dissenting:
I dissent from the opinion of the majority because I believe that, in its rightful concern to correct what it believes to be racial discrimination, it has wrongfully construed the law. However much we may sympathize with any who have suffered or believe they have suffered discrimination, there is a definite limit to what we can do about it. In the instant case we have no jurisdiction.
The plaintiff in this case relies, in his petition, upon all the public laws, Executive orders and regulations which in recent years have been promulgated to eliminate racial discrimination from our society, particularly in public employment. Most of these measures are not in point in this particular case except as they make clear the intent of the President and the Congress, since about 1955, to insure equal employment opportunities for federal employees by prohibiting discrimination in employment and promotions on account of race, color, religion, or national origin. At the oral argument in this case, plaintiff’s able counsel narrowed the authorities, upon which he principally relies, to our general jurisdictional statute, 28 U.S.C. § 1491 [the so-called Tucker Act], Executive Order 11246 [issued by President Johnson on September 24, 1965, 3 C.F.E. 567 (1966), 42 U.S.C. § 2000e note], Executive Order No. 11478 [issued by President Nixon on August 8, 1969, 3 C.F.R. 446 (1970), 42 U.8.C. § 2000e note], and upon the decisions of this court 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). Plaintiff’s reliance upon these authorities, and others he cites, is misplaced as we shall see. The ma-j ority’s reliance likewise misses the mark for the same reasons. The petition claims approximately $133,000 in back pay, because of alleged discrimination which prevented plaintiff’s timely promotion between 1960-72, interest, legal fees, payments into the retirement fund, and future losses of pay projected to the year 1982 by reason of wrongful grade classification.
Plaintiff, a Negro, was employed as a GS-11, step 7, electronic engineer by the Federal Government at the Human Engineering Laboratory (HEL) at the Aberdeen Proving *233Ground. In 1967 he filed an agency complaint alleging that he had been denied promotion to grade 12 because of his race. Elaborate and extensive administrative procedures followed through November 3, 1971, and the administrative record consists of several thousand pages. Suit followed here on June 19,1972.
The majority opinion has recited the history of the investigations of plaintiff’s complaint and little more need be added. In summary, the first Equal Employment Opportunity officer found plaintiff’s complaint “not valid.” He recommended, however, that when plaintiff demonstrated willingness to work as a team member, he be considered for promotion, based on his performance. Thereafter, a hearing officer concluded, in a 307-page statement of findings and recommendations, that plaintiff’s failure to be promoted “was not the result of racial discrimination at HEL but rather because Mr. Pettit did not merit a promotion. This finding is based upon the manner in which he performed his work assignments and his lack of cooperation and stability.” Findings made state that Mr. Pettit “stirred up discord and controversy throughout his employment at HEL * * *. Mr. Pettit’s record at HEL is one of cycles of reassignment, a brief period of satisfactory performance then bickering, strife and discord and then another reassignment followed by the same cycle all over again.” Plaintiff interpreted his reassignments within HEL as management’s efforts to avoid giving him a deserved promotion. The findings are that “[ajctually, these reassignments were made in an effort to help him.” It was found that plaintiff refused to give due consideration to the professional opinions of colleagues and supervisors, was guilty of absenteeism, and had difficulty in writing technical reports. It was further found, however, that plaintiff had suffered certain improper harassment, although he in turn had been guilty of harassment of superiors. It was recommended that he be promoted “as soon as his performance merits.” A third review by another hearing officer evaluated the administrative record and confirmed the prior findings that plaintiff did not merit promotion at the time but also accepted the prior recommendations.
*234There followed, on June 23, 1970, a Modification of the Findings of Fact and Recommendations (hereafter referred to as the modification) by Headquarters, United States Army Materiel Command (AMC), upon which 'plaintiff now places great reliance. The recommended action at this level was that “[i]n view of the discriminatory actions to which Mr. Pettit has been subjected by his supervisors, he should be given preferential consideration for promotion to the next GS-12 vacancy within Human Engineering Laboratories provided he is among the best qualified candidates referred.” It was also recommended that supervisors who displayed discrimination against Negro employees should be disciplined and their work monitored.
The recommendation for preferential treatment in promotion, if found qualified, was unacceptable to plaintiff who demanded an immediate, unconditional promotion to GS-12, retroactive to 1960, immediate opportunity to compete for GS-13, and a restitution of expenses, attorney fees, and a cease-and-desist order against HEL. This was denied by the EEO officer on July 23, 1970. Plaintiff, however, was promoted to GS-12 effective August 10, 1970, pursuant to a recommendation by the Aviation Branch chief on June 10, 1970. Note that this recommendation was before the recommendation in the modification and, therefore, not influenced thereby. This promotion was deemed by defendant to be compliance with the requirement for “preferential consideration” of plaintiff and “the maximum corrective action” that was authorized as a remedy for plaintiff by law or regulation. The GAO held that a retroactive promotion was not authorized, refusing to follow Chambers and Allison, sufra. Plaintiff appealed to the 'Civil Service Commission without success. The appeal to CSC was denied 'because of the GAO ruling and because it was not filed within the 15-day time limit for appeal. Plaintiff had been amply warned of the time factor, Multiple appeals for administrative reconsideration by GAO, CSC and the Army were denied.
Plaintiff concludes from the modification of the findings that it is clear he would have been promoted “but for” said discrimination and jumps from that conclusion to reliance upon Allison, supra, for a back-pay award, future pay, and *235projected promotions. This is the view accepted by the majority opinion, which I must reject for several reasons which follow.
