(dissenting):
For the second time, this Court takes an action which evades the central — indeed the only — issues in this case.
*650Those issues are first, must the Civil Service Commission approve an applicant who refuses to answer questions concerning a record of arrests and reliable reports of grave personal misconduct; second, whether this Court has the power to change a government employment policy which makes admitted or proven homosexual conduct a valid basis for refusing employment to an applicant for a government position; third, has the Government given reasonable notice to Appellant of the basis for rejecting his employment application.
More than two years ago a divided Court reversed and remanded this case to the Civil Service Commission for reconsideration, but without any guidelines except what could be gleaned from two separate and inconsistent opinions by Judges Bazelon and McGowan.
I dissented then because I was satisfied that Judge Bazelon's suggestion of a “vague finding” by the Commission1 and Judge McGowan’s suggestion of inadequacies of the notice given to Appellant were totally lacking in record support. This, of course, is markedly dissimilar from the point Judge McGowan now purports to rely on, i. e., that the Commission by its actions has in some way concealed the true basis for its decision. Both of my colleagues, then as now, ignored the hard fact that every stage of the proceedings — including the first appeal in this Court — was deliberately cast by Appellant in terms of asking that the decision be made on the assumption that he had in fact engaged in homosexual conduct. How can it be said in the face of this that there was or is anything vague, uncertain or ambiguous about what was being litigated ?
The facts, undisputed on this record, although covered in the earlier opinions, bear restatement as to the salient points:
1. The record before the Commission disclosed that
(a) a 1947 arrest for “loitering” was shown in context to be the customary police euphemism for an arrest relating to homosexual conduct and Appellant does not seriously challenge this;
(b) a 1951 arrest was shown against the same general background;
(c) Appellant’s answer to the question of whether he was a homosexual was that he did “not believe the question is pertinent in so far as job performance is concerned”;
(d) the Civil Service Board of Appeals and Review responded to Appellant’s demand for details “of how, when and where” his immoral conduct had occurred by a finding— which surely gave him notice — that “the records disclosed convincing evidence * * * [of] homosexual conduct. * * * ” Appellant refused to comment on the report which the Commission made available to him. Appellant’s demand was, of course, hardly consistent with his position that the inquiry was not pertinent to his job qualifications ;2
(e) after remand, the Commission specified that it relied on the two arrests, the statement of a former employer that Appellant had told him he was perverted and lived with another male as his “lover” and Appellant’s failure to respond to *651questions relating to these arrests and reports;
(f) at critical stages in the course of this prolonged litigation Appellant has insisted that his claims be decided on the assumption that he is a homosexual; he argues that the word “perverted” had no meaning to him, that he had always sought “to be true to my real self * * * —not to pervert myself into something I am not” and that whether or not he was a homosexual was irrelevant to his federal employment.
2. If there was any doubt that Appellant made his election to stand on his claim that his private conduct was irrelevant to eligibility for employment, it was dispelled when, on his appeal, he requested the Board of Appeals 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, Warded 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.)
By every rule and standard of orderly procedure, the Civil Service Commission and this Court had a right — probably a duty — to take Appellant at his word and decide the issue on the terms he postulated. In the face of this explicit challenge of Appellant, I find it extraordinarily difficult to understand how Judges Bazelon and McGowan can expect to be taken seriously when they suggest — both in the prior opinions and here — that Appellant had inadequate notice of “the standards by which his revelations will be assessed.” What more notice does Appellant need when he has postulated the issue on which the decision is to turn and loftily informs the Government that the subject matter, on which notice my colleagues would say is lacking, is irrelevant? Justice Frankfurter once observed that “Litigation is the pursuit of practical ends, not a game of chess.”
The majority rests its case largely on the Commission’s letter which is reproduced in pertinent part in its note 2. From this letter the majority finds an ambiguity as to the grounds of disqualification. But this letter must be read along with all the evidence including Appellant’s concession of homosexual conduct. In light of that letter the majority position that Appellant was left in doubt as to why he was rejected is beyond my comprehension. No one on either side of this case and surely no one on this Court can really have any doubt why Appellant has been denied government employment, i. e., his refusal to discuss highly relevant aspects of his fitness against the background of unchallenged reports as to prior conduct.
