dissenting:
I respectfully dissent. This court does not have jurisdiction of this case. An analysis of the majority opinion reveals that it has awarded a judgment to the plaintiff on a claim for which no relief can be granted. The court has taken jurisdiction of a claim in which the government is immune from suit as a sovereign and where the Congress has not waived such immunity by giving its consent to be sued. It has rendered an opinion that amounts to a declaratory judgment that the plaintiff is entitled to recover money damages from the government in the sum of approximately $18,000, *218winch, is the equivalent of three years’ salary of a job which ghe never held and in which she never performed any services, notwithstanding the fact that no court having equity powers has ever appointed or installed her as an officer or employee of the government in such position and the lack of authority of this court to do so. Accordingly, the claim is not limited to actual, presently due damages from the United States. This court has no power to render a declaratory judgment.
The court has attempted to exercise equity powers by rendering an opinion which in effect appoints the plaintiff to a government job retroactively for a period of three years. This court has no such equity powers.
The appointment of the plaintiff to a government job retroactively for three years by the court when she was never appointed to the position by the HEW, is an unwarranted and unauthorized assumption and exercise of a discretionary function of an executive agency. The Supreme Court and all other courts, including this court, have always held that the hiring of employees and appointment of officers involves discretion on the part of an executive agency and is a function reserved exclusively to such agency and will not be interfered with by the courts.
There is no statute of Congress that creates a cause of action against the United States in favor of anyone such as the plaintiff for alleged racial discrimination, and the Congress has never agreed that the government can be sued where one has been denied a government job because of racial discrimination. The HEW regulations and the Presidential Executive Orders relied upon by the plaintiff are of no help to her for at least two reasons. In the first place, such regulations and executive orders do not give the plaintiff a cause of action against the government nor waive the sovereign immunity of the United States from suit in a claim such as that asserted here. In the next place, even if the regulations and executive orders did give the plaintiff a cause of action against the government and waived sovereign immunity against a suit based thereon, this would avail the plaintiff nothing, because no officer or agency of the government can waive the sovereign immunity of the United States against suit. *219This power is reserved exclusively in the Congress and must be exercised by it by statute which specifically and explicitly waives sovereign immunity. Such waiver cannot be established by implication. There is no specific waiver of immunity by Congress in this case.
The Tucker Act (28 U.S.C. § 1491 (1964)) does not help the plaintiff. As will be shown below, the Tucker Act, which defines the jurisdiction of this court, does not authorize this court or any other court to entertain jurisdiction of a claim based on a non-appointment of a government job because of alleged racial discrimination. The Tucker Act specifically provides that this court does not have jurisdiction of cases sounding hi tort, except by consent of the parties. When all the facts are considered in this case, if the plaintiff has any kind of claim at all, it is one sounding in tort. Reduced to its simplest terms, plaintiff complains of an alleged wrongful act of an HEW official, in the exercise of his discretion, whether or not abused, within the scope of his authority and in the discharge of his official duties, in denying her appointment to a government job because of alleged racial discrimination. This is a tort action by statutory definition (28 U.S.C. § 2680(a) (1964), 62 Stat. 984 and amendments), but is one that is barred by sovereign immunity and one that cannot be maintained even in a district court which has general jurisdiction over tort cases.
Finally, in these introductory remarks, I reach the merits of the case, which this court should be vitally interested in from the standpoint of justice and fair dealing. The facts show beyond any question and by clear and convincing evidence and “well nigh irrefragable proof,” that there was no racial discrimination in the denial of a government job to the plaintiff in this case. The facts show this, and the trial examiner and the special investigator both so held. The decision of the HEW and the Board of Appeals and Review to the contrary is arbitrary, capricious, and not supported by substantial evidence, and, in fact, not supported by any evidence at all. All the evidence is the other way. The decision of these agencies amounts to nothing more than conclusions of law, not supported by any evidence, and by which this court is not bound.
*220In view of the foregoing, it is apparent that the court is enlarging its jurisdiction by judicial legislation without authority from Congress. Its judgment in favor of the plaintiff is contrary to the law and the facts and is a complete windfall for her. By its judgment, the court, without Congressional authority, sets itself up as an all-powerful tribunal to police the discretionary acts and functions of executive agencies. In addition, the court is establishing a procedure and system that will be impossible to administer and enforce. The court’s judgment will open the floodgates of litigation to the tens of thousands of applicants for government jobs each year who have been denied employment and who will, without doubt, based on the majority opinion, sue the United States on the grounds of discrimination as to race, creed, color, country of origin, religion, age, and sex. I cannot agree to this kind of a judicial decision. The foregoing will foe considered in detail with supporting authorities in the following paragraphs.
I
The Court Does Not Home Jurisdiction of This Case
There are many reasons why this court does not have jurisdiction of this case. The majority refers to the plaintiff’s suit as one for “back pay.” This is a misnomer, as no one is entitled to back pay who has never been appointed to the office and who has not performed any services. The salary of a government position is incident to the job and can only be paid to the person who is appointed to and holds the job and performs its services. Consequently, plaintiff’s suit, reduced to its basic terms, is simply a claim for damages, not yet due nor established by any court having equity powers, for the alleged wrongful act of an officer of the HEW in denying her employment because of alleged racial discrimination. As will be shown later, this court has no jurisdiction of a case of this kind.
1. The Plaintiff Has Not Alleged A Cause of Action For Which Belief Can he Granted.
The plaintiff’s case is a simple one and our decision thereon should have been equally simple. She has not alleged a cause *221of action upon which, relief can be granted, and her petition should have been dismissed without oral argument. We need look no further than the cases of Price v. United States, 65 Ct. Cl. 91 (1928), cert. denied, 277 U.S. 587, and Barea v. United States, 115 Ct. Cl. 44 (1949) for authority for such dismissal. These cases hold that a claim for the recovery of the salary of a government job that does not allege appointment to the job and performance of services therein, does not state a cause of action and must be dismissed. In the Price case, the plaintiff sued for the salary of a clerk of a committee of the House of Kepresentatives during a period when another person was appointed to the position instead of the plaintiff by the Clerk of the House. The court dismissed the case, saying:
We need not indulge citation of authorities to sustain a proposition that no right to recover the salary of an office prevails until the office is created, the salary fixed, appointment proved, and duties are performed. * * * (Emphasis supplied.] [Id. at 95-96.]
In Barea, the court quoted the above holding with approval in dismissing a suit by the plaintiff for the salary of an investigator for the U.S. Un-American Activities Committee who had performed services but had never been appointed to the job by an authorized person, saying:
* * * The allegations of plaintiff’s petition do not state a cause of action. [Id. at 46.]
These cases, which are not mentioned by the majority opinion, are unquestionably the law and are decisive against the plaintiff. But we do not have to stop here. The case of Hyman v. United States, 138 Ct. Cl. 836, 157 F. Supp. 164 (1957), is squarely against the plaintiff. That case is similar to the case before us, except for the allegations of racial discrimination here. There the plaintiff had “priority rights” to be appointed to a job which became available, but the agency did not hire her. She sued for the salary of the job retroactive to the date she claimed she should have been hired (the same as here). The court ruled against her, saying:
* * * A Government employee with reemployment priority rights is merely a “former” Government em*222ployee who has certain preference or priority rights which he may assert when a position becomes vacant for which he qualifies. * * *
* * * Because of her reemployment priority rights, plaintiff merely had a right to priority in securing a job in the Housing Administration. * * * [WJehnow of no authority on which might be based a decision that she is entitled to be paid for a job to which she was not appointed and from which she was not, of necessity, removed. [Emphasis supplied.]
Plaintiff’s motion for summary judgment is overruled and her petition is dismissed. Defendant’s motion for summary judgment is granted. [Id. at 842, 157 F. Supp. at 168.]
The majority, finding the Hyman case an obstacle to plaintiff’s recovery here, peremptorily overruled it without citing any authority for doing so. The court committed error in taking this action regarding a case that was not only sound and correct, but also had been the law for many years, especially with no reason given except the caprice of the court. The Price and Barea cases have not been overruled by the court and are controlling against the plaintiff. They announced the law in this field more than forty years ago.
The failure of the plaintiff to state a cause of action on which relief can be granted is so academic and obvious that, as this court said in the Price case, supra. “We need not indulge citation of authorities to sustain a proposition that no right to recover the salary of an office prevails until * * * appointment [is] proved, and duties are performed.” That is the situation in the case before us.
2. The Plaintiff Had No Gonstitutional, Inherent or Tested Bight to a Government Job, a/nd the Denial Thereof Did not Give Her a Cause of Action Against the United States.
The plaintiff has filed this suit for damages because of her non-appointment to a government job, apparently on the theory that she was denied a job to which she was entitled. She could not be more mistaken, because no person has a constitutional, inherent or vested right to a government job. Many cases have so held. Mr. Justice Holmes made an historic *223decision in this regard in McAuliffe v. New Bedford, 155 Mass. 216, 29 N.E. 517 (1892) when he said:
* * * The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a 'policeman. [Id. at 517.] [Emphasis supplied.]
Many cases have made similar rulings. In Jenson v. Olson, 353 F. 2d 825 (8th Cir. 1965), the court said:
* * * Plaintiff, however, has no right to public employment. * * * [Id. at 828.]
Again, at page 828, the court in that case said:
Thus, the Constitution protects the right of free speech but it does not guarantee plaintiff employment with the City of Minneapolis. * * *
In Bailey v. Richardson, 182 F. 2d 46 (D.C. Cir. 1950), aff'd 341 U.S. 918 (1951), the court said:
* * * The First Amendment guarantees free speech and assembly, but it does not guarantee Government employ. * * * [Id. at 59.]
* * * But there is no basic right to Government employ, any more than there is to employment by any other particular employer. * * * [Emphasis supplied.] [Id. at 60.]
* * * Government employ, with which we are here dealing, is not a right. * * * What is denied her [the plaintiff] is Government employ. The argument * * * therefore, must be that Miss Bailey has a right to Government employ unless her presence there would constitute a clear and present danger. There simply is no such right. * * * [Emphasis supplied.] [Id. at 61.]