'In the first place, the modification nowhere states that plaintiff would have been promoted “but for” discrimination. This is a conclusion unwarranted by the administrative record, is nowhere stated by the findings or conclusions therein, and is unsupported, therefore, by substantial evidence. To be sure, the modification stated that other Negro employees at HEL left their jobs “due in fart, to the evidence of absence of further promotion opportunity.” [Emphasis added.] We do not know what the other “parts” were or whether, like plaintiff, others also bore the burden of findings of lack of technical skill and instability. Mr. Pettit did not leave. It is easy to believe, from reading the modification, that HEL was truly deficient in affording equal opportunity for advancement of employees. This is not to say they all would have been promoted “but for” such discrimination, which is plaintiff’s position. Affirmative findings were made that plaintiff was not promoted for other reasons. 'But for that, it would be clear his troubles were from discrimination alone. However, he stuck it out and was promoted before he had completed his administrative pursuit of relief and, since November 17, 1972, has been a GS-13. It is assuming too much to say that inevitably he would have been promoted sooner but for discrimination when his record was otherwise deficient, as found by all the reviewers, and not denied by the modification of their findings which did not recommend immediate promotion. What is important to note 'here is that discrimination was found and that administrative steps were taken to correct it, including preferential treatment for plaintiff’s advancement when and if he qualified for it, as he ultimately did. Plaintiff does not contend that the modification speaks otherwise. His conclusion is that “taken together and in context” it proves that plaintiff, “but for” racial discrimination, would have been more rapidly promoted over the years. From this supposition, it is concluded by plaintiff, and in the majority opinion, that the recommendations for preferential treatment are an insufficient response to the Executive orders *236relied upon. Tbe importance of this strained interpretation of the so-called modification is that it is essential to plaintiff’s case because, unless he can show that inevitably he would have been promoted at some earlier point in time, “but for” discrimination, and irrespective of the findings that he did not merit it, because of “the manner in which he performed his work assignments and his lack of cooperation and stability,” he will be unable to find shelter under the decision in Allison.
The Allison and Chambers decisions of this court are unprecedented in federal jurisprudence, are not followed by any other court, are unacceptable to the Comptroller General, were the product of a badly divided court, and they fashion totally new remedies by using the aforesaid Executive orders as their foundation. They are, furthermore, in conflict with the decisions of at least two United States Circuit Courts of Appeals which have held that these Executive orders do not create any judicial remedy or expand the jurisdiction of the courts. Ogletree v. McNamara, 449 F. 2d 93 (6th Cir. 1971) ; Gnotta v. United States, 415 F. 2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934 (1970). See also Congress of Racial Equality v. Commissioner, 270 F. Supp. 537 (D.Md. 1967); generally, see Manhattan-Bronx Postal Union v. Gronouski, 350 F. 2d 451 (D.C. Cir. 1965), cert, denied, 382 U.S. 978 (1966). Plaintiff would further expand the Allison decision to encompass not only an award of back pay but future pay and projected promotions as well. Plaintiff also would have the court take yet another step beyond Allison and directly award the relief requested instead of remanding it to the agency to make findings that would enable the court to grant relief if the agency did not do so. The court has opted for the remand at this stage of the proceedings.
This writer was not a member of the court when it decided the Chambers and Allison cases. Because I feel strongly that what was decided there should not be extended further, as the court does here, I deem it proper to make a full statement of my reasons. The defense that in this case the court has no jurisdiction is summarily rejected by the court as not meriting further discussion in view of its decisions in *237Chambers and Allison. A defense of jurisdiction, however, is fundamental and serious, and I will discuss it in the 'hope that wiser and higher authority will redirect the court to the proper path of law.
Chambers was a case in which the court, in reliance upon Executive Order No. 11246 and its successor, Executive Order No. 11478, supra, awarded back pay to a woman for a job she never held. In that case the defendant stipulated that discrimination was the sole cause of failure to 'hire. The majority in that case, accepting the stipulation that “but for” the discrimination she would have been employed, concluded that this eliminated the bar to relief which would have existed if the court had been required to exercise the discretion of an appointing official. United States v. McLean, 95 U.S. 750 (1877). It then said that the sole question left for decision was whether in the circumstances the pertinent Executive order provided a legal basis for judicial award of back pay. Answering that question in the affirmative, the court specifically rejected the decision of Judge Blaekmun (now Justice Blaekmun) in Gnotta v. United States, supra at 1278, quoting from the District Court opinion, wherein it was held that:
* * * “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, in 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 authorize civil actions for damages under any of the laws (including the Executive orders and regulations) applicable to facts pleaded by plaintiff in this case.”
The Eighth Circuit court was of the opinion, also, that the Tucker Act ¡was not broad enough to confer jurisdiction in such a case. The majority in Chambers said that in promulgating the Executive orders, which did not mention the courts as a forum in which to force compliance with the policies there set forth, the President was aware of their existing jurisdiction and the case history pursuant to which the Court of Claims had granted judgments for violation of rights *238given under Executive orders and departmental regulations in cases of illegal discharge of Government employees, citing Simon v. United States, 113 Ct. Cl. 182 (1949). Simon, however, was not a case comparable to Chambers. Simon involved an employee who had lost his job because defendant was in violation of valid Civil Service regulations fully authorized by law. None of those considerations obtain here. But, the majority in Chambers boldly went even further and concluded that “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.” 196 Ct. Cl. at 199, 451 F. 2d at 1053. The Administrative Procedure Act was then cited as a general statute creating judicial remedies for legal wrongs because of agency action. From this, it was reasoned that the Executive order “simply added another class of persons entitled to seek relief thereunder, namely, applicants of minority races.” The majority expressly overruled its precedent in Hyman v. United States, 138 Ct. Cl. 836, 157 F. Supp. 164 (1957), which had held no back pay could be awarded for a job never held. Where Chambers went wrong, and what makes it an unacceptable precedent, is that no legal wrong was committed which was redressable in a court of law. The statute, 5 U.S.C. § 7151 [from the Civil Eights Act of 1964, § 701(b), 78 Stat. 254], was cited by the court as the statutory authority constituting the foundation for the Executive orders and its decision predicated thereon. But, that was wrong because the very same section 701(b) [42 U.S.C. § 2000e(b)], of the same Act specifically excluded the United States from its definition of an “employer” covered by the terms of the Act. Thus, though Congress stated a federal policy against discrimination in employment, a policy implemented administratively by Executive orders, it did not create and was under no obligation to provide a remedy through the courts. Lynch v. United States, 292 U.S. 571, 582 (1934).
