(dissenting):
In my opinion, a remand to the District Court for a factual hearing in this case is not only unnecessary, but also embarks that court on the improper course of re-drafting invalid regulations on an ad hoc basis to make them comply with the Constitution. I must therefore respectfully dissent from the majority’s decision.
The Civil Service regulation which excludes all aliens from admission to competitive examination1 violates the Constitution under the principles announced by the Supreme Court in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). In Graham, the Court held that classifications based on nationality or alienage are “inherently suspect” and must be subjected to close judicial scrutiny. Graham at 372, 91 S.Ct. 1848. Thus a compelling state interest, apart from the now discredited “special public interest” in dispensing financial benefits to citizens over aliens, must be found if such classifications are to be sustained under the Equal Protection Clause.2 Graham at 376, 91 S.Ct. 1848. The principles announced in Graham apply fully to the federal government, Nielsen v. Secretary of Treasury, 137 U.S.App.D.C. 345, 424 F.2d 833 (1970), and protect an individual’s opportunity for public employment as well as his interest in welfare payments, Dougall v. Sugarman, 339 F.Supp. 906, (S.D.N.Y.1971).
In Dougall v. Sugarman, supra, a three-judge panel struck down, without a factual hearing, a New York statute which excluded all aliens from the competitive class of the Civil Service, on the grounds that none of the interests which New York advanced were adequate justification for this classification under the standards of Graham v. Richardson. In the case before us, the federal government raises no different, or more compelling, interests. It is therefore inconceivable that the Government could establish a compelling state interest at a factual hearing to justify the exclusion of all aliens from dll positions requiring the competitive Civil Service examination.
The only interest which could possibly rise to that level is the perceived necessity for employing persons of undivided loyalty in policy-making positions, or positions involving national security interests. But the weakness of this interest as a justification for the total exclusion of aliens from competitive positions becomes apparent upon examination of the *931entire text of the Civil Service regulations. These provide explicit exceptions for the employment of aliens.3 Furthermore, positions in the highest branches of the Executive, and those of a “confidential or policy-determining character” constitute an “excepted service” which is exempt from the Civil Service regulations and to which it seems aliens might be appointed.4 In view of the accessibility of these undeniably responsible positions to aliens, it is rather incongruous for the Government to maintain that there is still a compelling need to exclude them from the entire rank and file of the Civil Service because of their questionable loyalty. Accord, Dougall v. Sugarman, supra, 339 F.Supp. at 908, n. 6.
Even if some Civil Service positions might be foreclosed to aliens because of their sensitive nature,5 it is neither proper nor possible for a District Court to undertake to identify those particular positions whose special demands make citizenship a compelling requirement. This is precisely the task which the Civil Service should perform, or else the District Court must suffer litigation on a case-by-ease basis to determine the suitability of an alien for the type of job he seeks. Once the Civil Service attempts to set standards for the admission of aliens which reflect compelling governmental interests, courts can properly review them. But until then, there is nothing to be learned on remand even remotely comparable to the factual issues this court remanded in Quaker Action Group v. Hickel, 139 U.S.App.D.C. 1, 429 F.2d 185 (1970) and the other cases cited by the majority in note 10, supra.6 A regulation which simply excludes all aliens from all competitive positions on its face sets no standards, reflects no compelling interests, and is therefore invalid. We should not hesitate to say so.
Thus I find no merit to the majority’s contention that a factual hearing must be held in the District Court in order to resolve appellant’s constitutional attack on the Civil Service regulations. I detect an intimation in the majority’s opinion that we should forebear ruling on this constitutional question, since the case can be disposed of on a non-constitutional ground — namely, that the regulations are an illegal extension of the authority delegated by Congress to establish requirements for employment in the Executive branch. The majority focuses on the issue of whether exclusion of all aliens “best promote the efficiency of that service.” 5 U.S.C. § 3301(1).
It is clear to me, however, that this issue cannot be considered without taking full account of another Congressional enactment, the Public Works Appropriation Act, 1970, § 502, P.L. 91-144, 83 Stat. 336, which specifically provides for *932the exclusion of aliens from the federal payroll. This statute applies the same blanket exclusion of aliens from all positions7 in the federal government, and will be of crucial weight in the determination of whether the Civil Service regulations are ultra vires.
Thus, the constitutionality of the Public Works Act must be considered by the District Court in the first instance, and it raises the same constitutional question I have outlined above. Graham v. Richardson applies with equal force to require “compelling” interests to justify exclusion of aliens from the entire federal payroll, and the Government has offered none.
Since confrontation of the constitutional question simply cannot be avoided or ignored, there is no judicial principle or practice which would have us remand the ease to the District Court for an unnecessary and impermissable factual hearing.
On principles of law, I would reverse the decision below and hold both the Civil Service regulation and the Public Works Appropriation Act invalid.
. 5 CFR § 338.101(a).
. It cannot be doubted that a federal law can impose impermissible discrimination, “so unjustifiable as to be a denial of due process.” Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
. In the absence of qualified citizens, 5 CFR § 338.101(b) (1), and other rare instances, 5 CFR § 338.101(b) (2).
. See 5 CFR Part 213, particularly §§ 213.3101-.3394.
. This possibility was noted by Judge Lumbard concurring in Dougall v. Sugar-man and is quoted in the majority opinion above. The mere existence of this possibility apparently did not compel the court in Dougall to itself undertake the task of re-drafting the New York legislation to make it comply with the Constitution.
. Quaker Action Group presented two important factual issues which the District Court had decided summarily — the constitutionality of a narrowly drawn prohibition on picketing in front of the White House and the question of its discriminatory enforcement. Allen v. Hickel necessitated a factual inquiry into the religious purpose and effect of including a creche in the national Pageant of Peace. 138 U.S.App.D.C. 31, 424 F.2d 944 (1970). Women Strike for Peace v. Hickel, 137 U.S.App.D.C. 29, 420 F.2d 597 (1969) involved the denial of a permit to erect an antiwar display by the National Park Service. Remand was necessary since the very policies of the Park Service were unclear and thus could not be tested. In this case the Civil Service rule is perfectly clear, as are its purported justifications. I would adhere to the teaching of Women Strike for Peace: “It is not for this or any other court to construct guides for park use. The duty of the court is to assure our citizens that the Park Service has rules, or criteria, or guidelines.” Id. at 603.
. Not all aliens are affected, since an exception is provided for “nationals of those countries allied with the United States in its current defense effort.”