dissenting:
I agree ‘with the able dissenting opinions of Chief Judge Cowen and Judge Bennett. However, I would like to add the following:
This court does not have jurisdiction of this case. The decision of the majority is contrary to law and should not be allowed to stand. All of this is conclusively shown by the following authorities:
1. The decision of the majority is in direct conflict with the decisions of three circuit courts of appeals which hold that Executive orders do not authorize a suit by an employee of the United States against the Government if they are violated, and do not confer jurisdiction on the courts to entertain such suits. See Manhattan-Bronx Postal Union v. Gronouski, 350 F. 2d 451 (D.C. Cir. 1965), cert. denied, 382 U.S. 978 (1966); Gnotta v. United States, 415 F. 2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934 (1970); and Ogle-tree v. McNamara, 449 F. 2d 93 (6th Cir. 1971). See also Congress of Racial Equality v. Commissioner, Social Sec. Admin., 270 F. Supp. 537 (D.Md. 1967). At oral argument, plaintiff’s counsel stated that plaintiff’s suit was based exclusively on the Executive orders described in his petition.
*2242. Tbe majority opinion is in direct conflict with tbe decisions of tbe district court and tbe Sixth Circuit Court of Appeals in tbe case of Ogletree v. McNamara, supra. Tbe Negro plaintiffs in that case brought a suit under Executive Order 11246, which is tbe same Executive order that is involved in the instant case, and the Air Force and Civil Service Regulations adopted pursuant to such order, alleging racial discrimination against Negroes in promotion practices. These are the same claims being made in our case. The district court in that case granted the Government’s motion for summary judgment saying:
£* * * The requested relief is relief with respect to which the United States has not consented to be sued.’ [449 F. 2d at 96.]
The Sixth Circuit Court of Appeals affirmed the district court’s decision holding:
The District Judge’s rationale for entering summary judgment was that basically the action was against the United States in its sovereign capacity and that the United States had not consented to be sued and was immune to the suit. He relied primarily upon Gnotta v. United States, 415 F. 2d 1271 (8th Cir. 1969), cert. denied, 897 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970), and Congress of Racial Equality v. Commissioner, Social Security Administration, 270 F. Supp. 537 (D.C.Md. 1967).
* * * [W]e believe the District Judge was correct in terming this suit an action against the United States in its sovereign capacity as to which it has not consented to be sued. See Gnotta v. United States, 415 F. 2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970). [449 F. 2d at 95-96, 99.]
It is clear that the court in Ogletree decided the very issue before us in the instant case. The majority opinion conflicts with that decision.
3. The majority opinion is in direct conflict with a long line of decisions of the Supreme Court and circuit courts of appeals holding that only 'Congress can give consent for the United States to be sued, and it must be done by legislation that specifically waives immunity from suit; and that such *225consent to be sued must be specific and cannot be implied; and that such, legislation must specify which, court or courts have jurisdiction of such suits. None of this has been done in this case. See United States v. Shaw, 309 U.S. 495 (1940); United States v. U. S. Fidelity & Guaranty Co., 309 U.S. 506 (1940); United States v. Sherwood, 312 U.S. 584 (1941); and Luckenbach S.S. Co. v. United States, 272 U.S. 533, 536 (1926).
4. The majority opinion is in direct conflict with at least four decisions of the Supreme Court that no officer of the Government can by his action waive the sovereign immunity of the Government from suit nor give its consent to be sued. This, of course, includes the President and all Executive Agencies. See United States v. Shaw, supra; United States v. U.S. Fidelity & Guaranty Co., supra; Munro v. United States, 303 U.S. 36 (1938); Finn v. United States, 123 U.S. 227, 233 (1887). See also, Jones v. Tower Production Co., 120 F.2d 779, 782 (10th Cir. 1941).