Chief Judge Cowen and Judge Skelton dissented in Chambers. The Chief Judge concluded that the stipulation and the administrative decision were unsupported by any substantial evidence. Judge Skelton, who was joined by Judge *239Collins, collected the authorities in a 46-page dissent. It would serve no useful purpose to extend this statement by a repetition of the scores of authorities set forth by Judge Skelton and which I adopt by reference; suffice it to say that his citations were in point. This is especially true of his reliance upon United States v. King, 395 U.S. 1 (1969), which held that the Court of Claims could not be inferred as having jurisdiction to grant declaratory judgments. It is a court with jurisdiction limited to what Congress has specifically granted by statute. Even earlier, the Supreme Court said in United States v. Shaw, 309 U.S. 495, 500 (1940):
* * * we may lay the postulate that without specific statutory consent, no suit may be brought against the United States. [Emphasis added.]
Also, Gnotta, supra, which held that Executive Order No. 11246 (later Executive Order No. 11478) had no provision therein purporting to confer any right on an employee of the United States to institute a civil action for damages against the Government. "Whatever administrative relief is provided by such orders, and regulations made pursuant thereto, is the limit of relief thereunder. Further, Gnotta held that the Administrative Procedure Act is not an implied waiver of governmental immunity from suit. As Judge Skelton stated in his dissent in Chambers:
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 *240more. If it was violated, the plaintiff has no right to sue the government in this court by reason thereof. [196 Ct. Cl. at 248,451F. 2d at 1081-82.]-
Chambers provided the theoretical -basis for Allison, supra, decided by this court on the same day. In Allison, certain Negro NIH employees brought a suit for back pay under Executive Order No. 11246 (now E.O. 11418), alleging that they had been denied promotion due to racial discrimination. Discrimination was established administratively but the Comptroller General ruled that there was no authority in law “ ‘.to award back -pay to employees for the periods that promotions are improperly delayed as the result of discrimination or for some other unjustified or unwarranted reason.’ ” 196 Ct. Cl. at 261, 451 F. 2d at 1037. Suit followed. Plaintiffs claimed that they would have been promoted “but for” the discrimination. This is not what the administrative decision found. What it did say was that there was a “ ‘pattern of racial discrimination’ existing ‘over a period of several years’ in the section in which plaintiffs are employed.” 196 Ct. Cl. at 268, 451 F. 2d at 1037. This was believed by the administrators to be insufficient to effect mass promotions on the basis of seniority alone without regard to merit and work qualifications, and that to do so would be a perversion of the merit system.
The court said that Allison was not entirely like Chambers where it had held the stipulation of discrimination provided that plaintiff would have been appointed “but for” the discrimination. The Allison majority, however, reiterated its holding in Chambers that Executive Order No. 11478 provided a legal basis for awarding back pay if plaintiffs could meet the “but for” test and if something else, such as lack of qualifications or appropriations, -had not prevented the promotions. The court also ruled that the administrative findings revealed that some of the plaintiffs would have been so promoted but for “discrimination in gross.” 196 Ct. Cl. at 269, 451 F. 2d -at 1038. The court denied plaintiffs’ motion for summary judgment without prejudice and defendant’s cross-motion, to allow plaintiffs to apply for administrative findings “which shall show, person by person, whether such person would have been promoted, when, and to what grade *241or grades, in light of such person’s qualifications, the qualifications of competitors, the existence of vacancies, the availability of funds, and all other factors that would have properly influenced the exercise of discretion in the making of an actual promotion at the time a promotion was due.” 196 Ct. Cl. at 271, 451 F. 2d at 1039.
Judge Skelton, joined by Judge Collins, again dissenting, repeated his Chambers rationale and the authorities there cited. The court’s action in Allison was characterized as an unwarranted and unauthorized interference with the discretionary function of an agency which had already indicated that promotions merited would be granted and that steps to encourage such promotions would be taken. The dissent pointed out that what the court really proposed to do was to appoint plaintiffs to jobs retroactively so that they could receive the salaries thereof, but that the court was without the equitable power to promote or appoint. Congress, said Judge Skelton, had not waived the immunity of the sovereign in these matters nor had it turned them over to the Judiciary for policing. Sovereign immunity cannot be waived by implication but “must be unequivocably expressed.” United States v. King, 395 U.S. at 4.
The remand in Allison required the agency to speculate what would have been done regarding possible promotions over the span of the 5 previous years. Thus, the sword of the Allison court was raised over the agency’s head. If the agency fails to do what has been ordered, or if the agency makes findings favorable to plaintiffs, the court, as “promotion watchdog,” would “proceed to appoint (promote) them to the jobs and award them salaries and make the appointments retroactive.” (Skelton, J., dissent, 196 Ct. Cl. at 273,451F. 2d at 1040.) This constitutes the assumption of a formidable responsibility. As Professor Davis has stated:
* * * Do we want courts inquiring into personnel management — salary increases, sick leave, office hours, allocation of parking spaces in the basement of the agency’s building ? * * *. [4 K. Davis, AdmiNistrative Law Tkeatise § 28.16, at 82 (1958).]
