(dissenting in part and concurring in part):
As this case now stands, it is my opinion that this court does not have jurisdiction over Jane Doe’s Back Pay Act claim.1 It is uncertain because of defects in the record, moreover, whether we have jurisdiction over any of Jane Doe’s claims in this case. Until this court’s jurisdiction, which involves a question of jurisdictional amount, is determined, this court should not decide this case, and in no event should this court decide the Back Pay Act claim. Even assuming we have jurisdiction, however, I cannot agree with the panel’s unwarranted application of the liberty component of the due process clause to Department of Justice employees. Justice Department employees have no “protected status,” and therefore cannot maintain a liberty interest claim.
The appellant, moreover, did not ask for a hearing in her complaint, but for money damages. To reach its unfortunate result, the majority has had to construct the claim for a hearing out of broad cloth by reviewing the district court’s Fed.B.Civ.P. 12(b)(6) dismissal on the facts alleged. The majority’s opinion thus travels far to reach an absolutely new departure from the current practice concerning at will employment in the Justice Department and in the excepted service in general. The requirement that a name clearing hearing be held in cases like this one will interfere with the maintenance of high professional standards in the Justice Department. It will also threaten important separation of powers values which Congress intended to advance by excepting select parts of the Executive Branch from the usual Civil Service protections against at will discharge of employees. By following the analysis of Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), moreover, these results could have been avoided.
On the assumption that we have jurisdiction, I concur with the majority’s opinion that the Bivens claims are barred by the District of Columbia statute of limitations for defamation. This result is clear from the face of Doe’s complaint.
I.
To begin with, it is my view that this court does not have jurisdiction to decide the Back Pay Act2 claim the majority addresses in Part II of its opinion. Nor could it have jurisdiction over that claim under any circumstances. Moreover, this court might not even have jurisdiction over any of the claims the majority reaches, depending on whether the Back Pay Act claim is for $10,000 or less or for more than $10,-000. While the complaint alleges the total matter in controversy is in excess of $10,-000. 3.it could not be more obvious that before this court reaches any of Jane Doe’s claims on the merits, it must find that it has jurisdiction. That requires the factual question of the amount of the Back Pay *1120Act claim to be remanded to the district court before any further proceedings.
It is uncontroversial that the Tucker Act, 28 U.S.C. § 1491, and 28 U.S.C. § 1346(a)(2), 78 Stat. 699 (1964), confers exclusive jurisdiction to the Claims Court over claims against the federal government that are for more than $10,000 and that arise out of Acts of Congress. Before the enactment of 28 U.S.C. § 1346(a)(2), all such claims, regardless of the amount, had to be brought before the Court of Claims. Section 1346(a)(2) afforded small claimants (those with claims for $10,000 or less) the convenience of being able to bring their actions in the local federal District Court, rather than before the Court of Claims in Washington, D.C. S.R. 1390, 88th Cong., 2d Sess. 1 (1964). It has always been clear, however, that for Back Pay Act claims for more than $10,000, the Claims Court has exclusive jurisdiction. 28 U.S.C. § 1346(a)(2). Schulthess v. United States, 694 F.2d 175, 177 (9th Cir.1982) (“Federal Courts hear only cases over which they have jurisdiction____ Under 28 U.S.C. § 1346 (the Tucker Act), district courts have jurisdiction over money claims against the United States that are based on the Constitution, Acts of Congress, executive regulations or contracts with the United States only if the claim involves $10,000 or less ...”); Keller v. Merit Systems Protection Board, 679 F.2d 220, 222-23 (11th Cir.1982) (“ ‘The Court of Claims is the sole forum for the adjudication of [a claim against the United States exceeding $10,-000], even though the claim would otherwise fall within the coverage of some other statute conferring jurisdiction on the district court.’ ” (quoting Graham v. Hene-gar, 640 F.2d 732, 734 (5th Cir.1981))); Graham v. Henegar, 640 F.2d 732, 734 (5th Cir.1981); Cook v. Arentzen, 582 F.2d 870, 873 (4th Cir.1978) (“... the district court had no jurisdiction because the amount of the claim exceeded $10,000.00 ... ”); Polos v. United States, 556 F.2d 903, 905 (8th Cir.1977) (“such a [military pay] claim, when in excess of $10,000, is within the exclusive jurisdiction of the Court of Claims.”) (emphasis in parentheticals added); see also S.R. 1390, 88th Cong. 2d Sess. 1 (1964). Thus if Jane Doe’s Back Pay Act claim is for more than $10,000, the district court had no jurisdiction to decide it and it is not properly before this court for review.