The reason for these court decisions, and others like them, is better understood when we consider the nature of a government job.
Article 2, Section 2, of the Constitution provides in pertinent part:
* * * [T]he Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
*224No citation of authority is needed to show that the HEW job involved here was a position which the head of that department had been authorized to fill in accordance with the above provision of the Constitution. An appointment by him or by his authority was the only way the position could be filled. This is fundamental, as was stated by the Supreme Court in United States v. Smith, 124 U.S. 525 (1888):
* * * An officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution. This subject was considered and determined in United States v. Germaine, 99 U.S. 508, and in the recent case of United States v. Mouat, ante, 308. What we have here said is but a repetition of what was there authoritatively declared. [Id. at 532.]
Again, in United States v. Mouat, 124 U.S. 303 (1888), the court said:
* * * Unless a person in the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.
We do not see any reason to review this well established definition of what it is that constitutes such an officer. [Id. at 307.]
In Thomason v. United States, 85 F. Supp. 742, 743 (N.D.Cal. 1948), aff’d 184 F. 2d 105 (9th Cir. 1950), the court said:
* * * The United States Supreme Court and inferior Federal Courts have frequently been called upon to decide who are “officers of the United States.” The test used in the great majority of the cases is: Was the employee appointed by the “head of a department” or by one to whom the power of appointment has been delegated by the “head of a department”? U.S. v. Germaine, 1878, 99 U.S. 508, 25 L. Ed. 482; U.S. v. Mouat, 1888, 124 U.S. 303, 8 S. Ct. 505, 31 L. Ed. 463; Burnap v. U.S., 1920, 252 U.S. 512, 40 S. Ct. 374, 64 L. Ed. 692; Scully v. U.S., C.C., 193 F. 185; Morrison v. U.S., D.C., 40 F. 2d 286; Hoeppel v. U.S., 66 App. D.C. 71, 85 F. 2d 237; Brooks v. U.S., D.C., 33 F. Supp. 68.
*225What, then, is the nature of a government job? In United States v. Hartwell, 73 U.S. (6 Wall.) 385 (1867) the Supreme Court held:
An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.
$ ‡ ‡
A government office is different from a government contract. The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other. †
In commenting on the above holding in the Hartwell case, the court in Baskins v. United States, 32 F. Supp. 518, 519 (E.D.S.C. 1940), said:†
In connection with this section of the Constitution the Supreme Court of the United States in the case of United States v. Hartwell, 1867, 6 Wall. 385, 73 U.S. 385, 18 L. Ed. 830, construed the term office to mean a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure duration, emolument and duties. The court in this case, further held that the defendant, Hartwell, having been appointed by the head of his department within the meaning of the applicable constitutional provision upon the subject of the appointing power (Section 2, Article 2, Constitution) was an officer of the United States. See, also, United States v. Germaine, 1878, 99 U.S. 508, 25 L. Ed. 482; also Hall v. Wisconsin, 1880, 103 U.S. 5, 26 L. Ed. 302; also, Auffmordt v. Hedden, 1890, 137 U.S. 310, 11 S. Ct. 103, 34 L. Ed. 674; Fairchild v. United States, C.C.N.J., 1899, 91 F. 297; also United States v. McCrory, 5 Cir., 1899, 91 F. 295, citing with approval the Hartwell and Germaine cases, supra.
In Crenshaw v. United States, 134 U.S. 99 (1890), the Supreme Court held that even after appointment, a public officer had no vested or contract right in his office. The court said:
_ The primary question in this case, one which underlies the first, second and third of appellant’s propositions *226stated above, is, whether an officer appointed for a definite time or during good behavior had. any vested interest or contract right in his office of which Congress could not deprive him? The question is not novel. There seems to be but little difficulty in deciding that there was no such interest or right. * * * [Id. at 104-.]
The court in that case said further:
* * * We have already shown, that the appointment to and the tenure of an office created for the public use, and the regulation of the salary affixed to such an office, do not fall within the meaning of the section of the Constitution relied on by the plaintiffs in error; do not come within the import of the term contracts, or, in other words, the vested, private personal rights thereby intended to be protected. * * * [Id. at 105.]
*****
* * * Whatever the form of the statute, the officer under it does not hold by contract. He enjoys a privilege revocable by the sovereignty at will; and one legislature cannot deprive its successor of the power of revocation. Butler v. Pennsylvania, supra; Stone v. Mississippi, supra; Cooley’s Const. Lim. 283; United States v. McDonald, 128 U.S. 471, 473. [Id. at 108.]
Again, in Taylor v. Beckham, 178 U.S. 548 (1900), the Supreme Court wrote on this subject as follows:
The view that public office is not property has been generally entertained in this country.
^ # if: Ü« *
In Crenshaw v. United States, 134 U.S. 99, 104, Mr. Justice Lamar stated the primary question in the case to be: “Whether an officer appointed for a definite time or during good behavior had any vested interest or contract right in his office of which Congress could not deprive 'him.” And he said, speaking for the court: “The question is not novel. There seems to be but little difficulty in deciding that there was no such interest or right.” Butler v. Pennsylvania, supra; Newton v. Commissioners, 100 U.S. 548; Blake v. United States, 103 U.S. 227; and many other cases.
The decisions are numerous to the effect that public offices are mere agencies or trusts, and not property as such. Nor are the salary and emoluments property, secured by contract, but compensation for services actually rendered. * * * In short, generally speaking, the nature of the relation of a public officer to the public *227is inconsistent with either a property or a contract right. (Id. at 576-77.]
In Urbina v. United States, 192 Ct. Cl. 875, 881, 428 F. 2d 1280, 1284 (1970), we held:
* * * If, * * * plaintiff’s reliance is on some theory of contract law, his position would not be improved since it is plain that public employment does not, in a situation such as is here involved, give rise to a contractual relationship in the conventional sense. Borak v. United States, 110 Ct. Cl. 286, 78 F. Supp. 123, cert. denied, 335 U.S. 821 (1948). Cf. Lawrenson v. United States, 139 Ct. Cl. 370, 153 F. Supp. 790 (1957) * * *.
In Bailey v. Richardson, 182 F. 2d 46 (D.C. Cir. 1950), aff'd, 341 U.S. 918 (1951), the court said:
* * * If her status was merely that of an applicant for appointment, as we think it was, her nonappointment involved no procedural constitutional rights. Obviously, an applicant for office has no constitutional right to a hearing or a specification of the reasons why he is not appointed. * * * [Emphasis supplied.] [_Id. at 55.]
The court in that case held that government employ was neither property nor a contract and the due process clause of the Constitution does not apply, saying:
* * * The due process clause provides: “No person shall * * * be deprived of life, liberty, or property, without due process of law; * * It has been held repeatedly and consistently that Government employ is not “property” and that in this particular it is not a contract. We are unable to perceive how it could be held to be “liberty”. Certainly it is not “life”. So much that is clear would seem to dispose of the point. In terms the due process clause does not apply to the holding of a Government office. [Id. at 57.]
This holding in the Bailey case was quoted with approval in the case of Jenson v. Olson, 353 F. 2d 825, 828 (8th Cir. 1965), when it said:
On the issue of whether plaintiff was deprived of due process of law, the Court of Appeals for the District of Columbia in Bailey v. Richardson, supra, 182 F. 2d at page 57 had this to say:
“It has been held repeatedly and consistently that Government employ is not ‘property’ * * * the *228due process clause does not apply to tbe holding of a Government office.” [Id. at 828. ]
Other attributes and characteristics of a government job that should be noted are that the salary is incident to and a part of the job. Also, the salary is payable only to the person who is appointed to the job and holds the office, and, conversely, a government employee is entitled only to the salary of the position to which he has been appointed.
In Borak v. United States, 110 Ct. Cl. 286, 78 F. Supp. 123, cert. denied, 335 U.S. 821 (1948), this court said:
He was not working under a contract with a fixed time limit on the holding of the office. He held a public office with tenure, duties and compensation established by law. The salary was cm incident of the office and as this Court has repeatedly held, is payable not to those who do the work but to those who hold the office. Jacobs v. United States. 41 C. Cls. 452; Whiting v. United States, 35 C. Cls. 291, 301; Miller v. United States, 86 C. Cls. 609; Coleman v. United States, 100 C. Cls. 41. [Emphasis supplied.] [Id. at 247, 78 F. Supp. at 125.]
The court also said in that case:
* * * This Court has also said, “salaries fixed by Congress are the salaries payable to those who hold the office and not to those who perform the duties of the office.” Coleman v. United States, 100 C. Cls. 41, reaffirmed, Dvorkin v. United States, 101 C. Cls. 296.
******
This is not an action for damages but an action by the holder of the office for the salary attaching thereto. * * * [Id. at 246, 78 F. Supp. at 124.]
This court held in Price v. United States, 112 Ct. Cl. 198, 200, 80 F. Supp. 542, 543 (1948):
It is a well settled principle of law that federal government employees are entitled only to the salaries of the positions to which they are appointed regardless of the duties they actually perform. That rule of law was reaffirmed in the case of Coleman v. United States, 100 C. Cls. 41, and Dvorhin v. United States, 101 C. Cls. 296, certiorari denied 323 U.S. 730.
*229* * * [But] The salaries fixed by Congress are the salaries payable to those who hold the office and not to those who perform the duties of the office. * * *
And in the Dvorkin case, involving the same issues, it was held that the determinative test of a person's right to salary is not the duties performed, hut the position or grade to which he was appointed. [Id. at 200-01, 80 F. Supp. at 543.] [Emphasis supplied.]
These principles were again stated by this court in Ganse v. United States, 180 Ct. Cl. 183, 186, 376 F. 2d, 900, 902 (1967), when the court said:
* * * It is a well-settled principle of law that Federal Government employees are entitled only to the salaries of positions to which they are appointed, regardless of the duties they actually perform. Price v. United States, 112 Ct. Cl. 198, 200, 80 F. Supp. 542, 543 (1948) and cases cited. * * *
See also United States v. McLean, 95 U.S. 750 (1877); Coleman v. United States, 100 Ct. Cl. 41 (1943); Amundson v. United States, 128 Ct. Cl. 80, 120 F. Supp. 201 (1954); and Dvorkin v. United States, 101 Ct. Cl. 296, cert. denied, 323 U.S. 730 (1944).