In Ogletree v. McNamara, 449 F. 2d 93 (6th Cir. 1971), the Sixth Circuit relied on Cnotta to reach a comparable result. *242The plaintiffs in Ogletree also relied on Executive Order No. 11246. They claimed racial discrimination. The district court held that their effort to enjoin operation of the Civil Service antidiscrimination regulations and the Air Force promotion system constituted an action against the United States as to which it had not consented to be sued by waiver of its immunity. The circuit court affirmed the decision and dismissed the complaint without prejudice to plaintiffs’ right to demonstrate that they had exhausted their administrative remedies or to show that such exhaustion would have been futile. Plaintiffs had not introduced such evidence in their original action in the district court. So, in addition to the lack of jurisdiction of the court over the subject matter by reason of Executive orders, plaintiffs had failed, as they fail here, to show that they had fully explored their administrative remedies. Our plaintiff says that it would have been an idle gesture to do so, but we have no way to be sure of that fact. We note with particular interest plaintiff’s success in obtaining administrative consideration of his appeal right up to his belated appeal to the Board of Appeals and Review of the Civil Service Commission. The court makes much of the fact that plaintiff wanted to wait to hear the results of his appeal of the recommendations in the modification’s findings and did not hear until the last minute on a Friday wha't they were and thus was precluded by the intervention of a weekend from taking action sooner. The fifteenth and final day for appeal fell on Saturday, October 17, 1970. The court deems his telephone call on the following Monday as a sufficient appeal and attempt to exhaust administrative remedies. The court says that plaintiff was not told that his notice of appeal would have to be in writing. The court is in error. Plaintiff was advised in defendant’s letter of September 22, 1970, to which the court otherwise alludes, that if plaintiff was dissatisfied with the disposition of his case that he could request further review and decision and was directed to submit his letter of appeal to the CSC Board of Appeals and Review within 15 days from receipt of the September 22, 1970 notice (October 2, 1970), with a copy of said letter to the EEO officer at Aberdeen for forwarding through channels. Plaintiff did not make such a written *243appeal until October 20, 1970, received by defendant October 22, well out of time. Plaintiff’s deliberate failure to make a timely and proper appeal, which he could have waived had he been satisfied with the results of his other appeal then pending, and his failure even to ask the CSC Board of Appeals and Review to waive its time limit, prejudices his case before this court and invalidates any pretense that he sought to exhaust his administrative remedy in a timely and reasonable manner. Plaintiff made a deliberate choice not to appeal within the time limit of which he was advised, and he was not prevented by circumstances beyond his control from filing a timely appeal. This choice constituted a failure to exhaust the administrative remedy which is a required prerequisite to suit where the exhaustion is mandatory, as here. Haynes v. United States, 190 Ct. Cl. 9, 418 F. 2d 1380 (1969); Pine v. United States, 178 Ct. Cl. 146, 371 F. 2d 466 (1987); Gernand v. United States, 174 Ct. Cl. 936, 939-40 (1966), modified on other grounds, 188 Ct. Cl. 544, 412 F. 2d 1190 (1969); Blackmar v. United States, 173 Ct. Cl. 1035, 1044, 354 F. 2d 340, 346 (1965).
In Small v. United States, 200 Ct. Cl. 11, 470 F. 2d 1020 (1972), the court was confronted with a somewhat similar problem to plaintiff’s. Discussing there the Executive orders, it said that none of them mentioned possible lawsuits. It said that while race could have been a factor in plaintiff’s failure of promotion, the administrative relief provided was the limit of the remedy available in any event because the administrative decision was supported by substantial evidence, and was not arbitrary or capricious. It refused to make a remand as in Allison, stating that the plaintiff’s case had been examined in detail administratively and the adoption of any schedule of supposititious promotions would be an exercise of the imagination, without record support. The court derided the idea of reconstructing a “hypothetical career” for plaintiff, a technique it suggested would appear to have limitless possibilities. It said that to postulate sup-posititious promotions would be an exception to general refusal to grant back pay in such situations and could be permissible only where there was a specific act of discrimination which was the cause of a failure to promote at a *244definite time and place and in a manner that could be identified. Otherwise, the court said, a promotion would be produced by the mere imagination of a court of law. Hypothetical promotions on top of hypothetical promotions were described as “particularly suspect.” It said that back pay is not automatic for everyone who has a valid grievance. The case was not decided on the basis of jurisdiction, as were Chambers and Allison, but upon the basis of the foregoing comments and a belief that the administrative remedy in Small was fair and full under the facts of that case. I would follow that reasoning and say the same is true in the present case, allowing for the differences in the facts which illustrate more clear-cut discrimination in plaintiff Pettit’s case.
Plaintiff argues, although the court does not, that the facts of his case do not fit Allison. Plaintiff argues that here he has already met the primary requirement that he would have been promoted “but for” discrimination, that no remand is called for to establish this fact, and that he is entitled to judgment now. However, the “but for” showing has not been conceded by defendant at any point since plaintiff’s complaint was first filed in 1967 and is denied. On this record and on motions, it is improper for the court either to make such a finding as plaintiff claims, and thus usurp the discretionary authority and function of the Executive, or to take jurisdiction of this case and require additional findings on remand which would implement a judgment for money damages when rendered. The case should be dismissed and not remanded. This protracted matter has run its legal course.