Even if the Back Pay Act claim is for $10,000 or less, however, this court has no jurisdiction to hear it or any part of the case of which that claim is a part. While the district court would have concurrent jurisdiction with the Claims Court under 28 U.S.C. § 1346(a)(2) for a claim for $10,000 or less, the appeal from the district court of that claim and of the whole case of which it was a part, must go by law exclusively to the Court of Appeals for the Federal Circuit. Federal Courts Improvement Act of 1982, 28 U.S.C. § 1295(a)(2), 96 Stat. 37 (1982).
Therefore whether this court has jurisdiction for any of the claims the majority reaches depends on a factual question: For what amount is Jane Doe’s Back Pay Act claim? If the answer is, for more than $10,000, then Part II of the majority opinion is wrong because the district court had no jurisdiction over the Back Pay Act claim in the first place. If the answer is, $10,000 or less, then all of the majority’s opinion is wrong because this case was appealed to the wrong circuit, and should be transferred to the Federal Circuit Court forthwith. To settle this threshold jurisdictional matter, this court must remand the question of jurisdictional amount to the District Court for a hearing, rather than decide the case here on the merits. Especially given the important consequences that hinge on the question of jurisdictional amount, the defendant-appellee deserves the opportunity to dispute the facts concerning the Back Pay Act claim. Under that Act, an employee affected by an unjustified or unwarranted personnel action is entitled to “an amount equal to all or any part of the pay ... which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period ...” (emphasis added) 5 U.S.C. *1121§ 5596(b)(1)(A)® (Supp. V 1981). If Jane Doe has been employed in the private sector since her dismissal at a salary comparable to or better than that she received in the Justice Department, her Back Pay Act claim might well be less than $10,000. Moreover, Jane Doe was under an affirmative duty to mitigate her damages, and the amount mitigated, whatever it is, may not be included in the jurisdictional amount. Stone v. United States, 683 F.2d 449, 454 (D.C.Cir.1982).
The majority avoids this jurisdictional problem by simply assuming that Jane Doe’s claim is for more than $10,000. While this handily preserves the jurisdiction of this court over the remainder of the case, it does so only at the expense of the rights of both parties. This is because this court does not know whether Jane Doe might prefer to waive her. Back Pay Act claims in excess of $10,000 in order to preserve the district court’s jurisdiction and bring her appeal to the Federal Circuit, where it might fare better. She has that right under 28 U.S.C. § 1653 (1976), and could exercise it by amending her pleading on remand. See Goble v. Marsh, 684 F.2d 12, 17 (D.C.Cir.1982). The federal government moreover may be able to prove that the Back Pay Act claim must be for less than $10,000, if Doe decides not to waive it. That Jane Doe made close to $45,000 per year, as the majority notes, is insufficient to establish the amount of the claim since by statute it must be offset by whatever her earnings were once she left government service. The majority assumes jurisdiction on the basis of mere speculation as to jurisdictional amount, and in so doing deprives Jane Doe of her right to waive part of her claim and the government of the right to contest jurisdiction in the district court.
