(dissenting).
My colleagues do not agree and hence there is no opinion of the court on the basis of the remand in this case. I find myself unable to agree with either of the two opinions. Judge Bazelon reaches far out to deal with a problem which is not before us and which is essentially one of broad Legislative and Executive policy. The basic issue in the case is narrow and limited: Is there a reasonable básis for the Commission’s determination that conduct of Appellant, which hé asked the Commission to “assume” and which is admittedly criminal under existing statutes, affords an adequate basis for his disqualification for federal employment? However, since my colleagues do not agree with each other and each undertakes to decide a question not properly here for decision, I set forth my analysis of the case.
(D
Whatever the merits of Appellant’s contention that “procedural due process” entitled him to a statement of the specifics of the conduct the Commission found him to have engaged in, Appellant has waived that contention by his actions and litigation position before the Commission. At every stage of his appeal within the Commission Appellant’s position was a challenge to the right of the Government to inquire at all into his sexual habits, on the ground that they were irrelevant to his suitability for employment. To be sure, he also demanded to know the specifics of the conduct underlying the Commission’s decision, but the essence of his position was that his private life was none of the Government’s business. This is seen, for example, in his refusal at the Commission interview to respond to the Commission’s request that he comment on the Commission’s statement that it had evidence indicating his homosexuality. Instead of requesting details, or making a denial, Appellant responded, “I do not believe the Question is pertinent in so far as job performance is concerned.” Similarly Appellant’s prayer for relief to the Board of Appeals and Review sought summary reversal of the action taken on his application — not merely disclosure to him of the adverse information in his file for purposes of rebuttal. As the Board remarked,
The contentions which you have submitted do not materially refute the basis for the action taken, but appear to disagree * * * only with the Commission’s determination that homosexual conduct is immoral in nature and does not meet requirements of suitability for the Federal service.
Appellant’s request to the Board of Appeals for summary reversal of the Commission action in his case taken alone, or even together with his constant assertion of the irrelevance of his sexual habits to employment eligibility, might not suffice as a waiver of the issue of specificity. But on his final administrative appeal, to the Commissioners themselves, Appellant explicitly requested the Commission to
assume that I have engaged in “homosexual conduct,” and let me equate “homosexual conduct” with “homosexual outlet” as used in Chapter 21, pages 610-666, of Sexual Behavior of the Human Male by Alfred C. Kinsey, Wardell B. Pomeroy, and Clyde E. Martin, and with “homosexual responses and contacts” as used in Chapter 11, pages 446-501, of Sexual Behavior of the Human Female by the same authors with Paul Gebhard. (Footnotes omitted.)
In this situation the Commission had the right to take Appellant at his word and to assume he had engaged in conduct which, as indicated by his references, would have been punishable as a crime under D.C.Code § 22-3502 (1961). Thus Appellant himself, by his litigation position at the interview, before the Board of Appeals and before the Commission, supplied the very specificity he now claims he sought. I do not believe it open to him to raise in this court the question of his right to have the Commission be more specific after relieving the Commission of *188any such duty it might otherwise have had, by asking that the Commission “assume * * * homosexual conduct.”
(2)
Assuming for argument that Appellant has preserved his procedural contentions, however, I analyze the merits of those contentions. Judge Bazelon appears to adopt Appellant’s argument that the due process clause of the Fifth Amendment required the Commission to disclose in greater detail its evidence against Appellant. Judge Bazelon does not in terms say so, but his view presumably is that the Commission’s procedure unduly restricted the “liberty” spoken of in that amendment. I believe that position to be untenable. As a mere applicant for government employment, Appellant can hardly claim higher rights of process than one who is already a government employee. And the Supreme Court, in Cafeteria & Restaurant Workers Union Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961), pointed out that it had
consistently recognized that * * * the interest of a government employee in retaining his job * * * can be summarily denied. It has become a settled principle that government employment, in the oJbsence of legislation, can be revoked at the will of the appointing officer. (Emphasis added.)
See also Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Bailey v. Richardson, 86 U.S.App.D.C. 248, 267,182 F.2d 46, 65 (1950), aff’d by an equally divided Court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352 (1951).
In sum it must be conceded that the Government in its capacity as an employer may “hire and fire,” select and reject at will, restrained only as Congress by statute, the President by Executive Order or an Executive Agency by Regulation has curtailed that right. To put it another way, absent statute or authorized regulation conferring on Appellant a right to more refined procedures than given the Commission’s action must stand unless its announced basis is “patently arbitrary or discriminatory.” Cafeteria Workers, supra, 367 U.S. at 898, 81 S.Ct. 1743. See also Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). It may be that the government employee’s or employment seeker’s lack of procedural rights, absent statute or regulation, effectively undermines his conceded substantive right not to be excluded from employment for arbitrary reasons, see Cafeteria Workers, supra, 367 U.S. at 900, 81 S.Ct. 1743 (dissenting opinion); but it is hardly the province of a Court of Appeals to erect procedural safeguards thus far consistently rejected by the Supreme Court.1
Judge McGowan takes a different position and avoids any constitutional issue because he finds the Commission’s procedures inconsistent with the congressional purpose manifested in 5 U.S.C. § 631. He relies on the following language of that section:
The President is authorized to prescribe such regulations for the admission of persons into the civil service of the United States as may best promote the efficiency thereof, and ascertain the fitness of each candidate in respect to age, health, character, knowledge, and ability for the branch of service into which he seeks *189to enter; and for this purpose he may employ suitable persons to conduct such inquiries * * *.