The court in this case has wandered far afield from Small and even from Chambers and Allison and is lost in a thicket of its own creation. Its wandering can best be observed by reference to how it has strained to find a way to get around its “but for” test. The court here is faced with an extensive administrative record and findings which decline to say that plaintiff would have been promoted but for discrimination and, on the contrary, flatly state that he was not promoted because he lacked cooperation and stability and was not technically qualified on pertinent dates. The court alludes to the modification recommendation that because there was some *245discrimination this mandated preferential treatment for plaintiff if he should later become “among the best qualified” eligibles for promotion. This modification falls far short of finding nonpromotion “but for” discrimination. The court, however, says these clear findings “are not without ambiguity” and then somehow concludes that the modification, nevertheless, represents a rejection of the several findings that plaintiff’s nonpromotion was due to lack of qualifications. Of course, this curious leap is the court’s own finding because it is nowhere made in the modification of findings by AMO. The court must actually realize that because it admits the “but for” test has not literally been met here and that the record, as it stands on these pending motions, is insufficient for a back-pay award under its Chambers and Allison precedents, which are explicitly reaffirmed. The court says that the modifications “come close to admitting that plaintiff was denied promotion for racial reasons.” It says they “strongly imply” such was the case. Faced with the facts of record and its own admissions the court concludes: “The initial Finding that Pettit’s nonpromotion was due to his lack of qualification was emphatically rejected by higher authority in words implying a belief the real cause was discrimination, * * [Emphasis added.] It is submitted that an emphatic rejection would have to be by something more than implication just as “plastic glass” must be one or the other. We have findings which say that plaintiff would have been promoted but for discrimination, or we don’t.
Although the court pays lip service to the established doctrine that it shall not usurp the discretionary authority of the Executive department over appointments and promotions, it does just that by assuming jurisdiction which it does not have to adjudicate this case by stretching its “but for” test to a new dimension. The court does this by saying that it has jurisdiction under Executive orders, and under 28 U.S.C. § 1491, and that all a Government employee has to do to get into this court in a civil rights case is to allege that he is in a minority class, that he failed of promotion despite having the necessary qualifications, that he might have reasonably expected selection for promotion under the defendant’s on-going competitive promotion system” [em*246phasis added], and that his supervisors betrayed prejudice against his minority in other matters. What flies out of Pandora’s box next is the court’s proposition that having made such a prima facie showing the burden of proof shifts to the Government to show that nonpromotion was due to some reason other than discrimination. Cited as authority for this proposition are McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and Taylor v. Safeway Stores, Inc., 365 F. Supp. 468 (D. Colo. 1973). Those cases are not in point for at least four pertinent reasons. They interpret the Civil Eights Act of 1964,78 Stat. 241,42 U.S.C. § 2000e et seg. That Act, as mentioned before, in section 2000e (b), does not include the United States as an employer. The court continues to overlook this fact, as it has in prior decisions predicating relief in part on this Act as the statutory foundation for Executive orders against discrimination in Government enforceable in court. Further, the plaintiffs in MeDonneTl Douglas and Taylor were not Government employees as is our plaintiff Pettit. Also, those cases did not apply the vague, subjective, unenforceable, unconstitutional standard which the court uses here where it requires only that plaintiff “might have reasonably expected selection for promotion,” and his supervisors showed bias toward his race in other matters unrelated to the particular claim, as an adequate basis for complaint and for the shift of the burden of proof. Finally, in McDonnell Douglas there was no dispute about the employee’s qualifications as there is here. In Taylor there was the matter of unreliability of manipulated work records of the employee furnishing a pretext for his discharge. There are no such questions in the present case and the majority opinion elsewhere rejects plaintiff’s attempt to draw on discharge cases as relevant to his promotion claim.
Having satisfied itself that plaintiff either would have been promoted but for discrimination, or upon its new test that his suspicion is sufficient to require defendant to prove otherwise, the court remands this case to the Civil Service Commission to make findings “of the grade and pay of the position plaintiff would have filled, but for discrimination, and the date of the personnel action by which he would have filled it.” The court then says that the CSC can seek guid-*247anee from the Equal Employment Opportunity Act of March 24, 1972, Pub. L. 92-261, 86 Stat. 108, 42 U.S.'C. § 2000e-5 (Supp. II, 1972), “which expressly confers on the Commission power to grant back pay in cases such as this.” Plaintiff’s complaint, however, arose as early as 1960 and was filed in 1967, and nothing in the 1972 Act provides a retroactive remedy. The Act applies only to charges “pending with the Commission on the date of enactment of this Act and all charges filed thereafter.” 86 Stat. 113, 42 U.S.C. §2000e-5 note (Supp. II, 1972). Plaintiff’s appeal to the CSC Board of Appeals and Review was rejected as untimely by the board in a letter to plaintiff dated January 20, 1971. The letter indicated that the board decision was final and that there was no further right to appeal. Plaintiff, consequently, had no appeal pending with the CSC on March 24, 1972, when Pub. L. 92-261 became law.
The thrust of the remand, however, is that if the Commission does not accept the case, make findings and award relief the court will do it because its order requires that it be advised at regular intervals of the progress of further administrative proceedings before the Commission and it retains jurisdiction of the case. This accords, apparently, with plaintiff’s own representations that this court itself has jurisdiction under the 1972 Act to grant direct relief to him for back pay and to promote him retroactively. That, of course, is in error. The 1972 Act permits an appeal from agency action or the CSC directly to the appropriate United States distract court. It does not mention the Court of Claims. Appeals from the district courts in these matters are required by the Act to go to the circuit courts of appeals. 42 U.S.C. §2000e-5(j).
In reaching its conclusion that plaintiff should have been promoted before he was, the court wrongly ignores what it knows to be its lack of right and competence to exercise the discretionary function of the Executive and to make such a finding itself. But, it assumes jurisdiction which it does not have, stemming from the Executive orders, and inapplicable statutes, and clearly threatens that it will promote plaintiff retroactively if promotion is not otherwise provided, which it has no power to do. Orloff v. Willoughby, 345 U.S. 83 (1953); United States v. McLean, 95 U.S. 750 *248(1877); Tierney v. United States, 168 Ct. Cl. 77, 80 (1964), Plaintiff has no right to maintain a suit for the salaries of grades higher than those to which he was appointed, even if it is assumed that the failure to promote was wrongful, for whatever reason. Amundson v. United States, 128 Ct. Cl. 80, 120 F. Supp. 201 (1954); Dvorkin v. United States, 101 Ct. Cl. 296, cert. denied, 323 U,S. 730 (1944). As a corollary, when an employee has received the salary of the office to which he was appointed, he has received all that he is entitled to receive. Ganse v. United States, 180 Ct. Cl. 183, 376 F. 2d 900 (1967). Until Chambers and Allison this court has always held that, where exercise of discretion is involved and where violation of regulations authorized by statute is not involved, it is not proper for this court to become involved in the appointment or promotion business— civilian or military. Such cases are legion. Tierney, supra, collects some of them. The court here remands in the face of an administrative record already consisting of about 3500 pages compiled over a 4-year period and containing definitive, detailed findings and conclusions upon all of the pertinent issues by four administrative levels of review. Executive Order No. 11246, section 4, however, requires only one review. If the court is going to rely on the order, it should be satisfied.