The majority also rests on the proposition that Appellant was not apprised of the reason for which he was discharged. But the letter sent to Appellant by the Commission stated not one, but several reasons for disqualification. As we have just noted one of the reasons was the failure to respond to the questions concerning personal conduct. Since none of the underlying facts were denied by Appellant and so long as one of the stated reasons is valid the Commission must be upheld if we follow the law.3 5 C.F.R. § 731.201(b) & (d) (1968); see 5 C.F.R. § 5.3 (1968). While disavowing an intent “to foreclose reasonable inquiries by” the Commission, the conclusion of the majority denies the Government’s right to secure answers from Appellant. The Supreme Court, however, has repeatedly affirmed the power of the Government to refuse employment to persons who refuse to answer questions relevant to fitness or suitability for public service. *652E. g., Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494 (1960) ; Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Garner v. Board of Public Works of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1950).
I suggest that Judges Bazelon and McGowan misconceive and blur the real issues in this case. It is not a question of whether homosexual conduct should be considered criminal conduct but whether it is within the discretion of the Executive and the Legislature to have an employment policy that reliable reports of homosexual conduct as to an applicant for employment permit the Commission to require the applicant to respond to further questions. Is it arbitrary, capricious or irrational for the Commission to ask such questions or to deny eligibility to an applicant for federal employment when the applicant refuses to answer and demands that his status be resolved on the assumption that he engaged in homosexual conduct?
In my view it is not for judges to determine whether the Civil Service Commission policy is a wise or sound policy when that policy is authorized by Congress and not forbidden by the Constitution. Under the guidelines of Cafeteria and Restaurant Workers Union, Local 473, A. F. L.-C. I. O. Workers v. McElroy, 367 U.S. 886, 898, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) , the Commission’s action must be affirmed unless it is “patently arbitrary or discriminatory.” The majority fails to meet this basic issue in the case — indeed it is not even discussed.
Congress has authorized the President to prescribe such regulations for the employment of persons in the Civil Service as may best promote the efficiency of the service. It commands investigations into “age, health, character, knowledge and ability. * * *” Under this authority, one may be disqualified for infirmities of eyesight, hearing, general health, education and experience. That some human infirmities are beyond the control of the applicant may be unfortunate but it does not undermine the power of the Executive to hire only those whose employment will “best promote the efficiency” of the public service. Do my colleagues now decide sub silentio that the government must employ sex deviates or that the efficiency of public service is promoted by doing so ?4 Or do they decide that questions may not be asked by the Commission if investigation reveals arrests or association with known criminals or convictions which the applicant did not reveal?
The opinion of the majority reveals by its own terms that it is usurping powers of the policy-making branches of government when it tells the Commission, apparently by way of consolation, that with respect to sex deviates it, the Commission,
is functioning in a field where public policy is in something of a state of flux, with old certainties dissolving and new ones unformed. We [the majority] are not disposed to compound its problems unnecessarily nor to foreclose reasonable inquiries by it, but we do note the importance and relevance of a clear policy line to the demarcation of appropriate disclosure requirements.
I am not sure I grasp the meaning of this; I would speculate that it can be read as meaning that the Court now takes over from the Executive the power to formulate “public policy” on employment of sex deviates because that “policy is in something of a state of flux. * * * ” It would seem to me that if adjustment is needed to changing mores that is indeed a matter of highly sensitive policy. But from whence comes our mandate to make or even suggest policy on this score or our mandate to denounce the policy of the constitutionally authorized branch?
Congress and the Executive make policies in various areas which many reasonable people consider unsound. But policy is not the business of judges.
I am even more puzzled by the majority’s disposition of the appeal: is the *653Commission now compelled to certify Scott as eligible to be a personnel officer? Is the Commission to give new notice and new hearing? What is the solution if the Commission flatly refuses to employ him ? 5
. It is worth noting that the majority opinion does not place any reliance on Judge Bazelon’s position in the prior opinions that there was insufficient evidence of homosexual conduct. In light of Appellant’s litigation position that argument remains as unsupportable now as it was then.
. Appellant as an applicant is not like a litigant entitled to assert inconsistent defenses. However, viewed as a litigant, he is at once demurring to a “complaint” and demanding a bill of particulars.
. Cf., Gibson v. United States, U.S.App.D.C. -, 403 F.2d 569, decided August 30, 1968; Western States Reg. Council No. 3, Int. Woodworkers v. N. L. R. B., D.C.Cir., 398 F.2d 770, decided June 19, 1968.
. Contra, note 5 infra.
. After these opinions were prepared, the Fifth Circuit decided Anonymous v. Macy, 398 F.2d 317, (5th Cir. July 11, 1968), holding that a Post Office employee’s homosexual acts, even though private, provided a valid basis for his discharge.