After concluding the district court had no jurisdiction on the Back Pay Act claim, the majority goes on to affirm the district court’s holding on the merits. Maj.Op. at 1101 (“We therefore affirm the dismissal for jurisdictional reasons as well as those stated by the district court.”) This is no mean feal. The Back Pay Act claim for money, rather than for reinstatement, does not present a “difficult” jurisdictional issue. Presumably therefore the majority means to invoke Secretary of the Navy v. Avrech, 418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974) (per curiam) only with respect to the related reinstatement claim. The majority thus has no authority to affirm on the merits the district court’s holding on the Back Pay Act claim for money. This is what not having jurisdiction means. Nor does Avrech, supra, provide a way out of the paradox the majority has created: The only thing that makes the jurisdictional issue of whether Jane Doe’s claim is for $10,000 or less or for more than $10,000 “difficult” is the majority’s refusal to remand the issue to the proper forum. The majority expresses confidence that the courts which would properly have jurisdiction over the Back Pay Act claim if it is for more than $10,000, the Claims Court and the Federal Circuit, would agree with the holding of the district court as to the claim over which, the majority concedes, that court had no jurisdiction. The majority thus apparently intends to hold that one advisory opinion may properly affirm another, as if jurisdiction may be had by some principle of accumulation. And even to reach this dubious position, it should be recalled, the majority must assume away) quite improperly, the question of jurisdictional amount. The court should abandon this ill chosen redoubt and flee to the high ground of logic: Either a court has jurisdiction or it does not. This court should not decide the case until the jurisdictional basis of the district court’s decision and this appeal is clear.4
*1122Under no circumstances, therefore, should the majority have reached the Back Pay Act claim; this court lacks jurisdiction to hear the appeal on that claim whatever the amount. And the legal question as to which court does have jurisdiction to reach any of the claims the majority addresses, including the important due process claim, must remain in doubt unless and until the jurisdictional amount of the statutory Back Pay Act claim is settled. As the record now stands, it is impossible to tell whether this court has jurisdiction. This question should not be hastily settled in manner that affects the rights of the parties without their having the opportunity to address the issue. This issue should be first decided by the District Court. I would support a remand for that determination. “It is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978).
II.
The Department of Justice, like the other excepted branches of the Civil Service, has a special commitment to the highest professional standards. To promote these standards, Congress excepted the Department of Justice, and other parts of the Civil Service, from the hearings requirements the regular divisions of the Civil Service must observe before firing an employee. This excepted status traditionally has meant that a lawyer working for the Justice Department, even a United States Attorney confirmed by the Senate, could be fired at any time, for any reason. Now this court holds that one of the federal government’s lawyers cannot be fired for drunken and obnoxious behavior while on duty without implicating a liberty interest, the protection of which may require a name-clearing hearing. This attempt to extend due process introduces an inexplicable paradox into the national government’s relationship with its lawyers: They may be dismissed for no reason without a hearing, but for being drunk on the job, incompetent, or dishonest (or any other reputation damaging charge), they may not be dismissed without a hearing. The panel, like some other circuit courts, makes its wrong step by incorrectly applying the holding of Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The majority does apply analysis that comes from Paul, but apparently more from the dissent than the majority opinion. Before examining the analysis of the liberty interest of Paul in detail, however, it should be emphasized what a dramatic departure from the current, sound practice of the Executive Branch is represented by the majority opinion in this case.
Should the majority opinion ultimately prevail, the Justice Department will be encumbered with the necessity of holding hearings before or after it dismisses lawyers who have, through their unprofessional conduct, damaged the reputation of the Department and its client, the United States Government. This inhibition of the Justice Department’s ability to act as the government’s law firm, hiring, promoting and firing with freedom exceptional for a government bureaucracy, will only diminish the prestige of the Department while it confers no concrete benefit on the Jane Does who might suffer from arbitrary government employment decisions. The mere requirement that some kind of hearing be held, moreover, only forces government officials to observe certain formalities. It places no real obstacles in the way of superiors inclined to perpetrate an arbitrary personnel action, except perhaps that *1123they be conducted in silence. To provide real protection, substantive limitations would have to be placed on official discretion. Cf Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). But that course would take the court far into the legislative realm, for it would require it to weigh at every turn the importance of the values of professionalism and accountability to the President which the exceptions Congress created for the Justice Department (and the rest of the excepted service) were meant to advance.5 But the majority’s opinion goes even further than this: It would seem to require, for example, that the President, or the Attorney General, or the Chairman of the Joint Chiefs of Staff hold a name clearing hearing either before or after he or she fired any of his or her officers, most of whom fall into the category of the excepted service, or some other special legal status created by statutes or regulations. This is so, assuming only that an official was firing a subordinate for some reason that the public or future employers would eventually find out about and that was damaging to that officer’s reputation (as are most discharges for reason). So if the Director of the Arms Control and Disarmament Agency was caught selling military secrets to the KGB, he could not be fired without a hearing if the reason were given, or if the Administrator of the Environmental Protection Agency was found to have accepted bribes from major toxic waste polluters, she could not be fired without a hearing if the reason were given.