The majority mentions some of these cases and the principles established by them, but brushes them aside by saying they involved cases where employees were appointed to one position but were claiming salaries of a higher paid position to which they had not been appointed. This is a distinction without a reason. There is no difference between those cases and the one before us. 3h all of them (including the plaintiff here) the claimants were demanding the salary of positions to which they had never been appointed and which they had never held. The foregoing principles apply to all of these cases including the case at bar.
We can conclude from the authorities cited above that a government job is not property, does not involve contract rights, but does include, tenure, salary and duties. It can only be conferred by appointment as authorized by Congress. Unless a person has been so appointed, he is not in the government employ and is not a public officer. No one has a con*230stitutional or vested right to a government job, and the due process clause of the Constitution does not apply to it. The denial of appointment to a government job violates no provision of the Constitution nor any private, personal, or vested right of the applicant. The salary of a government job is not property secured by contract, but compensation appropriated by Congress for services actually rendered. Salary is incident to and a part of the job and is payable only to the person who has been appointed to the position and holds the office. The determinative test of a person’s right to salary is the position to which he has been appointed. See the Dvorkin case, supra. If he has not been appointed, he is not entitled to the salary which is incident to and which attaches to the job.
When the plaintiff’s case is tested by these principles and these requirements, it is clear that she has not alleged a cause of action, and her petition should be dismissed.
3. The Appointment of the Plaintiff to a Government Job by the Court is an Unwarranted and Unauthorized Interference with and Usurpation of the Discretionary Function of cm Executive Agency
Although the majority opinion states that it is not appointing the plaintiff to a government job, the reverse is true as a matter of fact. I have shown above that the salary is incident to and a part of a government job, and that no one is entitled to be paid such salary unless he has been appointed to the job by an authorized person or agency, hiere, the court is awarding the plaintiff the salary of this job for three years, retroactively, which cannot be done unless she is being appointed to the job for such period of time. There is no other way she could be paid such salary. The HEW has not appointed her. It follows that the court is doing so. This is completely beyond the power of this court.
It has always been held by the Supreme Court and all other courts, including the Court of Claims, that the appointment of government employees is an executive agency function. Actually, Article 2, Section 2 of the Constitution (quoted above) so provides. The courts have held repeatedly that this function involves discretion on the part of the agency and will not be interfered with by the courts. This is *231so fundamental that citation of authority to support it should be unnecessary. However, since the majority opinion ignores the rule, citation of authority becomes necessary.
In 1839 the Supreme Court said in the case of Ex parte Hennen,, 38 U.S. (13 Pet.) 230 (1839):
* * * If the power to appoint a clerk was vested exclusively in the District Court, and the office was held at the discretion of the Court, as we think it was; then this Court can have no control over the appointment or removal, or entertain any inquiry into the grounds of removal. If the judge is chargeable with any abuse of his power, this is not the tribunal to which he is amenable : and as we have no right to judge upon this matter, or power to afford redress if any is required, we abstain from expressing any opinion upon that part of the case. [Id. at 261-62.]
Again, in 1840, the Supreme Court held in Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840):
* * * The 'Court could not entertain an appeal from the decision of one of the Secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion, or judgment. Nor can it by mandamus, act directly upon the officer, and guide and control his judgment or 'discretion in the matters committed to his care, in the ordinary discharge of his official duties. [Id. at 515.]
*****
The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief ; and we are quite satisfied that such a power was never intended to be given to them. * * * [Id. at 516.]
In United States v. McLean, 95 U.S. 750 (1877), the Supreme Court said:
* * * But courts cannot perform executive duties, or treat them as performed when they have been neglected. They cannot enforce rights which are dependent for their existence upon a prior performance by an executive officer of certain duties he has failed to perform. The right asserted 'by the claimant rests upon a condition unfulfilled. The judgment was therefore erroneous, and must be reversed, and the record remitted to the Court of Claims, with instructions to dismiss the petition; * * *. [Id. at 753.]
*232The Supreme Court cited the decision in Decatur v. Paulding, supra, with approval in the case of Kevin v. United States, 177 U.S. 290 (1900), which was an appeal from a Court of Claims decision (33 Ct. Cl. 174 (1898)), as follows:
It has been repeatedly adjudged that the courts have no general supervising power over the proceedings and action of the various administrative departments of government. Thus, in Decatur v. Paulding, 14 Pet. 497, 515, in which was presented the question of the right of the Circuit Court of the District of Columbia to issue a writ of mandamus to the Secretary of the Navy to perform an executive act not merely ministerial but involving the exercise of judgment, it was said by Chief Justice Taney:
“The court could not entertain an appeal from the decision of one of the Secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion or judgment. Nor can it by mandamus act directly upon the officer and guide and control his judgment or discretion in the matters committed to his care in the ordinary discharge of his official duties. * * * The interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them.”
The same proposition was reaffirmed in United States ex rel. Dunlap v. Black, 128 U.S. 40, in an elaborate opinion by Mr. Justice Bradley. See also United States ex rel. Redfield v. Windom, 137 U.S. 636; Boynton v. Blaine, 139 U.S. 306. * * * (Id. at 292-93.]
The Supreme Court then proceeded to set forth the correct rule as follows:
The appointment to an official position in the Government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment. The appointing power must determine the fitness of the applicant; whether or not he is the proper one to discharge the duties of the position. Therefore it is one of those acts over which the courts have no general supervising power. (Id. at 293.]
We followed the Keim case in Donnelly v. United States, 133 Ct. Cl. 120, 134 F. Supp. 635 (1955), when we said:
* * * Appointment is an executive function, involving the exercise of executive discretion. Keim v. United *233States, 177 U.S. 290. This court cannot exercise this function and in the absence of actual appointment, or facts equivalent thereto, we cannot award Plaintiff Donnelly compensation as commissaryman, chief. United States v. McLean, 95 U.S. 750, 753; Amundson v. United States, 128 C. Cls. 80; Coleman v. United States, 100 C. Cls. 41. [Id. at 122, 134 F. Supp. at 636.]
In Tierney v. United States, 168 Ct. Cl. 77, (1964), we said:
* * * The power of appointment is within the discretion of the head of a department. It is an executive function which involves exercising the discretion of the executive. Keim v. United States, 177 U.S. 290 (1900); Amundson v. United States, 128 Ct. Cl. 80, 120 F. Supp. 201 (1954); Donnelly v. United States, 133 Ct. Cl. 120, 134 F. Supp. 635 (1955); Goldstein v. United States, 131 Ct. Cl. 228, 130 F. Supp. 330 (1955), cert. denied 350 U.S. 888 (1955). If this court were to grant recovery to plaintiff it would in effect bestow upon plaintiff a promotion which he never received. In so doing, this court would be making an administrative decision. Such action would be a clear usurpation by the judiciary of an administrative function. * * * [Id. at 80.]
The majority opinion noted the above quotation from the Tierney case and then failed to follow it.
In Powell v. Brannan, 196 F. 2d 871 (D.C. Cir. 1952) the court held:
We think it well to reiterate that in civil service cases the task of the courts is a limited one. Certainly they cannot undertake to pass on a plaintiff’s qualifications for any given post, or to compare them with those of an incumbent. It is not within their province to weigh the merits of a person's claim to a Federal job. Congress has established administrative machinery to make these determinations. [Emphasis supplied.] [Id. at 873.]
The court said in Jenson v. Olson, 353 F. 2d 825 (8th Cir. 1965), citing Bailey v. Richardson, 182 F. 2d 46 (D.C. Cir. 1950):
No function is more completely internal to a branch of government than the selection and retention or dismissal of its employees. * * * [Id. at 829.]
We said in Bortin v. United States, 133 Ct. Cl. 856, 138 F. Supp. 251 (1956):
* * * It would be quite detrimental to the public service if an agency head had no discretion in selecting men to *234do important jobs. He is already circumscribed more than a little in Ms control over his subordinates. Further restraint upon him would be unwise. [Id. at 860, 138 F. Supp. at 253.]
We can conclude from these decisions that the appointment of a person to a government job, even if to a simple clerk’s job (as the Supreme Court said in the Keim case), is an executive function involving the exercise of executive function. As we said in the Donnelly case, “This court cannot exercise tMs function and in the absence of actual appointment, * * * we cannot award [the] Plaintiff * * * compensation [salary of a named job]. [Id. at 122.]
Accordingly, the appointment of the plaintiff to an HEW job by the court and awarding her the salary of the job retroactively for three years is completely beyond the power of this court. We do not have jurisdiction to entertain a claim of tMs kind. The plaintiff’s suit should be dismissed.
J¡.. The Aff ointment of Plamtiff to a Government Jol)by the Oourt is cm Attempt by the Court to Exercise Equitable Powers it does not Possess.
No citation of authority is necessary for the proposition that the Court of Claims has not been invested with general equity powers by the Congress. It has no authority to take jurisdiction in a purely equitable proceeding. It cannot issue a mandamus or an injunction nor render a declaratory judgment in a suit brought for that purpose. It cannot restore a discharged government employee to Ms job even if he has been fired illegally. This was the decision of this court in Casman v. United States, 135 Ct. Cl. 647 (1956), when we said:
* * * [T]he Court of Claims is without jurisdiction to restore plaintiff to his position. Ora Erskine Gaines v. United States, 132 C. Cls. 408. [Id. at 650.]
Since this court has no general equity powers and does not have jurisdiction to restore an illegally discharged government employee to his job, how can it appoint the plaintiff to a job she never held? Where does it get jurisdiction to exercise such equitable powers ?
