dissenting:
I regret that I am unable to join Judge Wright’s scholarly and extremely well-researched opinion in this case. Given the limited precedential value of the decision rendered by the court today,1 however, I will confine my remarks to brief and general observations on what I feel are the most significant errors in the analysis presented by the majority.
When one casts aside the indisputable observations made by the majority regard*387ing the federal government’s avowed role as an equal opportunity employer, one realizes that Judge Wright’s opinion reaches an almost extraordinary result: the court holds, in effect, that aspects of a program designed to assist handicapped individuals in securing federal employment in fact violate an Act of Congress that mandates that agencies establish affirmative action programs. The achievement of this, shall I say, interesting conclusion was made possible by nothing less than a nimble judicial sleight-of-hand, and I would like briefly to set forth the basic elements of this achievement.
The majority opinion conveys, I believe, several erroneous impressions regarding both the federal hiring programs that obtained at the time Mr. Shirey was hired in 1973 and the options that he had available at that time in pursuit of federal employment. In 1973 — as in 1981 — positions under the federal civil service fell for application purposes under one of two broad categories, “competitive service” and “excepted service.” Most employees in federal service, including most handicapped employees, held in 1973 and hold today positions in the competitive service. Employees who occupy such positions have generally been hired, as might be expected, through a competitive selection process. See 5 U.S.C. § 3304 (1976 & Supp. III 1979). By contrast, excepted service employees have not gained their positions through any formal competitive process open to all comers; rather, either because special considerations regarding the position render competitive scrutiny inapplicable, or because certain characteristics of individual applicants are thought as a matter of policy to merit exempting them from the competitive process, a number of positions and individuals have been placed outside the formal competitive regime.2
As the majority notes,3 individuals suffering from severe physical or mental disabilities were and are among those who could be offered federal positions for which they were qualified without participation in the competitive process.4 Mr. Shirey was, in light of his deafness, hired for a position in NASA as a Computer Systems Analyst as an excepted service employee. It is clear that Mr. Shirey met the requirements of the position at the time he was hired,5 and *388that fact is evinced by his competent performance for over four years in that job. It is also manifest, however, that Mr. Shirey could have sought appointment to his NASA position through the competitive service process; indeed, his own amended complaint in this case expressly acknowledges that “handicapped persons are also hired through the regular ‘competitive service’ procedures. . . . ”6 Mr. Shirey was, it should be emphasized, quite correct in this regard. The district court found that “the excepted service program serves as a supplement to NASA’s hiring programs. Defendant NASA employs over 24,000 people and over 1,500 of those are handicapped competitive service personnel.” Shirey v. Campbell, No. 78-2177 (D.D.C. August 29, 1980), Memorandum Opinion at 3; Appellants’ Appendix (A.A.) at 8a (emphasis added).
In sum, in spite of the message implied in the majority’s statement that the excepted service appointment authority for the handicapped is “used only for those individuals who are qualified . . . but whose disabilities would prevent accurate assessment of their skills by normal competitive appointment processes,”7 it is clear that many deaf applicants have successfully run the gauntlet of those processes. Mr. Shirey could have chosen to run that gauntlet as well,8 just as he could earlier have attempted to convert to the competitive service.9 I certainly do not mean to criticize Mr. Shirey for the route he took toward federal employment; I do, however, take issue with the majority’s statement that Mr. Shirey’s decision to proceed by the excepted service path as opposed to the competitive one was anything other than voluntary.10
With this background, it is possible to discern the questions that this case does pose, and, equally importantly, to recognize those issues that are not before the court. It is clear to me that this case does not involve discrimination against handicapped employees because they are handicapped; rather, it concerns “discrimination” against all federal employees who entered the federal service through the noncompetitive, ex-cépted procedure. Precisely as the majority opinion notes, “Mr. Shirey had completely different — and inferior — job protection rights, because he had been ‘excepted’ from the competitive appointment process.”11 As the majority thus concedes, Mr. Shirey was not required to “compete” with other qualified applicants for the position he received; rather, he was the direct beneficiary of a program designed to assist handicapped individuals in the pursuit of federal jobs. This very program, as the majority notes, permitted Mr. Shirey to “bypass the competitive appointment system.”12