Of course, the effect of the majority’s opinion will not be limited to the Executive Branch. When a Congressman wants to fire a staff aid and the reasons are such that they cannot be kept secret, a hearing must be held. If a judge wants to fire a law clerk, or the court wants to fire the clerk of the court, a hearing must be held if a reason is given for the firing. The effects of this decision will be widespread. If the majority opinion does not require these results, then why doesn’t it? One cannot say, because Congress has intentionally excepted certain high government officials from any requirement of a hearing: That is what this case explicitly prohibits. Nor can one say, if Congress wants to permit the President (or some other officer of the Executive Branch) to fire subordinates, at will, without hearings, it can pass a law to that effect. Such a law would be invalid under the expansion of the due process clause decreed by the majority opinion.
Thus the majority opinion threatens important separation of powers values implicit in the concept of at will employment in the Executive, Legislative, and Judicial Branches. The President’s ability to execute the policies the electorate affirms by its vote depends in part on the President’s ability, and that of other high administration officials, to hire and fire policy making employees and officials freely, so that those who will support administration policies effectively hold office. Much of this job shuffling, especially at high levels, takes place in the glare of publicity and with an unspoken understanding that one should leave office gracefully. But politics within the Executive can also be rough and tumble. Allegations that are damaging to reputations frequently fly when jobs, and the power that goes with them, are at stake. The necessity for a name clearing hearing before or after someone is fired in a way that arguably damages his reputation will complicate and inhibit the manner in which a President and other administration officials may execute policy decisions.
The excepted civil service was created in part to recognize and protect politically sensitive and constitutionally important areas of government employment from such *1124procedural restraints. The majority’s decision violates this policy while it will encourage, moreover, the undesirable policy of making decisions in secret and without giving reasons. This is so because all an official needs to do if he wants to avoid a name clearing hearing is not to give any reason for dismissing someone. Cf Moler-io v. Federal Bureau of Investigation, 749 F.2d 815 at 823-824 (D.C.Cir.1984) (government’s defamatory reason for denying employee “top secret” security clearance not stigmatizing because unpublished and confidential). And it is frequently impossible, even if it were desirable, to keep the reasons for such decisions secret, for political reasons or because of other laws that require the giving of reasons.
It would be difficult to put forward an issue that raised more important separation of powers concerns than the relationship of the Chief Executive, or another high Executive official who is constitutionally charged with the faithful execution of the laws, to the country’s principal law enforcement agency. When the court encounters such important constitutional concerns, it should look again at the major Supreme Court case to see what it really requires, especially when simply to apply tests generated by lesser authorities around that case would lead to such intuitively implausible results as the majority reaches here. By properly applying the liberty interest analysis in Paul v. Davis, supra, the encroachment on the separation of powers the majority opinion invites could have been avoided.
III.
Paul v. Davis in Part III holds that the interests that are comprehended within the meaning of either liberty or property, as covered by the due process clause of the Constitution, are those interests which have “attainted] constitutional status by virtue of the fact that they have been initially recognized or protected by state law,” 424 U.S. at 710, 96 S.Ct. at 1165, or federal law. Id. at 712, 96 S.Ct. at 1166. Interests recognized as having a “protected status” in Paul v. Davis included, for example, the right given by issuing drivers’ licenses to the citizens of a state to operate a vehicle on state highways, Bell v. Bur-son, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); the right afforded by a state to a parolee to remain at liberty as long as the conditions of parole are not violated, Mor-rissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); the right of a student, conferred by state statute, to attend school, without suspension for misconduct without compliance with the procedural guarantees of the Fourteenth Amendment, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); and the right of an individual under state law to purchase or obtain liquor in common with the rest of the citizenry which was violated by the “posting” of names of persons to whom liquor could not be sold, Wisconsin v. Con-stantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). In interpreting Con-stantineau the Court in Paul v. Davis stated “[t]he ‘stigma’ resulting from the defamatory character of the posting was doubtless an important factor in evaluating the extent of harm worked by that act, but we do not think that such defamation, standing alone, deprived Constantineau of any ‘liberty’ protected by the procedural guarantees of the Fourteenth Amendment.” 424 U.S. at 709, 96 S.Ct. at 1164 (emphasis added). It is thus only “protected interests” that can claim the protection of due process rights and as the opinion of the majority states:
As a member of the excepted civil service, Doe enjoyed no statutory entitlement to her position with the Department; similarly, the Department was not procedurally constrained by the civil service laws or any other regulations in its actual decision to terminate Doe.