5. The majority opinion is in direct conflict with a long line of decisions of the Supreme 'Court and of this court that hold unequivocally that the appointment and promotion of a Government employee is an administrative function which must be exercised in the discretion of the head of the agency involved, and the courts have neither the authority nor the power to exercise such discretionary functions. We have held many times that this court is not in the promotion business and cannot promote any Government employee. See Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840); United States v. McLean, 95 U.S. 750 (1877); Keim v. United States, 177 U.S. 290 (1900); United States ex rel. Dunlaf v. Black, 128 U.S. 40 (1888); United States ex rel. Boynton v. Blaine, 139 U.S. 306 (1891); Donnelly v. United States, 133 Ct. Cl. 120, 134 F. Supp. 635 (1955) ; and Tierney v. United States, 168 Ct. Cl. 77 (1964); and Article 2, Section 2, U.S. Constitution.
6. The majority opinion is in direct conflict with many decisions of this court and of the Supreme Court that hold that a Government employee is entitled only to the salary of the position or grade to which he has been appointed. The plaintiff had not been appointed to the positions or grades *226during the periods involved on which he claims salary in this case. See United States v. McLean, supra, Borak v. United States, 110 Ct. Cl. 236, 78 F. Supp. 123, cert. denied, 335 U.S. 821 (1948); Price v. United States, 112 Ct. Cl. 198, 200, 80 F. Supp. 542, 543 (1948); Ganse v. United States, 180 Ct. Cl. 183, 186, 376 F. 2d 900, 902 (1967); Dvorkin v. United States, 101 Ct. Cl. 296, cert. denied, 323 U.S. 730 (1944); Donnelly v. United States, supra; and Tierney v. United States, supra.
7. The majority opinion is in direct conflict with United States v. King, 395 U.S. 1 (1969), in which case the Supreme Court held that the Court of Claims has no power nor authority to grant equitable relief and cannot render a declaratory judgment, and its jurisdiction is limited to cases where the plaintiff sues for money actually and presently due him from the United States. In the present case the plaintiff is not suing for money actually and presently due him because he was not appointed to the positions and grades for which he claims salaries for the indicated periods. The majority opinion is in the nature of a declaratory judgment declaring the rights of the plaintiff, which the King case holds this court cannot issue. The King case forecloses any jurisdiction of this case by this court. The remand statute (Pub. L. 92-415, 86 Stat. 652 (1972)) on which the majority relies, is of no help to its decision, because by the terms of the statute, such a remand can only be made in a case within the jurisdiction of the court and that is not the case here.
8. The majority opinion is in direct conflict with the regulations of the Civil Service Commission and Board of Appeals and Review (BAR) applicable to this case which are set forth in 5 C.F.R. § 713.233 that have the force and effect of law, which provide that an employee may appeal to the Board of Appeals and Review from the action of an agency, but not more than 15 calendar days after receipt of notice of the action. In this case, the plaintiff received notice of the adverse action of the agency on October 2, 1970. He telephoned the Board of Appeals and Review on October 19 and acknowledged that the 15-day period during which he could appeal, as stated in the notice, had expired on October 17, but that he still wished to appeal. Even accept*227ing the majority opinion’s view that he could file an appeal as late as Monday, October 19, because of the preceding Saturday and Sunday, the plaintiff still did not file a timely appeal as is forcefully pointed out in Judge Bennett’s dissenting opinion. The majority says that the telephone call the plaintiff made on October 19 was sufficient as an appeal because he was not told by the defendant that he had to file a written appeal. As Judge Bennett points out, this is contrary to the record. The defendant’s decision letter of September 22, 1970, told the plaintiff that if he wished to appeal he could submit his letter of appeal to the Board of Appeals and Review within 15 days from the receipt of the decision letter, with a copy of said letter to the EEO officer at Aberdeen. This clearly advised the plaintiff that he had to file his appeal in writing. Thereafter, the plaintiff wrote a letter dated October 20, which was already one day late even under the majority view, hut he did not file it with the BAR until October 22, which was three days late. Even if it can be assumed, as the majority does, that he could file his appeal as late as October 19, the telephone call simply did not meet the requirements of the regulation. In International Tel. & Tel. v. United States, 197 Ct. Cl. 11, 453 F. 2d 1283 (1972), we held that a notice by telephone to renew a Government contract for the benefit of the Government was insufficient when the notice was required to be in writing. The rule against the Government in that case should be applied in favor of the Government in this case because the telephone notice was insufficient in both cases. The above regulation authorizes a waiver by the Board of Appeals and Review in its discretion of the time limit for the appeal if the employee can show he was not notified of the prescribed time limit and was not otherwise aware of it, or that circumstances beyond his control prevented him from filing an appeal within the prescribed time limit. The plaintiff did not even try to come within these exceptions. The Board rejected his appeal as untimely. He did not ask the Board to waive the time limit and did not and does not at the present time contend that the Board abused its discretion by not extending the time limit for his appeal.