*389When the facts are examined in this context, the incongruity of this litigation is apparent. Mr. Shirey was awarded his position under a program that, by any measure, was the product of enlightened discrimination in his favor. To be sure, Mr. Shirey was qualified for the position he received, but so too were many who sought the same job or similar ones through the competitive examination processes and yet who were not hired because they failed to earn the highest grades in the competition. Any number of these individuals were more qualified in every respect than Mr. Shirey, yet he received the position; had Mr. Shirey been fairly tested by competitive means, it is not at all clear that he would have been hired by NASA. Where the excepted service provision relevant in this case operates, let us remember, a position need not be awarded to the individual most qualified, as in the competitive service system — it need only be awarded to someone physically handicapped and “likely to succeed in the performance of the duties.” 5 C.F.R. § 213.3102(u) (1981); see note 5, supra. The district judge whose decision the court today reverses noted that the excepted service process thus “offers an acceptable supplement to the job opportunities currently available to handicapped persons through the competitive service.”13
I thus find myself in complete agreement with the position taken by the district court and urged by the government appellees in this case. Mr. Shirey was indeed a member of a class that possessed inferior job security rights; the cause of the discrimination of which he complains, however, was not the fact of his handicapped status but rather was his status as an excepted service employee. When faced with a reduction in force, federal administrators face a task of great difficulty in determining which employees to retain and which employees to release. Some employees must go. In the case at the bar, the Civil Service Commission determined that employees who entered federal service through the competitive process should be awarded superior job retention rights than those accorded excepted service employees. There is absolutely no doubt that this distinction, however one may disagree with it as a matter of policy, is a rational and reasonable one. As the appellees in this case note, it is entirely reasonable for federal agencies to encourage participation in the competitive appointment process by according greater benefits to competitive service employees. See Brief for Appellees at 19-21. The morale and resentment problems that might be posed by the perception among competitive service employees that excepted employees are treated indistinguishably from “regular” ones also provide valid bases for the discrimination of which Mr. Shirey complains.
Yet this case is not, of course, an equal protection challenge, and hence, considerations of rationality are not strictly relevant. What is most interesting — and most disturbing — to me about the majority’s decision today is clear when we consider the issue this case does pose. The question raised in this litigation involves the scope of an Act of Congress mandating affirmative action. The court today employs a statute that requires that federal agencies establish affirmative action plans to rule that the treatment of Mr. Shirey — and by implication his “class” — violates federal law. Section 501 of the Rehabilitation Act of 1973 requires that agencies develop affirmative action strategies for the hiring, placement, and advancement of handicapped individuals. I agree with Judge Wright that this mandate implicitly proscribes employment discrimination against handicapped persons. Majority opinion at 1200-1201. Yet, as I have argued above and as the district court held, we do not before us have a case in which an individual has been discriminated against because he is handicapped. There is simply no link demonstrated by either Mr. Shirey or by the majority between Mr. Shirey’s deafness and his inferior job retention rights; he had those inferior rights *390because he was an excepted service employee, not because he was deaf.
At the heart of this dissent, then, is the belief that this court, in the guise of defining the “substantive scope” of section 501,14 dons a legislative mantle to modify a program it apparently feels does not go far enough in affirmatively ameliorating the disadvantages of deafness. I simply do not believe that section 501 requires, however, that federal agencies guarantee the full benefits of competitive service status to those handicapped individuals who enter federal employment through the excepted service program. It is manifest that section 501 provides agencies with considerable discretion in formulating an affirmative action strategy. The district judge observed that that provision does not require that all such affirmative action plans “fall within the competitive service,”15 and I agree completely with that conclusion.