Maj.Op. at 1100-01.
The majority opinion thus recognizes that Doe had no “protected interest” in employment in the Justice Department. It thus follows that Doe cannot have alleged a violation of a liberty interest.
*1125This “protected interest” requirement at the heart of Paul’s liberty interest analysis has thrived more in the circuit courts’ analyses of constitutional property interests than of liberty interests. No one has suggested, however, that Paul v. Davis is not good law on the nature of the liberty interest. Dicta in Roth,6 Codd7 and Paul which might be interpreted to suggest that an at will government employee has a right to a hearing completely independent of any statutorily created procedural protection of a liberty interest notwithstanding, to apply the analysis the majority does here only confuses an important area of law. See Maj.Op. at 1104-10.
Justice Rehnquist discusses both liberty and property interests in Part III of Paul v. Davis. Perhaps it is his exposition of the two analyses at once that accounts for the majority’s peculiar view that this dissent, by espousing Paul, is arguing the theory that before one can have a liberty interest in something one must first have a property interest in it. This is not at all the case. Nonetheless, it is true that the analyses of liberty and of property share essential features. They are similar, but they are not the same.
In Part III of Paul, Justice Rehnquist cites Morrissey v. Brewer, 408 U.S. 471, 92 5. Ct. 2593, 33 L.Ed.2d 484 (1972), a case unambiguously involving the liberty interest, before the Court, as it was, on writ of certiorari appealing a denial of a writ of habeas corpus. About this liberty interest case, raised in the classic liberty context of habeas corpus, the Justice wrote
In Morrisey v. Brewer ..., the State afforded parolees the right to remain at liberty so long as the conditions of their parole were not violated. Before the State could alter the status of a parolee because of alleged violations of these conditions, we held that the Fourteenth Amendment’s guarantee of due process of law required certain procedural safeguards.
In each of these cases, as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished.
(Emphasis added.) Id. 424 U.S. at 711, 96 S.Ct. at 1165.
There can be no question that the Justice is referring to Morrissey, among others, when he says “in each of these cases.” He is therefore applying the language emphasized above not only to the property interest, but to the liberty interest as well.
To see if a liberty interest has been violated, we must first look to see whether state law, or, under the Fifth Amendment, federal law provides some procedural protection against the removal of some liberty or property interest and then whether those protections have been removed or infringed by the state. This is true of both liberty and property interests, but that in no way implies the interests always overlap or that the analysis in this opinion implies that a liberty interest must always rest on a property interest. One may call this approach cramped, as the majority does. It certainly does not give judges as much freedom to interpret the due process clause as would a general guarantee that government will act fairly. Less pejoratively put, the view of this opinion is less cramped than it is precise and restrained.
It would be disingenuous to suggest that the Court has not refined and interpreted the Paul v. Davis analysis of the liberty interest since that case came down. In Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), for example, Justice White followed an analysis that skillfully integrated both Justice Rehnquist’s insights as to the origins of liberty interests with a perhaps more active conception of the judicial role in defending them. It represents the Court’s current view of the liberty interest as it has evolved. That case stands for the proposition that while state or federal law creates the expectations that give rise to a liberty *1126interest, the process that is due to protect that interest is not limited to procedures mandated by that state or federal law.
Vitek involves the classic liberty interest against physical restraint and incarceration — the case involved the involuntary transfer of a convicted felon to a mental hospital — but its analysis is very appropriate to this case. This is because the acknowledgment that the creation of substantive liberty interests is effected by laws, state or federal, effectively solves the separation of powers problems that otherwise plague the majority’s opinion.8 This should not surprise us. Commentators have frequently criticized “substantive due process” as a doctrine that conveys excessive power to the judiciary, and what is really substantive due process analysis directed at the internal affairs of a coequal branch of the federal government is bound to cause separation of powers problems. But a procedural approach to due process in this context would have the court defer to the judgment of Congress as to whether to create liberty interests in otherwise statutorily unprotected employment in the Executive Branch, even while the court reserved the right to insure that the process due was observed, once those rights were created.