We do not have to look far to find the answers to these questions. They are fully stated in the recent case of United *235States v. King, 395 U.S. 1 (1969). In that case, the plaintiff was retired from the Army for longevity. He contended that he should have been retired for disability. In the latter case, he would have been exempt from income taxation. He sought and obtained a declaratory judgment in his favor in the Court of Claims. The Supreme Court reversed the decision, saying this court did not have equitable powers to render a declaratory judgment. The decision of the Supreme Court should be dispositive of the plaintiff’s case here. It held:
The Court of Claims was established by Congress in 1855. Throughout its entire history up until the time that this case was filed, its jurisdiction has been limited to money claims against the United States Government. In 1868 this Court held that “the only judgments which the Court of Claims [is] authorized to render against the government . . . are judgments for money found due from the government to the petitioner.” United States v. Alire, 6 Wall. 573, 575. In United States v. Jones, 131 U.S. 1, this Court reaffirmed this view of the limited jurisdiction of the Court of Claims, and held that the passage of the Tucker Act in 1887 had not expanded that jurisdiction to equitable matters. More recently, in 1962, it was said in the prevailing opinion in Glidden Co. v. Zdanok, 370 U.S. 530, 557, on a point not disputed by any of the other members of the Court that “[f]rom the beginning [the Court of Claims] has been given jurisdiction only to award damages . . . .” No amendment purporting to increase the jurisdiction of the Court of Claims has been enacted since the decision in Zdanok.
The foregoing cases decided by this Court therefore clearly show that neither the Act creating the Court of Claims nor any amendment to it grants that court jurisdiction of this present case. That is true because Colonel King’s claim is not limited to actual, presently due money damages from the United States. Before he is entitled to such a judgment he must establish in some court that his retirement by the Secretary of the Army for longevity was legally wrong and that he is entitled to a declaration of his right to have his military records changed to show that he was retired for disability. This is essentially equitable relief of a hind that the Court of Claims has held throughout its history, up to the timie this present case was decided, that it does not have the power to grant. [Id. at 2-3.]
*236As can be seen from the Kmg decision, the Supreme Court held in plain and unequivocal language that this court cannot exercise equity powers. Yet the court is doing so in appointing the plaintiff to a government job, notwithstanding the King decision.
It is important to note that in the Kmg case, the Supreme Court not only held that this court did not have equitable powers, but also that it did not have jurisdiction of plaintiff’s claim in that case because it “was not limited to actual, presently due money damages from the United States.” The Supreme Court went on to say that before plaintiff King is entitled to a judgment 'he must establish in some court (other than the Court of Claims) that his retirement for longevity was legally wrong and that he is entitled to a declaration (declaratory judgment) of his right to have his military records changed to show that he was retired for disability. The Court then said that this was equitable relief which the Court of Claims did not have the power to grant. This part of the Kmg decision is particularly significant when applied to the case before us. If so applied, it would mean that this court does not have jurisdiction of plaintiff’s claim in the present case “because it is not limited to actual, presently due money damages from the United States.” No court 'having jurisdiction has determined that the plaintiff is entitled to any money damages nor the amount thereof, if any. No court having jurisdiction has decided that any money damages are presently due to plaintiff from the United States. These determinations must be made in some other court before the plaintiff can sue the United States for money damages in this court. In other words, applying the Kmg decision further to our case, before the plaintiff here would be entitled to a judgment for money damages against the United States, she would have to “establish in some court” (other than the Court of Claims) that she was entitled to be appointed to the government job in question and obtain a “declaration of her right” to the job. This is equitable relief that the Supreme Court held the Court of Claims does not have the power to grant. Since these prerequisites have not been met, this court does not have jurisdiction of the plaintiff’s case.
*237Under these Circumstances, the decision of the majority that the plaintiff was wrongfully denied a government job to which she was entitled and that by reason thereof she is entitled to money damages from the United States, is a declaratory judgment of her rights which is equitable relief beyond the power of this court to grant, as stated above.
5. This Couurt Lacks Jurisdiction of Plaintiff's Suit Because of the Sovereign Imrmmity From Suit of the United States, which has not been Waived by an Act of Congress.
It is fundamental that the United States as a sovereign cannot be sued without its consent. This consent can only be given by the Congress. The consent must be embodied in an Act of Congress 'and must be specific and explicit and cannot be implied by construction of an ambiguous statute. The waiver of sovereign immunity must be contained in an express enactment of Congress. No officer of the United States can give consent for the government to be sued nor waive its sovereign immunity from suit. If these prerequisites are not complied with, the court lacks jurisdiction to entertain the suit.
In the case of United States v. Shaw, 309 U.S. 495 (1940), the Supreme Court held:
* * * [W]ithout specific statutory consent, no suit may be brought against the United States. No officer by his action can confer jurisdiction. [Emphasis supplied.] [Id. at 500-01.]
The Supreme Court confirmed the holding of the Shaw case on both points quoted above in its decision in United States v. U.S. Fidelity & Guaranty Co., 309 U.S. 506 (1940), and held further:
* * * Absent that consent, the attempted exercise of judicial power is void. * * * [Id. at 514.]
In Nassau Smelting & Refining Works v. United States, 266 U.S. 101 (1924), the Supreme Court held:
* * * The objection to a suit against the United States is fundamental, whether it be in the form of an original action or a set-off or a counterclaim. Jurisdiction in either case does not exist unless there is specific congressional authority for it. * * * [Id. at 106.] [Emphasis supplied.]
*238Again, in United States v. Sherwood, 312 U.S. 584 (1941), the Supreme Court said:
The United States, as sovereign, is immune from suit save as it consents to be sued, United States v. Thompson, 98 U.S. 486; United States v. Lee, 106 U.S. 196; Kansas v. United States, 204 U.S. 331; Minnesota v. United States, 305 U.S. 382, 387; Keifer as Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388; United States v. Shaw, 309 U.S. 495 (see cases cited in The Pesaro, 277 F. 473, 474, et seq.), and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit. Minnesota v. United States, supra, 388 and cases cited; cf. Stanley v. Schwalby, 162 U.S. 255, 270. [Id. at 586-87.]
* * * ❖
Except as Congress has consented there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States, or for the review of its decisions by appellate courts. Luckenbach Steamship Co. v. United States, 272 U.S. 533, 536, et seq. * * * [Id. at 587-88.]
The plaintiff’s suit does not meet any of these requirements. The only statute that is in any way related to her claim is 5 U.S.C. §7151, Supp. V. (1965-69) which provides:
§ 7151. Policy.
It is the policy of the United States to insure equal employment opportunities for employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy.
We look in vain for any waiver of sovereign immunity from suit or consent to be sued in this statute if the policy set forth in the statute is violated. The statute shows on its face that it does not vest any legally enforceable rights in the plaintiff, nor create a cause of action in her favor, nor waive immunity from suit. The most that could be said of the statute, if it created any rights in the plaintiff, is that it limited her to administrative remedies. This is clearly within the power and discretion of Congress. The Supreme Court pointed this out in the case of Lynch v. United States, 292 U.S. 571 (1934), when it said:
* * * When the United States creates rights in individuals against itself, it is under no obligation to provide *239a remedy through, the courts. United States v. Babcock, 250 U.S. 328, 331. It may limit the individual to administrative remedies. Tutun v. United States, 270 U.S. 568, 576. * * * [Id. at 582.]
In the present case, the plaintiff asked for and obtained an administrative remedy. She was given a job through the administrative process. That was more than she was entitled to, inasmuch as the facts show that there was no racial discrimination in the case. However, her entitlement to the job that was created for her by the administrative agency is not before us, except that it shows that she received administrative relief under the statute. The plain meaning of the Act shows that Congress never intended that she could receive more than that.
The majority opinion attempts to avoid the long-established rule that sovereign immunity from suit and consent to be sued can only be granted by a specific and explicit Act of Congress by implication in its construction of the statute (5 U.S.C. § 7151) quoted above. The majority opinion states in this regard:
* * * Congress indicated its intent that 5 U.S.C. § 7151, supra, be more than merely hortatory when it instructed the President to “use his existing authority to carry out this policy” of equal employment opportunity. * * * When it [the Congress] desires to exclude a class of claim from judicial review it knows how to do so. * * * But absent such a clear manifestation that access to the courts is prohibited where a specific right has been created, we think it is the intent of Congress that the general jurisdictional statutes are controlling. * * *
In other words, the majority opinion is saying that since 5 U.S.C. § 7151 does not prohibit anyone complaining of a violation of the non-discrimination policy of the Act from suing the United States in court, the consent of the government to be sued is established by implication. This is not the law. It is the identical argument that was rejected by the Supreme Court in the recent case of United States v. King, supra. It will be recalled that in that case the plaintiff was suing for a declaratory judgment in the Court of Claims. We held that we had jurisdiction to render a declaratory *240judgment under the terms of the Declaratory Judgment Act, 28 U.S.C. §2201 (1964), which provides:
§ 2201. Creation of remedy.
In a case of actual controversy within its jurisdiction, * * * any court of the United States * * * may declare the rights and other legal relations of any interested party seeking such declaration, * * *.
The Supreme Court held we had no such jurisdiction, saying:
* * * For the court 'below, it was sufficient that there was no clear indication that Congress affirmatively intended to exclude the Court of Claims from the scope of the Declaratory Judgment Act. We think that this approach runs counter to the settled propositions that the Court of Claims’ jurisdiction to grant relief depends wholly upon the extent to which the United States has waived its sovereign immunity to suit and that such a waiver cannot be implied but must be unequivocally expressed. United States v. Sherwood, 312 U.S. 584. [Emphasis supplied.] [United States v. King, 395 U.S. at 4.]
As can be seen from the above, the Supreme Court rejected the argument that 'by implication the Court of Claims could issue a declaratory judgment since the Declaratory Judgment Act did not affirmatively exclude it. This is precisely the position taken by the majority in this case. The King case is squarely against the majority opinion in this regard.
Many cases have held that the waiver of sovereign immunity cannot be implied but must be unequivocally expressed. In General Mut. Ins. Co. v. United States, 119 F. Supp. 352 (N.D.N.Y. 1953), the court said:
It is beyond argument that the United States may be sued only where its immunity has been specifically waived by statute, and that such waiver may not be implied in the construction of an ambiguous statute. [Id. at 354.] [Emphasis supplied.]