Plaintiff also cites the Back Pay Act of 1966, 80 Stat 94, 5 U.S.C. § 5596. There is nothing at all in that Act granting the right to judicial relief for failure to receive a promotion. It refers instead to unjustified “withdrawal or reduction of all or a part of the pay, allowances, or differentials of the employee * * Nothing in the legislative history of the Act suggests that Congress intended to authorize payment of back pay to employees not promoted as a result of discrimination or for any other unjustified cause.
Plaintiff also cites certain federal regulations believed to have been promulgated to carry into effect the policies laid down by the Executive orders in issue here and says that violation of these regulations gives the court jurisdiction of the case. But, none of these regulations spells out any procedure which has been violated in this case. Only if the Government does not follow its regulations can it 'be argued that a cause of action arises. Such regulations must, in turn, be *249based on statutory authority waiving the sovereign immunity to suit. The court has properly rejected plaintiff’s reliance upon regulations and their alleged violation as a basis for plaintiff’s recovery. It also properly rejects as inapposite plaintiff’s authorities on this issue.
Summary
Restated, in summary, the record and the law clearly demonstrate the following 21 major reasons why plaintiff is not entitled to recover in this case and why the court is in error:
(1) The court says it has jurisdiction to remand, pursuant to 28 U.S.C. § 1491, as amended by Pub. L. 92-415 of August 29, 1972, 86 Stat. 652. That Act gives the court remand authority in two situations: (a) to provide an entire remedy afforded by its judgment and (b) in any case within its jurisdiction. ¡Since it has always been held that this court can only enter money judgments, United States v. King, 395 U.S. 1 (1969), and it has entered no such judgment here, it cannot remand this case to the Civil Service Commission under proviso (a), above. Since the case is not within its jurisdiction, being a claim for promotion, it cannot remand under proviso (b).
(2) The court says that it has jurisdiction pursuant to Executive Orders Nos. 11246 and 11478. But, no Executive order mentions the Court of Claims or purports to confer any jurisdiction upon this or upon any other court to implement the policies described in said orders relied upon by plaintiff and the court. On the contrary, it has been held that Executive orders do not create any judicial remedy or expand judicial jurisdiction. Ogletree v. McNamara, 449 F. 2d 93 (6th Cir. 1971); Gnotta v. United States, 415 F. 2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934 (1970). See also Congress of Racial Equality v. Commissioner, 270 F. Supp. 537 (D.Md. 1967); see generally Manhattan-Bronx Posted Union v. Gronouski, 350 F. 2d 451 (D.C. Cir. 1965), cert. denied, 382 U.S. 978 (1966). Executive orders can neither add to nor detract from the jurisdiction of the Court of Claims which is a court of limited jurisdiction derived from statute only.
*250(3) The United States has never waived its sovereign immunity for this type of claim and no judicial legislation can do so. Such a waiver must be strictly construed and cannot be implied. United States v. King, supra; Soriano v. United States, 352 U.S. 270, 276 (1957); United States v. Sherwood, 312 U.S. 584, 590-91 (1941). “The Court of Claims is a special tribunal established to hear and determine suits against the United States on claims of specified classes. Except as Congress has consented, there is no right to bring these suits against the United States, and therefore the right arising from the consent is subject to such restrictions as Congress has imposed.” Luckenbach S.S. Co. v. United States, 272 U.S. 533, 536 (1926). U.S. CONST, art. Ill, § 1. Congress has stated a federal policy against discrimination in Government employment, a policy implemented by Executive orders. But, Congress did not create and was under no obligation to provide a remedy through the Court of Claims. United States v. Shaw, 309 U.S. 495, 500 (1940); Lynch v. United States, 292 U.S. 571, 581-82 (1934).
(4) The Administrative Procedure Act does not give this court jurisdiction of this case nor waive the immunity of the sovereign from suits of this type. No legal wrong has occurred here which could be a basis for appeal and no statute has conferred upon plaintiff the right to bring such a suit. Blackmar v. Guerre, 342 U.S. 512, 515-16 (1952); Gnotta v. United States, 415 F. 2d at 1277.
(5) The Civil Eights Act of 1964 is inapplicable to plaintiff’s claim here because the United States is not defined therein as an employer for purposes of that Act. 42 U.S.C. § 2000e(b).
(6) The Back Pay Act of 1966, relied on by plaintiff, 80 Stat. 94, 5 U.S.C. § 5596, does not provide judicial relief for failure to get promoted.
(7) The Equal Employment Opportunity Act of 1972, 86 Stat. 103,42 U.S.C. § 2000e (Supp. II, 1972), confers no jurisdiction on the Court of Claims. This was the first statute providing judicial relief to Government employees claiming back pay for violation of their civil rights against discrimination. But, it specifies that the suits must be brought in the United States district courts. 42 U.S.C. § 2000e-5(f) (3) *251(Supp. II, 1972). Such, claims are appealable only to the courts of appeals. 42 U.S.C. § 2000e-5(j) (Supp. II, 1972). Further, such claims must have been pending with the Civil Service Commission on the date the Act became law. March 24, 1972. 86 Stat. at 113, 42 U.S.C. § 2000e-5 note (Supp. II, 1972). Plaintiff 'had no such claim then pending, having forfeited his right to appeal by letting the time for appeal lapse. If the Court of Claims had any jurisdiction over such claims prior to the 1972 Act, as Chambers and Allison improperly claimed, it was clearly divested by that Act. Even when suits are authorized they must be brought only in designated courts. Minnesota v. United States, 305 U.S. 382, 388 (1939).