That the federal government in 1979 changed its policy and currently permits handicapped excepted service employees to convert to competitive status is irrelevant in the current context, save that it renders today’s decision a narrow one. Yet if we forget for the purposes of this litigation that change of policy — and again, it is absolutely irrelevant to the resolution of the issues of statutory construction posed by this case — we can discern the full impact of the court’s reasoning. Put most simply, the majority’s application of section 501 has the effect of mandating that all handicapped excepted service employees be at some point accorded the benefits of competitive service status. Nothing in the language of that section or in the legislative history grounds this intrusion upon the discretion Congress has accorded agency administrators; indeed, the court’s conclusion today is at the very most a teleological product of the Rehabilitation Act.
As the court rightly notes, the core of affirmative action is fair treatment, and I harbor absolutely no doubt that the government program Mr. Shirey challenges in this litigation treated him fairly. I suggested above that Mr. Shirey could have sought his position through the competitive processes and, save for the glib and simple conclusion in the majority opinion that his acceptance of an excepted service appointment was not a voluntary choice,16 there is no evidence indicating the contrary. If, however, Mr. Shirey believes that the competitive exami*391nation scheme was or is unfair to deaf applicants, then let him challenge forthrightly that scheme. As I view the matter, such a challenge would be far more consonant with the judicial role than is asking a court to gauge whether an affirmative action program goes sufficiently far in correcting the disadvantages of a physical handicap.
As a matter of policy, the court’s decision today may well be a correct one. Once a handicapped person has secured a government job through the excepted service, at some point after he has performed acceptably in the post he should be given the same perquisites and entitlements that a competitive service employee receives. The federal government has now reached this conclusion, and I commend the concerned officials for their decision. That a decision is correct in a policy sense, however, does not mean that it is the proper one for a court to reach. Federal courts simply do not exist to right the wrongs of Congress and agencies as ad hoc purveyors of justice, however better the nation would be served were that the case. This is the ease even when the challenge at issue is garbed in the attractive sartorial splendor of “affirmative action.”
I would affirm the decision of the district court, and I therefore dissent.
. One aspect of the majority opinion with which I wholeheartedly agree is its self-confessed “narrow” precedential effect. See majority opinion (maj. op.) at 1200, 1205.
.Section 2103 of title 5 of the United States Code defines the “excepted service” as those civil service positions that are “not in the competitive service or the Senior Executive Service.” 5 U.S.C. § 2103(a) (Supp. III 1979). The President has been given the authority to except positions from the competitive service, 5 U.S.C. § 3302(1) (1976), and Congress has excepted certain positions from the competitive service by statute. This authority has in turn been delegated to the Office of Personnel Management, the successor of the Civil Service Commission. Executive Order No. 10577, Rule VI, 3 C.F.R. 222 (1954-58 Comp.), reprinted as amended, 5 U.S.C. § 3301 app. at 375 (1976), and 5 U.S.C. § 3301 app. at 155 (Supp. III 1979).
The Commission over the years has created a large number of excepted service positions, with the unifying characteristics of such appointment being either the impracticability of competitive processes or the confidential, policymaking nature of the positions at issue. See 5 C.F.R. §§ 213.3101, .3201, .3301 (1981). The excepted service includes, as might be expected, the senior policymaking officials of the federal government. See 5 C.F.R. §§ 213.3301 —.3399 (1981). It encompasses a variety of nonconfidential positions as well, including attorneys, interpreters, temporary scientific, researchers, White House Fellows, and physicians employed under contract. See generally 5 C.F.R. § 213.3102 (1981).
. Maj. op. at 1191-1193.
. The Civil Service Commission promulgated during the 1960’s two provisions permitting persons with severe mental or physical handicaps to obtain civil service appointments through the excepted service. The currently applicable regulations containing this authority are found as subsections (t) and (u) of 5 C.F.R. § 213.3102 (1981). Subsection (t) permits mentally retarded persons to be given positions outside the competitive process, while subsection (u) contains a similar authorization for persons afflicted by severe physical handicaps.