In Leyerly v. United States, 162 F. 2d 79 (10th Cir. 1947), the court held:
The government does not consent to be sued by implication, and consent to be sued should not be extended beyond the plain terms of the authorizing statute. Price v. United States and Osage Indians, 174 U.S. 373, 19 S. Ct. 765, 43 L. Ed. 1011; Eastern Transportation Co. v. *241United States, 272 U.S. 675, 47 S. Ct. 289, 71 L. Ed. 472; * * *. [Emphasis supplied.] [Id. at 84.]
In the case of North Dakota-Montana Wheat Growers' Ass’n v. United States, 66 F. 2d 573 (8th Cir. 1933), the court said:
It is fundamental that the United States cannot be sued without its permission, and that permission must be specifically granted by Congress. It will not be implied. It is a deep-rooted principle in the fabric of all English speaking countries that a sovereign is immune from suits in its own courts. In Nassau Smelting & Refining Works, Ltd. v. United States, 266 U.S. 101,106, 45 S. Ct. 25, 69 L. Ed. 190, the court said: “The objection to a suit against the United States is fundamental, whether it be in the form of an original action, or a set-off, or a counterclaim. Jurisdiction in either case does not exist, unless there is specific congressional authority for it. * * * [Emphasis supplied.] [Id. at 577.]
It follows that since no express waiver of sovereign immunity from suit was contained in 5 U.S.C. § 7151, supra, this court has no jurisdiction of plaintiff’s suit based on such waiver by implication as stated in the majority opinion.
I now reach the question of whether or not Executive Order 11478 and the HEW regulations based thereon (which in turn are necessarily based on 5 U.S.C. § 7151), and which set forth a policy of non-discrimination in government employment, constitute a waiver of sovereign immunity from suit of the United States. I have already shown that such a waiver of immunity can only be given by an express enactment of Congress. It follows, of course, that no executive agency nor the President can perform this function by regulations or executive orders. The decided cases hold in unequivocal terms that no officer of the government can waive the sovereign immunity of the United States from suit nor give its consent to be sued. See United States v. Shaw, supra, and United States v. U.S. Fidelity & Guaranty Co., supra, in both of which cases the Supreme Court held that no officer of the government could by his action give consent of the United States to be sued and thereby confer jurisdiction of such suit on the court. See also, Munro v. United States, 303 U.S. 36 (1938); Finn v. United States, 123 U.S. *242227, 233 (1887); and Jones v. Tower Production Co., 120 F. 2d 779, 782 (10th Cir. 1941). We must conclude, therefore, that E.O. 11478 and the HEW Begulations are totally ineffective to waive the sovereign immunity of the government from suit.
Actually, E.O. 11478 and the HEW Begulations do not purport to waive such sovereign immunity. They do not purport to vest legally enforceable rights in the plaintiff for a violation of the non-discrimination policy set forth therein, nor to create any cause of action in favor of the plaintiff. As is the case with the statute (5 U.S.C. § 7151), one looks in vain at the language of E.O. 11478 and the HEW Eegula-tions for provisions authorizing the plaintiff to sue the United States under the circumstances of this case. Here again, the majority resorts to implication to give the plaintiff the right to sue the government in this court. In this regard, the majority opinion states:
* * * There is no statute that precludes relief * * *.
*****
* * * [W]hen plaintiff made application for employment with a Federal agency, she came under the protection of the Executive Orders, which by terms and by implication, apply to applicants as well as employees. * * * [Emphasis supplied.]
Such implications are subject to the same argument as that set forth above with reference to implications as to waiver of sovereign immunity from suit in connection with the statute. Even if the President or the HEW had the power to give the consent of the government to be sued, which they do not have, E.O. 11478 and the HEW Begulations here do not do so.
I now come to a consideration of the Tucker Act (28 U.S.C. § 1491) as amended, which is as follows:
The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
*243The plaintiff does not base her claim on this statute, but relies on E.O. 11478. The majority opinion states:
* * * The sole question for our determination is whether, in the circumstances, EO 11478 provides a legal basis for awarding back pay to such an applicant for Federal employment. * * *
Nevertheless, the majority opinion and the plaintiff seem to assume that 1491 gives the plaintiff the right to sue the government and confers jurisdiction on this court to entertain the suit. There is no basis for this position.
In Congress of Racial Equality v. Commissioner, Social Sec. Admin., 270 F. Supp. 537 (D. Md. 1967), a suit was filed to enforce Executive Order No. 11246 (the predecessor of E.O. 11478) concerning equal opportunity in Federal employment. The case was dismissed for lack of jurisdiction. The District Court, having concurrent jurisdiction with the Court of Claims with respect to actions under $10,000 based on any Act of Congress or regulation of any executive agency (28 U.S.C. 1346), held that E.O. 11246 was for guidance of the Federal agencies and no role was created for the judiciary in its enforcement. It is to be noted that 28 U.S.C. § 1346 is the same for District Courts, except for the $10,000 limitation, as the Tucker Act (28 U.S.C. § 1491) is for the Court of Claims.
The case of Manhattan-Bronx Postal Union v. Gronouski, 350 F. 2d 451 (D.C. Cir. 1965), cert. denied, 382 U.S. 978 (1966), involved the enforcement of Executive Order 10988 (27 Fed. Reg. 551) regarding the recognition of a postal union. The Court affirmed the order of the District Court dismissing the case for lack of jurisdiction and because of sovereign immunity saying:
Executive Order 10988 represents in essence a formulation of broad policy by the President for the guidance of federal employing agencies. It had no specific foundation in Congressional action, nor was it required to effectuate any statute. It could have been withdrawn at any time for any or no reason. * * *
The President did not undertake to create any role for the judiciary in the implementation of this policy. * * *
* * * If appellants disagreed with the Postmaster General’s decision as to this aspect of personnel policy, and *244believed it to be contrary to tlie President’s wishes, it is obvious to whom their complaint should have been directed. It was not to the judicial branch. Congress has gi/oen the District Court many important functions to perform, but they do not include policing the faithful execution of Presidential policies by Presidential appointees. [Emphasis supplied.] [Id. at 456-57.]
The most significant case involving jurisdiction and sovereign immunity in the enforcement of Executive Orders is Gnotta v. United States, 415 F. 2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934 (1970). That case involved E.O. 11246, Which later became E.O. 11478 that is involved in the case before us. That case was in many ways “on all fours” with our case and is dispositive of plaintiff’s case here. The opinion in that case was written by Judge Blackmun, now Mr. Justice Blackmun of the Supreme Court. In that case the plaintiff sued the United States for damages because he had not been promoted as a government employee. The court dismissed the case for lack of sovereign immunity, saying:
1. One cannot sue the United States without its consent and a court has no jurisdiction of a suit against the United States to which it has not consented. United States v. Sherwood, 312 U.S. 584, 586-588, 61 S. Ct. 767, 85 L. Ed. 1058 (1941); Mancilla v. United States, 382 F. 2d 269 (9 Cir. 1967), cert. denied, 390 U.S. 982, 88 S. Ct. 1104, 19 L. Ed. 2d 1280. [Id. at 1276.]
With regard to jurisdiction under the Tucker Act, the court said:
The third or damage count remains. For the reasons set forth above, it, too, is dismissable as to all defendants named other than the United States. The plaintiff, however, bases the count specifically on the Tucker Act, 28 U.S.C. § 1346(a) (2), which gives the United States district courts 'original jurisdiction, concurrent with the Court of Claims, of
“Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliqui-dated damages in cases not sounding in tort”
*245and thereby suggests the existence of consent to be sued. As to this, we adopt Judge Oliver’s comments:
“The plaintiff does not allege that his 'alleged cause of action was created or authorized by any particular provision or section of the Constitution, Act of Congress, [or] regulation of any executive department. Nor does he allege what sort of an express or implied contract he attempts to base his claim. None of the executive orders or regulations which the complaint cites purports to confer any right on an employee of the United States to institute a civil action for damages against the United States, m the event of their violation, even if it should be established that plaintiff’s failure to have been promoted as an employee of the Corps of Engineers was in fact due to discrimination in violation of the Executive Orders pleaded. Congress has complete power either to create or to refuse to create such a remedy. It did not authorise civil actions for damages under any of the laws (including the Executive orders and regulations) applicable to facts pleaded by plaintiff in this case. [Emphasis supplied.] [Id. at 1277-78.]
The court in that case then proceeded to point out that plaintiff Gnotta had already received the administrative relief provided for in the Executive Order. We have already shown that the plaintiff in our case has received such relief by being given a job. On this point, the court in Gnotta said:
We emphasize that Executive Order No. 11246 enunciates government policy by way of prohibiting discrimination because of national origin; imposes that policy on the “head of each executive department and agency”; and directs the Civil Service Commission to “supervise and provide leadership and guidance”, to provide for the impartial consideration of all complaints of discrimination, for at least one impartial review within the department, and for appeal to the Commission. All this has been provided to plaintiff Gnotta (except that he now challenges on appeal the impartiality of the trial examiner). But none of the Executive Order's language speahs in terms of money damages or of a money claim against the United States.
The third count, too, was properly dismissed. [Emphasis supplied.] [Id. at 1278.]
*246In the case at bar, the majority opinion finds implied consent for the government to be sued under the Tucker Act by certain provisions of the Administrative Procedure Act (5 U.S.C. §§ 702, 704). Judge Blackmun disposed of such a theory by saying in the Gnotta case:
* * * [T]he Administrative Procedure Act is not “to be deemed an implied waiver of all governmental immunity from suit.” Blackmar v. Guerre, 342 U.S. 512, 514-516, 72 S. Ct. 410, 412, 96 L. Ed. 534 (1952); Bell v. Groak, 371 F. 2d 202, 204 (7 Cir. 1966). [Id. at 1277.]