(8) By the same token, the Civil Service Commission to which the court remands this case for plaintiff’s relief, has no jurisdiction because plaintiff did not file a timely written appeal as he was advised to do. His failure to do so was his own deliberate choice and without extenuating circumstances. Plaintiff has failed to exhaust his administrative remedy and cannot now be heard to complain. Gernand v. United States, 174 Ct. Cl. 936, 939 (1966), modified on other grounds, 188 Ct. Cl. 544, 412 F. 2d 1190 (1969); Hutton v. United States, 154 Ct. Cl. 34, 39 (1961); Monday v. United States, 146 Ct. Cl. 6, 9 (1959), cert. denied, 361 U.S. 965 (1960); Bodson v. United States, 141 Ct. Cl. 532, 534, 158 F. Supp. 948, 949 (1958); Henry v. United States, 139 Ct. Cl. 362, 363, 153 F. Supp. 285, 286 (1957).
(9) Plaintiff seeks a declaratory judgment which this court has no jurisdiction to render. United States v. King, 395 U.S. 1 (1969).
(10) The Court of Claims has jurisdiction to grant money judgments but does not have jurisdiction to make or to command appointments or promotions in the Government service for to do so would be usurpation of the discretionary function of the Executive. United States v. King, supra; Glidden Co. v. Zdanok, 370 U.S. 530, 577 (1962); Tierney v. United States, 168 Ct. Cl. 77 (1964).
(11) The Court of Claims is not empowered to review de novo the discretionary decisions of the Executive agencies as long as they conform to their own procedural require*252ments. The court concedes that defendant has not violated any of its regulations in this case. Schlegel v. United States, 189 Ct. Cl. 30, 35-36, 416 F. 2d 1372, 1375 (1969), cert. denied, 397 U.S. 1039 (1970); Morelli v. United States, 177 Ct. Cl. 848, 858 (1966).
(12) The plaintiff’s contention that he would have been regularly promoted in the past 12 years and would be regularly promoted in the future to higher grades, without discrimination being practiced against him, is imaginary and neither the administrator nor the court is entitled to engage in such speculation. The Court of Claims, especially, cannot be the “promotion watchdog” over the millions of federal employees. It cannot create hypothetical careers for these employees and postulate promotions by the mere imagination of judges. Small v. United States, 200 Ct. Cl. 11, 20, 470 F. 2d 1020, 1036 (1972).
(13) After investigation and hearing plaintiff was accorded administrative relief by his promotion and this is the only remedy to which he is entitled by law since retroactive and future promotions are not authorized by law as a judicial or administrative remedy under any statute in effect at the time plaintiff’s claim arose. Keim v. United States, 177 U.S. 290 (1900) ; Tierney v. United States, supra; Donnelly v. United States, 133 Ct. Cl. 120, 134 F. Supp 635 (1955); Amundson v. United States, 128 Ct. Cl. 80, 120 F. Supp. 201 (1954).
(14) Since the Court of 'Claims can grant money judgments only for money presently due, and since plaintiff never held the positions for which he claims 'back pay, he cannot recover such pay by projecting supposititious promotions. Plaintiff has no inherent or constitutional right to any Government employment. United States v. McLean, 95 U.S. 750 (1877); Keim v. United States, supra; Small v. United States, supra; Tierney v. United States, supra; Donnelly v. United States, supra; Amundson v. United States, supra. Even if the failure to promote was wrongful, for whatever reason, it does not give rise to a cause of action in court. Amundson v. United States, supra; Dvorkin v. United States, 101 Ct. Cl. 296, cert. denied, 323 U.S. 730 (1944); Ogletree v. McNamara, supra; Gnotta v. United States, supra.
*253(15) Plaintiff draws analogies to tort cases but if be has suffered a tort the Court of Claims has no jurisdiction to grant him relief for it. This is clear from the language stating our basic jurisdiction in the Tucker Act, 28 U.S.C. § 1491; also, see Eastport S.S. Corp v. United States, 178 Ct. Cl. 599, 609, 372 F. 2d 1002, 1010 (1967); McCreery v. United States, 161 Ct. Cl. 484 (1963). Indeed, plaintiff would be without remedy in any federal court because of the discretionary exception in the Federal Tort Claims Act. 28 U.S.C. §§ 1346, 2680; 25 Vand. L. Rev. 452 (Mar. 1972).
(16) The decision by the court in this case is based upon its holdings in Chambers and Allison, supra, which in turn were founded upon the purported authority which certain Executive orders give to the Court of Claims under the further assumption that such orders derive from statutory authority giving us jurisdiction. Since it is clear from the decisions of other courts that such orders do not confer judicial jurisdiction and cannot, and since it is further clear that this court was in error in relying on statutory authority of the Civil Eights Act of 1964 which does not encompass the Federal Government within its terms as an “employer” for purposes of the Act, the decision in the instant case is insupportable in law, as are the decisions in Chambers and Allison. Gnotta v. United States, supra; Ogletree v. McNamara, supra; Congress of Racial Equality v. Commissioner, supra. If this court is permitted to persist in its error, and if the Comptroller General continues to refuse to be a part of it, every promotion claim by a member of a minority class will require a separate lawsuit no matter how frivolous it may be.
