dissenting:
First, as to jurisdiction: I would hold that we have jurisdiction under 28 U.S.C. § 1491. I deem it a semantic mistake to call the collective bargaining agreement under which plaintiff sues a regulation. Not every piece of paper emanating from an executive department is a regulation. Donovan v. United States, 433 F. 2d 522 (D. C. Cir. 1970), cert. denied, 401 U.S. 944 (1971).
Second, I find it impossible to reconcile the lip-service given to the doctrine the court will not grant discretionary promotions with the language near the end of the opinion which defendant’s officials will read as now confining them to an election between steps 46 and 47. If the management committee abused its discretion in arbitrarily excluding *333plaintiff from consideration for these higher steps, I find nothing in the record to show it did not have discretion to award him a lower one. The court apparently is weighing the evidence and substituting its judgment for that of the Acting Maritime Administrator on disputed facts.
Third, I turn now to the alleged ex parte approaches. I dissented in Camero v. United States, 179 Ct. Cl. 520, 375 F. 2d 777 (1967), but would deem it a binding precedent here if the facts were the same, but they are not. In Camero, we had an adverse action, taking away a man’s job, conceived of as his property, a situation in which due process requirements are more stringent than they are when, as here, the procedures are employed to decide whether the claimant is to receive a benefit. Richardson v. Perales, 402 U.S. 389 (1971). Moreover this court viewed the Grievance Committee procedure in Camero as adversary in nature, an alleged fact on which it laid great stress. The hearing examiner in the deliberations now before us was expressly told not to allow his inquiry to become an adversary one. The imposition of due process requirements on a mere inquest is implicit in the decision here and in Comero was not. Apparently any executive who wishes to have his decision aided by testimony will endanger the legality of his action unless he develops the entire panoply of a due process hearing.
I assume that no one is entitled under the Constitution to procedural due process in the determination whether he is to get a pay increase. The issue then boils down to the intentions of those who framed the grievance procedure plaintiff invoked, and wrote the regulations under which his hearing was held. Following our rule for contracts (Hegeman-Harris Co. v. United States, 194 Ct. Cl. 574, 440 F. 2d 1009 (1971)), I would construe the regulations as they would naturally be construed by the bureaucrats for whose guidance they were written. The court’s interpretation would bar the deciding officer from receiving the advice of his own staff. He is so used to the staff system of decision-making that, cut off from their aid, he would feel helpless. Such an unnatural barrier, in a bureaucracy, would require an express declaration to be understood at all, and the regulation here of course expressly *334said no such thing. The bureaucrat would not, I think, see fundamental unfairness in ex parte approaches if they were allowed to both sides. He would know there was no feasible way to prevent aggrieved employees from procuring ex parte approaches, particularly by members of Congress, who would have no way of knowing whether under the internal procedures of the agency ex parte approaches were proper or not. They would expect that whatever they had to communicate would receive such consideration and weight as was proper to give it and no more. To allow ex parte communications to the aggrieved employee, but to deny them to management, would not impress the bureaucractic decision-maker as fair or equitable. It would be an interesting exercise to attempt to draft a regulation prohibiting ex parte communications, such as would be fair to both sides, yet feasible to publish and administer. At any rate, we know that Mr. Kostos in Camero, and Mr. Gulick here (the Acting Maxine Administrator) , both able lawyers, 'apparently read the regulation as I do and did - not, therefore, see anything wrong in the decision maker’s receiving assistance outside the hearing from his own staff, whether they had participated in the hearing or not.
I want to be fair with the court majority and therefore will add that certain experiences with this type of grievance procedure, before I went on the bench, cause me to believe that its inventors intended — though they didn’t write — that the decision maker would isolate himself as the court says he must. I was such a one, and but for good advice by an astute personnel officer, probably I would have put myself right there in this court’s doghouse, with Mr. Eostos and Mr. Gulick. I will admit I was only commencing my present acquaintance with -the Byzantine mysteries of government personnel procedure, and was not as familiar with them as this court was and is. This procedure is nothing but a trap for the many who are insufficiently instructed.
I probably would go along with a simple suspension for further administrative proceedings but I cannot join in restricting the agency to steps 46 and 47, nor in the court’s animadversions on Mr. Gulick’s alleged wrongdoing.