I am unable to read this statute as creating in Appellant the rights he claims. I read it as an authorization addressed to the President, and no one else, empowering him to promulgate regulations dealing with the selection of government employees and to ascertain the fitness and ability of candidates.
The President must've presumed to know the powers conferred upon him by Section 631 to promulgate appropriate procedures for dealing with applicants for federal employment. Acting pursuant to that Section, President Kennedy in 1962 directed the Commission to formulate regulations dealing with adverse actions against employees of the departments and agencies of the federal government.2 I intimate no view as to what the Regulations so promulgated (excerpted in note 2, supra) would require the Commission to disclose to Appellant were he an employee rather than simply an applicant. I point to those Regulations merely to show the manner in which they were promulgated and their purpose. As I see it this is the way in which Section 631 was intended to operate. The skeletal framework of that Section can confer no rights on Appellant Scott as an applicant until it has been implemented by Executive action comparable to that taken by President Kennedy with respect to adverse actions against employees.
(B)
Because in my view Appellant has waived his procedural contentions I turn to a consideration of his substantive argument that homosexual conduct is an arbitrary ground for exclusion from employment. This is the argument which, by inference at least, Judge Bazelon considers open by suggesting that the Commission ought to spell out3 the relationship between homosexual conduct and suitability for federal employment. In view of the actions of the Congress and the Executive I do not consider this question open.
The Commission implemented 5 U.S.C. § 631, supra, with a regulation, 5 C.F.R. § 2.106 at times here relevant,4 which provides inter alia that an eligible applicant may be denied employment because of immoral conduct. I assume no one would be so brash as to argue that this regulation is not authorized by the statute. See Dew v. Halaby, 115 U.S.App.D. C. 171, 317 F.2d 582 (1963), cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 550 (1964). Congress expressed a determination, which would seem to be reasonable, that the character and habits of an individual may have as much to do with his suitability for federal employment as his knowledge and ability.
Wisely or not Congress, in common with a host of other law making bodies, has defined as criminal the homosexual conduct stipulated to by Appellant in his final appeal at the Commission. Whether it is sound legislative policy to attempt to deal with sex deviates under the criminal law is not open to judges but one can hardly doubt that such conduct is regarded as immoral under contemporaneous standards of our society. This court is in no position, then, to overturn, or even *190to question, an Executive determination authorized by Congress that homosexual conduct warrants a disqualification from federal employment. In all events it was no abuse of discretion to reject Appellant’s application for the sensitive position of personnel officer, a station requiring a balanced approach to human relationships and a position of great power in the selection and assignment of other federal employees. Congress of course could, as a matter of legislative policy, provide for example that sex deviates, chronic alcoholics, former felons and various other categories suffering infirmities would be eligible for federal employment in non-sensitive areas. But it is not our role to embark on such policy ventures.
In Dew v. Halaby, supra, which is controlling on the substantive aspects of this case both for this court and the Commission, a federal employee was discharged for pre-employment homosexual conduct at a time when Commission regulations expressly provided that facts sufficient to disqualify an applicant for a position 'were likewise sufficient to justify discharge of an employee. We upheld Dew’s discharge, which was based upon the .same regulation involved in the present case. We noted that Dew did not contend that the homosexual conduct involved was not condemned by that regulation: “in fact, it is difficult to see how he could ask a court to hold that the agency erred in so considering it.’’ Id. at 175, 317 F. 2d at 586. (Footnote omitted.) We did not question that the regulation itself was valid.
As Dew v. Halaby recognizes, our inquiry into the merits of Appellant’s disqualification, once he had asked that his involvement in homosexual conduct be assumed, can seek only to discern whether the Commission’s action was rationally based or whether, on the other hand, its action was arbitrary and capricious. Id. at 178, 317 F.2d at 589.5 And that case is authority that homosexual conduct is not an irrational ground for disqualification.
Since precedent, contemporary standards, and common sense require rejection of Appellant’s substantive argument, and since he can point to no statute or regulation granting him more process than he received, I would affirm the summary judgment for Appellees.
. In addition to the requirement the court now imposes on the Commission to make known the specifics of alleged disqualifying conduct, Judge Bazelon would impose a further obligation on the Commission to spell out the relationship between any such conduct and suitability for public employment. I have always thought this exclusively a policy issue for the political branches to resolve. Apart from the question whether the Constitution compels such a procedure, I see no function for it. If information concerning certain conduct may legitimately be considered by the Commission, then no such statement is needed; if, on the other hand, certain information may not properly be considered in a case, then no such statement can validate its use.
. Exee.Order No. 10987, 27 Eed.Reg. 550. The Commission has provided that employees shall receive “at least 30 full days’ advance written notice stating any and all reasons, specifically and in detail, for the proposed action.” 5 C.E.R. § 752.202(a) (1964).
If the employee answers, the agency shall consider the answer in reaching its decision. The employee is entitled to answer personally, or in writing, or both * * *. The right to answer personally includes the right to answer orally in person by being given a reasonable opportunity to make any representation which the employee believes might sway the final decision on his case, but does not include the right to a trial or formal hearing with examination of witnesses.
5 C.F.R. § 752.202(b) (1964).
. This suggestion emanates only from one member of the court and is not therefore a mandate of the court.
. The current citation is 5 C.E.R. § 731.-201(b) (1964).
. Moreover, a complaint which merely makes a conclusory allegation of administrative arbitrariness or caprice does not state a claim upon which relief may be granted. “Substantiating allegations” must be made. Hunter v. McLaughlin, 102 U.S.App.D.C. 293, 294, 252 F.2d 857, 858 (1958).