C. Unsuitability of Administrative Review to Constitutional Questions
The Court also rejects the notion, implicit in defendants' analysis, that the administrative affirmance of a lower agency's decision can serve to shield from judicial review arguably unconstitutional discrimination within that lower agency -- no matter how extensive the evidence of that discrimination may be. Defendants have offered absolutely no authority to support such proposed immunity, and indeed, defendants' posture is inconsistent with the appropriate disposition of constitutional challenges to administrative actions.
While considerable deference is accorded to administrative determinations relating to security clearances, Department of the Navy v. Egan, 484 U.S. 518, 98 L. Ed. 2d 918, 108 S. Ct. 818 (1988), it is also true that "constitutional questions are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions." Califano v. Sanders, 430 U.S. 99, 109, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977) (emphasis added). Thus, even assuming benign motivations for Rubino's affirmance of the FBI's revocation of plaintiff's security clearance, Rubino is not entrusted as an arbiter of the constitutional adequacy of an administrative action.
As such, his decisions obviously cannot bind the judiciary to his findings even if he purported to undertake such an adjudication. This Court has the authority and the obligation under the United States Constitution to consider colorable claims under the Equal Protection Clause. Plaintiff has stated such a claim and has presented sufficient evidence creating an issue of fact as to whether the FBI fired him because he is gay.
The propriety of according complete deference to the parent agency's administrative appellate process of a lower agency's decision is especially questionable where the parent and lower agencies each have historically distinct operational cultures. See generally K. O'Reilly and J. Mayhook, Civil Rights and the FBI, 16 Hum. Rts. 32 (1989). In that regard, the Court finds Rubino's testimony as to his own or the Department of Justice's tolerance of gay employees to be of limited value where plaintiff's lawsuit is challenging the allegedly pervasive discrimination against gays in the FBI.10 Surely, the absence of discriminatory practices in the Justice Department outside the FBI cannot serve to shield actual unconstitutional discrimination within the FBI. In fact, there is nothing to indicate that other courts have accorded much, if any, weight to the absence of discriminatory practices in the Justice Department generally when reviewing discrimination claims against the FBI. See, e.g., Perez v. FBI, 707 F. Supp. 891, 903, 916-17 (W.D. Tex. 1989) (Title VII class action against the FBI in which the district court placed "little confidence in the 'objectivity'" of the Equal Employment Opportunity officer's finding that the FBI did not systematically discriminate against Hispanics).
D. "Lack of Candor" and "Uncooperativeness" in the Wake of Employer's Own Discriminatory Practices
Entirely aside from the foregoing, this Court also finds problematic the very argument for which Rubino's declaration is offered to support -- namely, that the inference of unconstitutional discrimination is inapposite on a motion for summary judgment upon a showing that plaintiff was "deceptive" or "uncooperative." In its Order denying summary judgment as to plaintiff's equal protection claim, this Court noted that there is a viable question as to whether plaintiff's "lack of candor" and "uncooperativeness" would ever have been an issue but for the FBI's alleged anti-gay practices. Defendants' motion for reconsideration and Rubino's declaration are both silent as to this salient issue. This silence is of no small consequence, as the interplay between the FBI's practices toward "admitted homosexuals" and the assertion that plaintiff's security risk was revoked because he was "less than candid" regarding his homosexuality is necessarily significant to the factual question of whether plaintiff was fired because of his sexual orientation.
It is in this respect that the handful of other reported federal cases considering equal protection claims by gay persons are of somewhat limited assistance in reviewing the constitutionality of defendants' conduct in this action. If the facts are proven to be as plaintiff alleges they are, this case would appear to be the first instance in which a federal court would have occasion to consider the constitutional sufficiency of a government agency's citing a gay employee's lack of candor regarding his homosexuality as the explanation for his termination. Similarly, this would be the first instance for a court to examine an accusation by an employee that he reasonably perceived being candid regarding his homosexuality as being a surefire ticket to dismissal.
By denying defendants' motion for summary judgment, and denying this motion for reconsideration, this Court is simply acknowledging that the equal protection Clause of the United States Constitution is at least implicated where a government agency allegedly turns a certain class of its own employees into security risks by its own policies, and then cites that "security risk" as the basis for the termination of a member of the affected class.
Defendants' motion for summary judgment as to plaintiff's equal protection claim was properly denied. Defendants have failed to adduce any arguments which warrant reconsideration of that decision. Accordingly,
IT IS HEREBY ORDERED THAT defendants' motion for reconsideration is DENIED.
IT IS SO ORDERED.
DATED: July 31, 1992
SAUNDRA BROWN ARMSTRONG
United States District Judge