*228Plaintiff says it would have been futile for him to appeal. Such, a contention goes counter to the well-established rule that is presumed that officers of the Government will discharge their duties in a legal 'and proper maimer. See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14 (1926); United States ex rel. Harris v. Ragen, 177F. 2d 303, 305 (7th Cir. 1949); Holman v. United States, 181 Ct. Cl. 1, 9, 383 F. 2d 411, 416 (1967); Kozak v. United States, 198 Ct. Cl. 31, 35, 458 F. 2d 39, 40 (1972). We have held that to overcome this presumption “well-nigh irrefragable proof is required.” Knotts v. United States, 128 Ct. Cl. 489, 492, 121 F. Supp. 630, 631 (1954).
How could the plaintiff or this court know an appeal would have been futile? If the plaintiff can get by with this kind of argument, every employee who fails to timely appeal could say the same thing. Oases of this kind cannot be decided according to the subjective opinions of the employee. Such a system would render the regulations meaningless. It is plain that he did not comply with the regulations or the notice that he received, and thus failed to exhaust his administrative remedies. Plaintiff’s argument that it would have been futile to appeal to the Board of Review and Appeals within the required 15 calendar day period is clearly an afterthought idea that was obviously conceived after the decisions in Chambers v. United States, 196 Ct. Cl. 186, 451 F. 2d 1045 (1971), and Allison v. United States, 196 Ct. Cl. 263, 451 F. 2d 1035 (1971), were handed down on October 15, 1971, a year after the time for his appeal had expired. This is shown by the fact that he did actually file an appeal with the BAR, on October 22,1970, five days late, and pressed it to a decision. Why did he file such an appeal if he thought it was futile to do so ? This argument does not hold water. Plaintiff obviously did not think the appeal was futile, otherwise he would not have filed it. It is suprising that the majority falls for this argument by plaintiff.
The majority opinion indicates that “it is futile to press before Executive Agencies a claim the Comptroller General has rejected.” The majority misreads the record, because it shows that the plaintiff never presented his claim to the General Accounting Office until November 3, 1971, which *229was over a year after the time for his timely appeal to the BAN had expired, and which was shortly after the Chambers and Allison oases were decided. His claim was not rejected by the GAO until June 22, 1972. So, it is crystal clear that the rejection of his claim by the GAO on June 22,1972, could not have indicated to plaintiff prior to October 17,1970, the last day for his timely appeal to the BAR, that such an appeal was futile. The majority errs in so holding.
9. The majority opinion is in direct conflict with the decisions of the Supreme Court and of this and other courts that if an employee does not appeal from an adverse personnel ruling within the time fixed by law, he has not exhausted his administrative remedies and cannot recover. Adler v. United States, 134 Ct. Cl. 200, 146 F. Supp. 956 (1956), cert. denied, 352 U.S. 894; McDougall v. United States, 138 Ct. Cl. 90, 149 F. Supp. 651 (1957); Henry v. United States, 139 Ct. Cl. 362, 153 F. Supp. 285 (1957); Monday v. United States, 146 Ct. Cl. 6 (1959), cert. denied, 361 U.S. 965 (1960); and Gernand v. United States, 174 Ct. Cl. 936 (1966). That is the situation here, and by reason thereof, this court does not have jurisdiction of plaintiff’s case.
