Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality

An Assistant United States Attorney (AUSA), a federal employee in the “excepted” service, may not be terminated solely on the basis of his homosexuality, in the absence of a reasonable showing that his homosexuality has adversely affected his job performance.

The burden would be on the Department of Justice to demonstrate a nexus between the AUSA’s homosexuality and an adverse effect on his job performance. In this case, it is doubtful whether the Department could meet its burden, because the AUSA has consistently received superior ratings and has been granted a security clearance. Although it may be argued that a prosecutor who violates a state criminal law prohibiting homosexual acts demonstrates a disrespect for the law inconsistent with the Department’s standard of prosecutorial conduct, the Department would have difficulty establishing the required nexus as a matter of law, because the state law is only enforced against public conduct.