his private sexual relations with his fiancee." *fn6

During this month of March, 1969, appellant was advised by the agency that he would be dismissed if he did not release his medical records and submit to questioning by a Government psychiatrist. Thereupon, on March 26, 1969, appellant filed his original Complaint in the District Court seeking to enjoin such action and for related relief. No injunctive relief preventing, the agency notified appellant he was to be dismissed as of April 15, 1969, because of his "refusal to cooperate" in the Peace Corps' efforts to resolve its ...


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