10. The citation of and reliance on the cases of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Taylor v. Safeway Stores, Inc., Dist. Ct. Colo., No. C-3051, decided September 18, 1973, by the majority are erroneous. Those cases involve private employers and their employees. The cases arose under the 1964 Civil Rights Act, 78 Stat. 241, 42 U.S.C. § 2000e (1964), which expressly provides:
(b) The term “employer” * * * does not include (1) the United States, * * *.
Consequently, any standards or tests laid down by the courts in those cases apply only to cases involving private employers and their employees, and have no application whatever to cases such as the instant case where the suit is against the Federal Government. It would appear that the application by the majority of the standards and tests on racial discrimination laid down in those cases for private employment amounts to judicial legislation by the majority in direct conflict with the 1964 Civil Rights Act.
*23011. The direction by the majority to the Civil Service Commission to seek guidance from the Equal Employment Act of 1972, Pub. L. 92-261, results in additional judicial legislation on the part of the majority. This is true for several reasons. In the first place, this law does not apply to the instant case because it was not passed until March 24, 1972, whereas the time for plaintiff’s timely appeal expired October 17, 1970. All of the events in our case had taken place long before the Act was enacted.
In the second place, the Act expressly provides that the Act:
Sec. 14 * * *
[SJhall be applicable with respect to charges pending with the Commission on the date of the enactment of this Act and all charges filed thereafter.
The plaintiff’s claim was not pending before the Commission when the Act was enacted, and, consequently, has no application to the instant case. Therefore, the majority commits error when it states that the Act:
* * * [Ejxpressly confers on the Commission power to grant back pay in cases such as this. * * *
In the third place, the Act grants exclusive jurisdiction of cases of this kind to the Federal District Courts. The Act provides:
■§ 2000e-5(f) Each United States district court * * * shall have jurisdiction of actions brought under this subchapter. * * *
The U.S. Court of Claims is not mentioned in the Act. It is clear we have no jurisdiction of such cases. This fact adds emphasis to the above statement that the majority erred when it stated that the Act “expressly confers on the Commission power to grant back pay in cases such as this.” Obviously, the majority’s statement was meant to apply to ¿Ms case, as it is the only case being considered.
In view of the foregoing, there is no legal way to apply the 1972 Act to this case, and the majority erred in attempting to do so. .
*231 Conclusion
The main issue and actually the only issue in this case is whether or not this court has jurisdiction of the case. The question of racial discrimination and the prejudicial, inflammatory, and ©motional contentions made in connection therewith by both the plaintiff and the majority are beside the point and need not be reached or considered.
The foregoing authorities, for the most part, have been thoroughly briefed, and discussed individually and in detail in my dissenting opinions in the cases of Chambers v. United States, supra, and Allison v. United States, supra, and for the sake of brevity have not been fully discussed here. I refer to such dissenting opinions in those cases, and, where applicable, make them a part of this dissenting opinion by reference. The majority opinions in those cases were clearly erroneous for all the reasons stated in my dissenting opinions. The Chambers case was especially a gross miscarriage of justice. Notwithstanding the erroneous decisions in those cases, the majority in the instant case cites them in “bootstrap” fashion to solve every jurisdictional predicament they find themselves in, as if those cases were “cure-alls” that take care of all jurisdictional problems.in this area of the law without further citation of authority. This procedure merely compounds the errors previously made in Chambers and Allison.
It is significant, but not surprising, that the GAO holds the majority decisions in Chambers and Allison in such low esteem that it refuses to comply with them. No doubt that agency will take the same view of the majority opinion in the instant case, because so many well-recognized and long-established principles of law have either been ignored or contradicted by the opinion. That impasse will obviously continue to exist until the Supreme Court gives its attention to the many errors of law made by the majority in their opinions in Chambers, Allison and the instant case.
The overwhelming array of authorities set forth above compels a decision in this case that defendant’s motion for summary judgment be granted and plaintiff’s petition dismissed. I would rule accordingly.