The majority opinion complains that “our line of [back pay] cases, expressing a different view [to that expressed in Gnotta] apparently was not cited or considered [by Judge Blackmun].” The truth of the matter is that the back pay cases referred to (Service v. Dulles, 354 U.S. 363 (1957) ; Glidden v. United States, 185 Ct. Cl. 515 (1968); Fletcher v. United States, 183 Ct. Cl. 1, 392 F. 2d 266 (1968); Greenway v. United States, 163 Ct. Cl. 72 (1963), 175 Ct. Cl. 350 (1966), cert. denied, 385 U.S. 881; Daub v. United States, 154 Ct. Cl. 434, 292 F. 2d 895 (1961) ; Starzec v. United States, 145 Ct. Cl. 25 (1959); Watson v. United States, 142 Ct. Cl. 749, 162 F. Supp. 755 (1958); and Simon v. United States, 113 Ct. Cl. 182 (1949)) do not express a different view. All of these cases involve the illegal discharge of employees who had been properly appointed to their jobs and had been fired in violation of statutes or executive agency regulations, or both. The back pay was awarded to them because they were considered as not having been discharged at all, since their discharge was illegal. This principle was aptly described by the Supreme Court in United States v. Perkins, 116 U.S. 483 (1886) (appealed from the Court of Claims) as follows:
“It follows that as the claimant * * * [was illegally discharged] he is still in office and is entitled to the pay attached to the same.” [Id. at 485.]
To the same effect is United States v. Wickersham, 201 U.S. 390 (1906), which was also appealed from the Court of Claims. These cases are cited by the court in Borak v. United States, supra, as leading cases on this point.
*247The entitlement of an illegally discharged employee to back pay because he is considered as still in office is considerably different to a claimant demanding salary for a job to which he has never been appointed and which he has never held. Consequently, the majority opinion is in error in treating them alike and in saying that the awarding of back pay to illegally discharged employees by this court expresses a “different view” to that expressed by Judge Blackmun in the Gnotta case.
The majority opinion relies particularly on the language of the opinion in Simon v. United States, 113 Ct. Cl. 182 (1949) and quotes extensively from it. In that case the plaitiff was an illegally discharged employee who had lost his job in a reduction-in-force program in violation of a statute and agency regulations. Thus, it is obvious that the facts are completely different to the present case and the decision of the court is not in point. However, the court made it clear that the employee was entitled to his salary not only under the regulations, but also under the Act of 1883. The court said:
* * * [W]e think the plaintiff is entitled to recover the salary in question if the facts show, as they clearly do in this case, that during the period involved he was illegally deprived, of the position he had held and the salary thereof under the terms and conditions of the Act of 1883 [22 Stat. 403; 5 U.S.C. § 633] and the regulations made and promulgated thereunder. [Emphasis supplied.] [Id. at 194.]
It is clear that the back pay eases of illegally discharged employees are not in point and are not precedents to show jurisdiction of the plaintiff’s case in this court.
The majority opinion also cites back pay cases under the Veterans’ Preference Act (58 Stat. 390) and military disability retirement compensation cases as authorities for the proposition that this court has jurisdiction of plaintiff’s case. Those cases are not in point because they involve situations where the claimants were employees in the military service and entitled to compensation by reason of a particular statute or a statute and regulations based thereon. They do not involve a case, as here, where the claimant demands the salary *248of a job to which, she had never been appointed and in which she had never rendered any services.
Executive Order 11478 on which plaintiff principally relies was nothing more than the statement of a policy by the President. It was for the guidance of Federal employing agencies, as stated in Congress of Racial Equality v. Commissioner, Social Sec. Admin., supra, and Manhattan-Bronx Postal Union v. Gronouski, supra. The President has many policies, such as those against inflation, against high interest rates, for full employment, for international peace, for adequate public housing, for law and order, against riots in the streets, against the busing of children from one neighborhood to another to integrate the races in the schools, and many others. These policies do not vest any rights in individuals, nor give them a cause of action against the government if any of such policies are violated. These policies do not command nor even suggest the payment of money to any citizen where a policy is violated. This is the situation facing the plaintiff with respect to E.O. 11478. It was a policy for the guidance of Federal agencies and nothing more. If it was violated, the plaintiff has no right to sue the government in this court by reason thereof.
The same principles apply to a policy expressed in a statute (as in this case). The Supreme Court aptly described the effect of a statutory policy in Dodge v. Board of Education, 302 U.S. 74 (1937), when it said:
* * * [A]n act merely fixing salaries of officer’s creates no contract in their favor and the compensation named may be altered at the will of the legislature. This is true also of an act fixing the term or tenure of a public officer or an employe of a state agency. The presumption is that such a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature stall ordain otherwise * * * [Emphasis supplied.] [Id. at 78-79.]
The Tucker Act is not a blanket consent for the government to be sued in the Court of Claims in all cases involving an Act of Congress or a regulation of an executive agency. For instance, the Court of Claims does not have jurisdiction of suits for injunction, mandamus, declaratory judgment, or restoration to office of an illegally discharged employee, even *249though such suits are based on the violation of a statute or a regulation of an executive agency. The Court of Claims does not have jurisdiction of such suits because Congress has not given its consent for the government to be sued in the Court of Claims in such cases. Before a claimant can sue the United States in the Court of Claims on a claim based on a statute or an executive departmental regulation, he must show (1) the Congress has by statute expressly consented to such suit here, and (2) that he has a valid cause of action. The plaintiff has not met either requirement in the case before us.
The plaintiff asks us to place her in a job to which she was never appointed, to pay her the salary of the job she never earned, to issue a declaration of her rights, to pay her money not presently due, and to pay her damages on a claim sounding in tort. There is no consent by the government under the Tucker Act to be sued in this court on claims of this kind.
Judge Davis, in speaking for a unanimous court, in the case of Eastport Steamship Corp. v. United States, 178 Ct. Cl. 599, 372, F. 2d 1002 (1967), set forth principles which bar the plaintiff’s suit when applied to the case before us. In that case, the plaintiff bought foreign merchant vessels under the provisions of Sections 9 and 37 of the Shipping Act (46 U.S.C. § 808 (1965 Supp.)). The Act provided that the purchaser would have to get the permission of the Maritime Commission to sell the ships. Later, the plaintiff got an offer from a purchaser to buy the ships for $560,000. The Maritime Commission refused permission for the sale. Later on, plaintiff got another offer for the purchase of the vessels for $375,000. The Commission approved the sale and it was completed. Thereafter, the plaintiff sued the United States for the difference in price of the two offers as damages. In an exhaustive opinion, we set forth the principles on which a suit may be maintained in this court under the Tucker Act. The court said:
Section 1491 of Title 28 of the United States Code allows the Court of Claims to entertain claims against the United States “founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied *250contract with the United States, or for liquidated or un-liquidated damages in cases not sounding in tort”. But it is not every claim involving or invoking the Constitution, a federal statute, or a regulation which is cognizable here. The claim must, of course, be for money. Within that sphere, the non-contractual claims we consider under Section 1491 can be divided into two somewhat overlapping classes — those in which the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum; and those demands in which money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury. In the first group (where money or property has been paid or taken), the claim must assert that the value sued for was improperly paid, exacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation. In the second group, where no such payment has been made, the allegation must be that the particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum. See South Puerto Rico Sugar Co. Trading Corp. v. United States, 167 Ct. Cl. 236, 244-45, 334 F. 2d 622, 626-27 (1964), cert. denied, 879 U.S. 964 (1965). [Emphasis supplied.] [Id. at 605, 372 F. 2d at 1007.]
The second category includes the varied litigations in which we are urged to hold that some specific provision of law embodies a command to the United States to pay the plaintiff some money, upon proof of conditions which he is said to meet. Familiar examples are inverse eminent domain by a taking without formal proceedings (United States v. Causby, 328 U.S. 256 (1946) ); a suit by a separated reserve officer for disability retired pay (Lemly v. United States, 109 Ct. Cl. 760, 75 F. Supp. 248 (1948)) ; an action for back pay occasioned by a wrongful dismissal from the civil service (Elchibegoff v. United States, 106 Ct. Cl. 541 (1946), cert. granted, 329 U.S. 704 (1946), cert. dismissed, 329 U.S. 694 (1947)); or a claim for compensation for flood damage authorized by statute (United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950)). See, also, United States v. Central Eureka Mining Co., 357 U.S. 155, 162-65, 169-79 (1958) ; Bell v. United States, 366 U.S. 393 (1961). In this type of case, we have held, “a claimant who says that he is entitled to money from the United States because a statute or a regulation [or the Constitution] grants him that *251right, in terms or by implication, can properly come to the Court of Claims, at least if his claim is not frivolous but arguable.” Ralston Steel Corp. v. United States, 169 Ct. Cl. 119, 125, 340 F. 2d 663, 667 (1965), cert. denied, 381 U.S. 950.
Monetary claims which cannot be brought within these limits are beyond this court's jurisdiction, even though they may intimately involve the Constitution, an Act of Congress, or an executive regulation. This is the reverse of saying that this court is not concerned with any and all pecuniary claims against the Federal Government, simply because they rely upon (and in that sense are “founded upon”) an aspect of federal, constitutional, statutory or regulatory law. Where the claimant is not suing for money improperly exacted or retained (the first class defined above), the historical boundaries of our competence have excluded those instances in which the basis of the federal claim — be it the Constitution, a statute, or a regulation — cannot be held to command, in itself and as correctly interpreted, the payment of money to the claimant, but in which some other principle of damages has to be invoiced for recovery. A federal criminal defendant, for instance, who has been invalidly convicted or deprived of his liberty because of a violation of the Constitution or an Act of Congress cannot obtain compensation under 28 U.S.C. § 1491 for his loss (although remedies may occasionally be available under the unjust conviction sections (28 U.S.C. §§ 1495, 2513) or some parts of the civil rights legislation). The provisions which void the conviction do not direct the payment of damages for the consequences of the illegality. Under Section 1491 what one must always ask is whether the constitutional clause or the legislation which the claimant cites can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained. If not, this court cannot give relief under Section 1491, although some separate general principle — arising, for example, from tort law — might lead to a remedy in another forum or under some special relief provision. [Emphasis supplied.] [Id. at 606-07, 372 F. 2d at 1008-09.]
*****
* * * There is not a word in the text suggesting that the United States will compensate an applicant who suffers a business loss because of the Commission’s improper *252failure to grant the request. Nor are we pointed to anything in the Act’s legislative history hinting at that result. There is no decision of this or any other federal court holding or intimating that the United States will be liable under the Tucker Act for such a commercial injury resulting from a failure or wrong done in the course of the regulatory process. We would Time to breah entirely new and treacherous ground to find in Section 9 an implied directive to allow such compensation.