. Mr. Shirey was hired under the excepted service authority then provided by 5 C.F.R. § 213.-3102(u) (1973). At that time, subsection (u) provided:
Positions when filled by severely physically handicapped persons who: (1) Under a temporary appointment have demonstrated their ability to perform the duties satisfactorily; or *388(2) have been certified by counselors of State vocational rehabilitation agencies or the Veterans Administration as likely to succeed in the performance of the duties.
Id. Mr. Shirey was adjudged “technically, physically, and socially competent” — and presumably, therefore, “likely to succeed” — by officials of the National Technical Institute for the Deaf of the Rochester Institute of Technology. See Appellants’ Appendix (A.A.) at 35a-36a.
. See Plaintiffs’ First Amended Complaint at ¶ 13, Shirey v. Campbell, No. 78-2177 (D.D.C. Aug. 29, 1980).
. Maj. op. at 1202 (emphasis added).
. ' It should be noted that Mr. Shirey does not allege that the competitive procedures that obtained in 1973 or thereafter would have discriminated against him had he applied for a position in the competitive service. See generally Brief for Appellants at 3-9.
. Prior to the 1979 Executive Order that gave handicapped excepted service employees the opportunity to transfer to the competitive service as a matter of right, Executive Order No. 12125, 44 Fed.Reg. 16879 (1979), codified at 5 C.F.R. §§ 213.3102(t) — (u) (1981), handicapped excepted service employees could apply for a discretionary conversion to the competitive service. In October of 1977, Mr. Shirey, before the announcement of the reduction in force that led to the loss of his job, applied for such a conversion. Brief for Appellees at 7. His request was pending at -the time he was discharged. Id. at 7-8.
. See maj. op. at 1203; see also note 16, infra.
. Maj. op. at 1189-1190 (emphasis added).
. Id. at 10.
. Shirey v. Campbell, No. 78-2177 (D.D.C. Aug. 29, 1980), Memorandum Opinion at 8-9; A.A. at 13a-14a.
. See maj. op. at 1190.
. Shirey v. Campbell, Memorandum Opinion at 6; A.A. at 11a.
. In a phrase I find peculiar in its conclusory nature on a matter of some significance in this case, the majority opines that Mr. Shirey’s decision to accept an excepted service appointment as opposed to pursuing a position in the competitive service was not a voluntary one. This observation bears repetition in its entirety: “Nor was [Mr. Shirey’s appointment] a ‘voluntary’ choice, as the District Court seems to have thought, except to the extent that the desire to be treated fairly is also voluntary.” Maj. op. at 1203 (footnote omitted). Quite apart from the difficulty I have in deducing the meaning of this elliptical statement, the implication that Mr. Shirey’s decision was “involuntary” is entirely unsupported in the record. The majority simply concludes, without a whit of supporting evidence, that the district court’s conclusion on this matter was in error.
I noted at the outset that this case involves a sleight-of-hand. This is apparent, I believe, when one examines the critical pages of the court’s analysis, pp. 1202-1203. The majority’s rhetoric there effectively transforms this case from a challenge to disparate treatment into a challenge to the competitive testing procedures that obtained at the time Mr. Shirey was given his position. The court suggests, for example, that these procedures discriminated against the deaf, maj. op. at 1202, and then bootstraps that “past discrimination” into affirmative relief for Mr. Shirey. As I noted earlier, however, this case is not one in which the competitive testing system has been challenged as discriminatory, and the majority’s observations on that score, with respect, simply obscure the issues that we must resolve. Mr. Shirey has not alleged that the tests discriminated against him; nor has he contended that his appointment was involuntary in the sense that his deafness impermissibly disadvantaged him in the competitive system. Rather, as Mr. Shirey himself notes, the question presented in this appeal is whether the government’s policy of denying equal job retention rights to handicapped excepted service employees violates the nondiscrimination mandate of section 501. See Supplemental Brief for Appellants at 1. Simply put, we are concerned in this case with the disparate treatment of excepted service employees, and not with the equities of the competitive testing process.