(17) Assuming for discussion alone that Chambers and Allison are adequate precedents for taking jurisdiction of the present case, the facts of the instant case do not fall within their orbit. Those cases held that it was necessary for plaintiffs to show that they would have been promoted “but for” discrimination against them. There is no such administrative finding in this case but explicit findings are to the contrary and give other reasons for plaintiff’s non-promotion. The court thinks that it is just because the administrative findings in this case were made before Chambers *254■and Allison were announced that the “but for” test was not literally applied administratively. Yet, it mysteriously reads into the final modification of administrative findings a rejection of all prior findings that plaintiff’s nonpromotion was for reasons other than discrimination. The court usurps the discretionary authority of the Executive in so doing, acts without substantial evidence which is all to the contrary, and the court makes a finding which it has no authority to make without a trial of its own. It also makes a finding inconsistent with its own discussion of the administrative findings which it says only “come close” or “strongly imply” meeting the “but for” test and, standing alone, are inadequate for a back-pay award.
(18) Faced with facts and law which do not support its assumption of jurisdiction and confronted with its precedents which do not fit the facts of this case, the court promulgates a new guideline to justify taking jurisdiction in promotion cases by announcing that a qualified member of a minority class only has to make a prima facie case to get into court whereas other Government employees are barred altogether. Such a prima facie case may be founded on plaintiff’s belief (suspicion) that he was denied a. promotion that he “might reasonably have expected” and where his supervisors “betrayed in other matters a predisposition towards discrimination against members of the minority involved.” [Emphasis added.] Upon such a showing the burden of proof is then shifted to defendant to show that the suspicion is ill-founded as a basis for recovery. This is probably the most administratively burdensome, vague, unreasonable, unworkable, discriminatory rule ever announced by this distinguished court which has prided itself upon its understanding of the complex workings of the Government machinery, its prior even-handed treatment of citizens without regard for race, economic condition, or other distinguishing characteristics, and which has treated the Government and citizen with equal justice. By eliminating the requirement for any causal connection between plaintiff’s nonpromotion and the bias of his supervisors the court has, without openly saying so, thrown out of the window its “but for” test which was the cornerstone of its decisions in *255Chambers and AUison and which, it claims here to reaffirm and to rely upon.' The new test, the suspicion test, without even requiring a connection to bias resulting in non-promotion, of course, falls of its own weight and illogic. The court relies for this new rule upon cases not in point as they involved interpretation of a 1964 statute not applicable to this court, or to the Government, or involving Government employees, and the factual circumstances were also quite different as more fully developed in the main body of this opinion. What might be feasible in the labor relations, employment practices, and administration of a corporation is not necessarily analogous to Government and Congress declined in 1964 to make it so. The court, however, legislates a responsibility upon the defendant to engage in the rankest speculation, dating back many years, concerning plaintiff’s possible assignments, and with a command to construct for him a hypothetical career, past and future, as a basis for a cash award.
(19) The court has not discussed plaintiff’s claim for interest, legal fees, and other expenses and losses projected to the year 1982. It has no authority to include them in a judgment absent contract or statutory authority which is missing here. 28 U.S.C. §§ 2412, 2516. However, the implication is left that if plaintiff is not accorded relief satisfactory to him by the Department of the Army or the Civil Service Commission he can come back to the court, which is retaining jurisdiction of this case pending further proceedings which it has ordered. The court has required that regular progress reports be made to it about how its directions to the Civil Service Commission are being implemented. It is reasonably predictable that final resolution of this case is many years and many thousands of dollars and manhours away, notwithstanding the extensive consideration it has already received. This is no small handicap which the cmirt lays upon the conduct of the Nation’s business. In attempting to solve what it believes to have been an evil it has created one of considerable dimensions.
(20) The court grants plaintiff relief which he has not asked for and rejects. The court remands the case for a fifth administrative proceeding in the face of a large record *256already made over a period of several years and on which plaintiff is satisfied to rely. The Executive has already exercised its discretionary function in this case to a greater extent and with more patience than called for by any pertinent order or regulation. Because plaintiff did suffer some discrimination he was given preferential treatment and promotion notwithstanding a record showing that he did not always perform his assignments well, was lacking in the characteristics of cooperation and stability, was guilty of extensive absenteeism, and was short on technical ability. In view of the existing, extensive administrative record which is supported by substantial evidence, a remand for further proceedings under guidelines which call for speculative considerations in the extreme and which action is taken only because the court improperly assumes jurisdiction of this claim over which it has no jurisdiction, puts an unconstitutional, unconscionable, expensive, time-consuming burden upon both plaintiff and defendant, and it should not be tolerated. Universal Camera Corp. v. NLRB, 340 U.S. 414, 477 (1951); Koppers Co. v. United States, 186 Ct. Cl. 142, 147-51, 405 F. 2d 554, 556-57 (1968); Gnottav. United States, supra.
(21) By its action in disregarding the administrative findings, which do not show that plaintiff was not promoted “but for” discrimination, and in refusing to support the CSC ruling that plaintiff’s final appeal was not timely taken, although plaintiff did not even ask for waiver of the time limit, the court without substantial evidence has vitiated the long-honored rule that in discretionary matters the officers of the Government will be presumed to have discharged their duties in a legal and proper manner and in good faith. It takes “irrefragable proof” to overcome the presumption. There is no such proof here. United States v. Chemical Foundation., Inc., 272 U.S. 1, 14 (1926); Grover v. United States, 200 Ct. Cl. 337 (1973) ; Kozak v. United States, 198 Ct. Cl. 31, 35, 458 F. 2d 39, 40 (1972) ; Knotts v. United States, 128 Ct. Cl. 489, 492, 121 F. Supp. 630, 631-32 (1954).
In conclusion, I agree with Chief Judge CoweN and Judge SkeltoN that defendant’s motion for summary judgment should be granted, plaintiff’s motion should be denied, and the petition should be dismissed.