We decline to take that giant step. * * * [Emphasis supplied.] [Id. at 608, 372, F. 2d at 1009.]
Under this decision, the plaintiff’s claim is clearly outside the jurisdiction of this court. There is no allegation by the plaintiff that any particular provision of the law grants her “a right to be paid a certain sum.” Since there is not a word in the statute, the regulation or the executive order commanding or even suggesting the payment of money to the plaintiff, and since she has to invoke some other principle of damages if she is to recover, this court does not have jurisdiction of her case. This is the plain and unequivocal holding of this court in the Eastport case. The majority is truly breaking “entirely new and treacherous ground” in legislating that “by implication” it is authorized to pay the plaintiff the salary of a job to which she was never appointed and in which she never served. Certainly Congress has never given consent for the government to be sued in such a case.
6. This Court does not Have Jurisdiction of Plaintiff’s Case Because Her Claim Sounds in Tort.
The plaintiff is not suing on a contract. She is not suing for money presently due, as she was never appointed to the job involved here and never performed any services. No court having equity powers has ever declared her rights to the salary incident to the job. Until these requirements are met, United States v. King, supra, bars her recovery of salary in this court. Yet the plaintiff sues here for $18,000 as damages for the alleged misconduct of Mr. Billings, the HEW official, in refusing to appoint her to a job. Such an action is one sounding in tort by statutory definition. We only have to look at the Federal Tort Claims Act (28 U.S.C. §§ 1346, 2680 (1964)) to find that this is true. Section 2680(a) excepts *253from coverage claims for injuries based on the 'act or omission of a government employee in the execution of a statute or regulation, or based upon the performance or the failure to perform a discretionary function by a Federal agency or government employee, whether or not the discretion involved be abused. The statute is as follows:
§2680. Exceptions.
The provisions of this chapter 'and section 1346 (b) of this title shall not apply to—
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
The statute could not have been written in any different manner that would have covered the plaintiff’s claim more completely than it does now. It fits the plaintiff’s case “like a glove.” This is true because her claim is based on the act or omission of Mr. Billings, in the exercise of his official duties under the statute and regulations, governing his department, in refusing to employ the plaintiff. Furthermore, Mr. Billings and his agency were performing a discretionary function, and even if this discretion was abused, the plaintiff has no cause of action because of it.
The same situation existed in Eastport Steamship Corp. v. United States, supra. There we held that the plaintiff’s Claim based on the refusal of the Maritime Commission to grant the permit for the sale of the ships came squarely within the terms of Section 2680(a) and was a tort action. Judge Davis in speaking for the court in that case said:
* * * Congress has always withheld from this court and from the Tucker Act original jurisdiction over tort claims against the Government (Gibbons v. United States, 75 U.S. (8 Wall.) 269, 274-75 (1868); Langford v. United States, 101 U.S. 341 (1879); Bigby v. United States, 188 U.S. 400 (1903); J. Ribas y Hijo v. United States, 194 U.S. 315, 323 (1904)); and liability for damages occasioned by wrongful regulatory action smacks *254more of tort than, of non-tortious obligation. [178 Ct. Cl. at 609, 372 F. 2d at 1010.]
*****
Dalehite v. United States, 346 U.S. 15, 26-30, 32-34, 35-38 (1953), makes it absolutely plain that the Maritime Commission’s function in acting under Section 9 was discretionary and that there would be no liability under the Tort Claims Act even if the agency abused its discretion (as plaintiff asserts). The discretion protected by § 2680(a) “is the discretion of the executive or the administrator to act according to one’s judgment of the best course, a concept of substantial historical ancestry in American law.” Id. at 34. “Where there is room for policy judgment and decision there is discretion.” Id. at 36. And “it is clear that the * * * clause as to abuse connotes both negligence and wrongful acts in the exercise of the discretion * * *. The exercise of discretion could not be abused without negligence or a wrongful act.” Id. at 33. The legislative history of the Tort Claims Act fully and specifically supports these holdings. Id. at 27-30. [178 Ct. Cl. at 610, 372 F. 2d at 1010.]
*****
* * * If plaintiff had sued under the Tort Claims Act, its action would undoubtedly have fallen afoul of Section 2680(a), the “discretionary function” exception. If the suit in this court had asserted, without relying directly on Section 9 as the basis of the claim, a wrongful refusal by the Maritime Commission to approve the transfer, the petition would clearly have to be dismissed as a demand, founded in tort, for business damages due to misconduct. See Part II, infra. We cannot evade these barriers by incorporating into Section 9 something which is not there, either in terms or by fair implication — a mandate for compensation. Rather, we must follow the admonition of the Supreme Court, almost a century ago, “to be cautious that we do not permit the decisions of this court to become authority for the righting, in the Court of Claims, of all wrongs done to individuals by the officers of the General Government, though they may have been committed while serving that government, and in the belief that it was for its interest. In such cases, where it is proper for the nation to furnish a remedy, Congress has wisely reserved the matter for its own determination. It certainly has not conferred it on the Court of Claims.” Gibbons v. United States, supra, 75 U.S. (8 Wall.) at 275-76. [178 Ct. Cl. at 611, 372 F. 2d at 1011.]
*255Again in Bulloch v. United States, 133 F. Supp. 885, 887 (D. Utah. 1955), the court stated the correct rule as follows:
The Tort Claims Act, including its exceptions, is too well known and has been too frequently construed _ to justify here a detailed review of its terms or legislative history, or a general survey of the cases interpreting it. See Annotation 1 A.L.R. 2d 222. The principle controlling in this case is that there can be no recovery against the Government on any claim based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved was abused. 28 U.S.C.A. § 2680(a); annotation 19 A.L.B. 2d 845.
Where the acts or omissions relied upon are those directly involving the exercise of discretion, the Courts have not hesitated to deny recovery, whether the discretion was regarded as properly, improperly or negligently exercised. Smart v. United States, 10 Cir., 1953, 207 F. 2d 841; Chournos v. United States, 10 Cir., 1951, 193 F. 2d 321, certiorari denied 343 U.S. 977, 72 S. Ct. 1074, 96 L. Ed. 1369; Coates v. United States, 8 Cir., 1950, 181 F. 2d 816, 19 A.L.R. 2d 840; North v. United States, D.C.D. Utah, Cent. D., 1950, 94 F. Supp. 824, 19 A.L.R. 2d 845. * * *
See also United States v. Morrell, 331 F. 2d 498 (10th Cir. 1964); and Morton v. United States, 228 F. 2d 431 (D.C. Cir. 1955).
The foregoing authorities show beyond any question that plaintiff’s claim sounds in tort and her case should be dismissed for lack of jurisdiction. There would be no purpose served by transferring her case to a district court, as Section 2680 (a) bars her claim there as well as here.
II
The Facts Show There Was No Racial Discrimination Against The Plaintiff In This Case
Badal discrimination means to discriminate against a member of one race of people or in favor of a member of a different race ¡because of race. That did not happen here. The plaintiff is a member of the Black race. She is a Negro. When she was denied a government job, her cousin, who was also a *256member of the Black race and a Negro, was appointed to the job. No other race of people was involved and no member of any other race was even considered, much less appointed to the job. If there was any discrimination, it was between two Negroes as individuals and without regard to race. All of this is shown in the letter from Mr. Dewberry, Regional Assistant Commissioner as follows:
We recommend she be advised there was no discrimination based on race, color, religion or national origin. In her letter of June 27, 1967, she points out that we employed her cousin to fill the vacancy for which she was considered. Obviously, the selection was made between two minority applicants — one with no prior service whose references were good, and one with prior service Whose last employer in BecMey would not reemploy her.
When the plaintiff filed her complaint of racial discrimination, it was assigned by the HEW to Mr. Walter Statham for an investigation. He made the investigation on May 29, 1967, by intervewing the plaintiff and Mr. Billings and others in Beckley, West Virginia. He reported that Mr. Billings had denied employment to the plaintiff because of an unfavorable report from a private hospital where she had last worked. But he found no fault with this, saying:
However, in doing so, he did not err under existing, applicable policies and regulations.
He further found:
* * * [T]he complainant, in seeking employment was not discriminated against, because of race, by the Social Security Administration and/or the district manager.
He stated in his recommendations:
In effect, I have found that SSA and/or the district manager committed no wrong against her.
It is interesting to note that the investigator also stated in his report:
However, she [the plaintiff] concedes that SSA and/or the district manager may not have discriminated against her directly * * *.
The investigator made his report to Mr. M. D. Dewberry, Regional Assistant Commissioner, who, in turn, made his *257recommendation to Mr. Louis Zawatzky, Deputy Assistant Commissioner for Employer Relations as follows:
We recommend slie be advised there was no discrimination based on race, color, religion or national origin.
Mr. Zawatzky then wrote the plaintiff his decision as follows:
After a careful evaluation of the investigative file, I have concluded that discrimination was not a factor in your non-selection for employment in the district office.
The plaintiff then requested a'hearing.
The HEW referred the case to an examiner. A hearing was duly held and plaintiff and other witnesses appeared and testified. The evidence at the hearing revealed that Mr. Billings was about to hire the plaintiff when he got an unfavorable report about her from one of her references, namely, the Beckley Appalachian Regional Hospital, which was a private institution where the plaintiff last worked. The report was that she was a “trouble maker of the first water.” Mr. Billings decided not to hire her and hired another Negro instead. The plaintiff testified in pertinent part as follows:
I feel that, based on the recommendation that he [Mr. Billings] received from the * * * Hospital, that it wasn’t thoroughly evaluated or thoroughly investigated because this is where the basis of the racial discrimination existed and at this point it was picked right up by his office and I was right back where I started really.
$ $ $ $ ‡
Q. Miss Bennett [Chambers], as I take it, a centra] part of your charge is that, in acting on references received from the hospital, Mr. Billings and the Social Security office acted m a racially discriminatory way by not looldng behind or into the events that led to the reference from the hospital. Is that correct ?
A. That is correct, sir.
Q. I believe it is your position that, if the references had been satisfactory, you would have been hired.
A. This is correct.
Q. So, that, without leading, aside from this point— the references, you would not make a charge of discrimination on the part of Mr. Billings or the Social Security office; that is, they were prepared to hire you.
A. This is my feeling, sir.
*258Q. So, whatever discrimination you believed to have happened was not with respect to your being considered for the job from the very beginning, but only with respect to Mr. Billings’ reaction to reference checks that he made.
A. Yes.
The plaintiff testified further :
So, actually, it was racial tension [at the hospital] and it was, in turn, transmitted to the Social Security office. "Whether Mr. Billings was aware of it, I have no knowledge of this, or what added to it in these regards.
*****
* * * I truthfully couldn’t say that Mr. Billings is prejudiced. I couldn’t say this. Its just a matter that he got hung up through an unfavorable reference where racial tension was involved.
Mr. Billings testified that it was a routine practice to get references from applicants and to check them out. If one of them was unfavorable, he would refuse employment. He said that at a previous time he got a similar report on a white girl applicant (that she was a trouble maker) and he refused to hire her. He testified further:
Q. Let me ask you this. If Miss Bennett [the plaintiff] had been white and you had gone to this depth that you did and received the same information that you did, would you or would you not have hired her ?
A. I would not have.
^ $ s]; $
Q. In other words, Miss Bennett’s race had nothing to do with this consideration.
A. None whatever.
Mr. Snyder, attorney for the Social Security office stated at the hearing:
* * * Miss Bennett’s charges amount to discrimination by a chain reaction. There have been no discriminatory practices charged to Mr. Billings or anyone in connection with the Social Security Administration in that they directly discriminated against Miss Bennett, but their discrimination allegedly came about when they accepted or acted on a reference which was given by someone who, according to Miss Bennett, is allegedly discriminatory.
*259Tbe only other witness was a Reverend Johnson. He testified Miss Bennett was qualified, but he didn’t know the facts of the case. He said further:
As President of the Raleigh County NAACP, I am chiefly concerned about discriminating practices, you know; if that’s the case, we are concerned, but, if not the case, then — That’s all I have to say.
After the hearing the testimony was typed and copies furnished to both parties for corrections. None were made. In due time, the examiner announced his decision, which was as follows:
It is my conclusion, based on the testimony at the hearing, that there is no evidence of racially discriminatory behavior or action on the part of the Becldey Social Security Office.
As can be seen from the evidence, the decision of the examiner was correct. As a matter of fact, the plaintiff did not charge the Social Security office or Mr. Billings with racial discrimination toward her, nor did she so testify. Her complaint was that there had been racial discrimination against her in the private hospital where she last worked. No one knew whether this was true or not and neither Mr. Billings or his office had any right to investigate it. Certainly, they were in no way responsible for what went on at the private hospital.
These facts show that the claim of the plaintiff was without substance, lacking in merit, and actually frivolous.
But there is more. A Mr. Samuel M. Hoston, Director of Equal Opportunity Staff in the Office of the Director of Equal Employment Opportunity of the Department of Health, Education and Welfare, overruled the decision of the examiner, and that of Mr. Zawatzky, and that of Mr. Dewberry, and that of Mr. Statham, the investigator, and handed down a decision in favor of the plaintiff as follows:
We find that the denial of equal opportunity for employment in the instant case was based substantially on the applicant's previous racial discrimination complamt and that such denial constituted a violation of Executive Order 11478 and Department regulations pursuant thereto. [Emphasis supplied.]
*260In rendering tbis decision, Mr. Hoston admittedly ignored the evidence at tbe hearing and based his decision on Mr. Statham’s investigative report, yet he ignored Mr. Statham’s findings and recommendation of non-discrimination toward the plaintiff. His decision that the plaintiff was racially discriminated against and that the hiring of another Negro did not obviate the charge of racial discrimination against the plaintiff, are pure conclusions of law, not based on any evidence, and are not binding on this court. His entire decision is based on an alleged “previous racial discrimination complaint” which he assumes was made by her while employed at the private hospital and before she applied for the job involved here. The HEW had nothing to do with that complaint, if one was filed, did not know about her filing it, if it was filed, and was in no way responsible for it, if it did exist. Such previous complaint, if there was one, is completely outside the record of this case, was never proven at the hearing or before the investigator, and no one knows the basis for it, what was contained in it, nor what happened to it, nor if it actually existed.
Furthermore, the above-quoted decision of Mr. Hoston is a pure conclusion of law, not based on any evidence and is not binding on this court.
Mr. Hoston also stated in his decision:
* * * [T]he SSA District Office in Beckley, West Virginia, failed to answer Mrs. Chambers’ charge that it operated in and was unduly influenced by an environment of racial discrimination.
This is a rather odd statement. If it was meant to be a requirement of the law, it was clearly wrong. The burden was on the plaintiff to prove that the PIEW had racially discriminated against her and not on the government. Furthermore, when Mr. Hoston followed this statement with—
Mrs. Chambers was indeed discriminated against, and we feel that the SSA personnel involved in this case were cavalier in their denial of the serious charge of racial discrimination,
it indicated that he was holding the government responsible for the racial attitude and morals of the entire Beckley Community. This cannot be the law. Otherwise, everytime a quali*261fied Negro applied for a government job in a community where the “racial environment” did not satisfy someone like Mr. Hoston and was refused employment, a job would have to be created for him. Suppose one hundred qualified Negroes applied for jobs at one time and were denied employment. According to Mr. Hoston’s formula and philosophy, the government would have to create 100 jobs for them. Imagine the chaos that would result if this “fuzzy thinking” and “far out” philosophy were applied to the thousands of government offices throughout the country.
Actually, Mr. Hoston’s conclusion that the office at Beckley. operated in an environment of racial discrimination was apparently based on the statement of one Mr. Payne, a Negro, who stated that the SSA and all other agencies of the government, and Mr. Billings and the hospital in Beckley all discriminated against Negroes. It developed that Mr. Payne was disgruntled because his wife had applied for a job two or three times at the SSA and had been turned down. The comment of Mr. Statham, the investigator, about Mr. Payne’s charges was as follows:
(Note: Mr. Payne’s general charges of discrimination against the district office are not, in my judgment, well-founded. In addition, while I was not in Beckley to investigate such charges, I did receive testimony strongly indicating a propensity on Mr. Payne’s part to make frivolous charges of racial discrimination against diverse and sundry institutions, individuals, and agencies.)
As indicated above, the plaintiff’s charges of racial discrimination and Mr. Hoston’s decision were based on alleged discrimination at the hospital. This was disputed by Reverend Mitchell, Pastor of the Ebenezer Baptist Church in Beckley and a member of the Advisory Council of the hospital. In commenting on Reverend Mitchell’s statement during the investigation, the investigator (Mr. Statham) said:
Rev. Mitchell said he feels that both the BARH [the hospital] and the district office have good records and images from a race relations standpoint. He cited this as the basic reason for lack of complaints of racial discrimination against the district office and hospital, where he serves as a member of the community’s advisory council.
*262Whether or not there was racial discrimination at the hospital was, therefore, a disputed question. We do know that the plaintiff never proved it, but Mr. Hoston assumed it existed and based his decision on it. Actually, it should not have even been considered in this proceeding, whether it occurred or not.
The record shows that there was another reason besides the adverse report from the hospital why Mr. Billings did not hire the plaintiff. He noticed certain personality traits in his talks with her that caused him to doubt that she could get along with other workers. This is shown in Mr. Dewberry’s letter as follows:
Also, the manager had some other reservations about Miss Bennett’s [plaintiff] attitude from several contacts with her that he considered of minor importance until the former employer questioned her ability to get along with co-workers.
Of course, Mr. Billings was exercising proper discretion as an employing officer in making these observations. The report from the hospital merely served to confirm what he had already observed. Mr. Hoston paid no attention to these facts.
Actually, Mr. Hoston ignored the facts in the case, all of which showed no racial discrimination at the SSA office against the plaintiff, and went outside the record to an alleged prior racial discrimination complaint by the plaintiff in a private industry in order to find a way to rule for the plaintiff. When all of these factors are considered, it causes one to wonder if Mr. Hoston indulged in bias or prejudice in favor of the plaintiff instead of Mr. Billings being guilty of prejudice against her.
The majority opinion makes much of the fact that the attorney for the government at oral argument of this case admitted that the HEW had discriminated against the plaintiff because of race and that but for such discrimination she would have been employed. We are not bound by any such admission because it is not supported by the facts and is contrary to the evidence. We are only puzzled why he made such an admission under the circumstances. In H. B. Zachry Co. v. United States, 170 Ct. Cl. 115, 344 F. 2d 352 (1965), we held that a formal stipulation of the parties that was con*263trary to the evidence was not binding on the court.1 The government attorney’s admission here does not rise to the level of a stipulation, and we are not bound by it. Furthermore, his admission was a conclusion and a speculation on his part, which does not bind the court.
There is still more. The plaintiff was not through. She appealed to the Board of Appeals and Review of the Civil Service Commission from theHoston decision. The Board did not go into ithe facts further than to “rubber stamp” the Hoston decision and order a job created for the plaintiff, but denied her request for retroactive appointment to the time of her original application for a job and the salary incident thereto.
Being still dissatisfied, the plaintiff filed this suit for $18,000 damages.
Ill
Oonclmion
Being firmly convinced that we do not have jurisdiction of plaintiff’s case and that there was no racial discrimination against her by the SSA office or its manager in denying her government employment, I would deny plaintiff’s motion for summary judgment and grant defendant’s motion for summary judgment and dismiss the plaintiff’s suit.
ColliNS, Judge, joins in the foregoing dissenting opinion of Judge Skelton.
United States v. Maurice, 2 Brockenbrough, 103; Jackson v. Healy, 20 Johnson, 493; Vaughn v. English, 8 California, 39; Sanford v. Boyd, 2 Crunch’s Circuit Court, 78; Ex parte Smith, Id. 693. [Id. at 393.]
See also Federal Export Corp. v. United States, 88 Ct. Cl. 60, 25 F. Supp. 109 (1938), cert. denied, 308 U.S. 590 (1939).