This approach also answers the possible objection that a relatively junior level lawyer in the Justice Department is not a cabinet officer and therefore we should just not worry about the separation of powers. Congress, this argument could go, just drew the line in the wrong place: Lawyers in the Justice Department should be protected, but very high level officials should not, for the separation of powers reasons above mentioned. But the law of *1127separation of powers provides the answer to this. The courts are extremely deferential to Congress and the Executive, the political branches, when separation of powers considerations are involved. That is the heart of the political question doctrine as expounded in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962): “Prominent on the surface of any case held to involve a political question is found [various factors or] ... the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government. ..”
So the court should defer here to Congress’ judgment that liberty interests— which do require some statutory support— should not be deemed to vest in certain jobs in the Executive. This court should not erase the line Congress has drawn between the excepted and competitive services, nor try to move it. Because of the separation of powers interests involved, that congressional line drawing should be both permitted and deferred to.
If cases such as Vitek, supra, which deal with state law, follow the analysis they do partly out of deference to the states and their primary responsibility in our federal system for criminal law and procedure, then Congress should be afforded at least as much deference in its role as the primary guardian of the separation of powers. In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), for example, the Court deferred to Congress’ primary responsibility to regulate the Civil Service in a similar manner. In Bush, an engineer employed by the National Aeronautics and Space Administration (NASA) was demoted for making statements to the press critical of NASA. While his administrative appeal was pending, he sued NASA for damages for violation of his constitutional rights under the First Amendment. The Fifth Circuit held, and ultimately the Supreme Court agreed, that the plaintiff had no cause of action under the First Amendment for retaliatory demotion in view of the available remedies under the Civil Service Commission regulations. The relationship between the federal government and its civil service employees was a special factor counselling against the judicial recognition of a damages remedy under the Constitution. This was so, notwithstanding the assumption that administrative remedies were not adequate to fully compensate the plaintiff for harms suffered. Id. at 1120.
The Court’s deference to Congress’ expertise in this area should not be taken merely as an acknowledgement of Congress’ experience and access to information, but as a recognition of Congress’ constitutional role in preserving the separation of powers. Writing for a unanimous court, Justice Stevens reasoned in Bush v. Lucas that given the existence of a long history of congressional development of Civil Service remedies and the comprehensive nature of those remedies, the Court should hesitate before it augmented those remedies with a new constitutional tort right of action. The crucial point that a correct analysis of the present case would have to bear in mind is that when Congress created exceptions to the competitive service remedies, it was acting on policy considerations, namely separation of powers and the autonomy of certain parts of the Executive Branch, of importance equal to or even greater than those which prompted its creation of those remedies in the first place. These congressional determinations must receive as much deference as its determination to provide an alternative remedy. See id. at 1124. If one denies this premise, then one is thrust into the dismaying position outlined above, pp. 1122-24, that it is impossible for Congress to create truly at will government positions, an argument that entails bad policy results and is ultimately incompatable with Paul v. Davis.
The majority opinion states that its decision “does not in any way implicate or constrain the executive’s plenary power to remove policy-making executive appointees” and asserts that “the executive’s removal power is governed by the appointments clause and its surrounding jurisprudence.” Maj. Op. at 1107 n. 14. For this construction and limitation of Executive *1128power three cases are cited. One involves the removal of a postmaster, confirmed by the Senate, whose removal that body unsuccessfully sought to prevent with the claim that the statute also required Senate consent for removal, Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926); one involves an appointment confirmed by “the quasi-legislative and quasi-judicial” Federal Trade Commission, Humphrey’s Executor v. United States, 295 U.S. 602, 608, 55 S.Ct. 869, 79 L.Ed. 1611 (1935); and one involves the “quasi-judicial” War Claims Commission, Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958).
It is difficult to understand the exact limitation on the application of its analysis for which the majority cites these cases. The only common element in the cases is that the officials in each were appointed and confirmed by the Senate, but the constitutional requirement of the President as head of the Executive Branch of the government that “he shall take care that the laws be faithfully executed ...” does not restrict him to faithfully executing the laws with officers confirmed by the Senate. The Constitution recognizes that “the Congress may by law vest the appointment of ... inferior officers ... in the President alone ... or in the Heads of Departments.” 9 This the Congress has done, and hordes of policy-making officers are appointed without Senate confirmation — they are in fact the principal sources of executing federal laws — and there is no more important body of inferior officers engaged in supervising the faithful execution of the laws than the lawyers in the Department of Justice who directly execute laws in the field. As for them, and all other inferior officers in the Justice Department, removal of executive officials from office is an executive function; the power to remove, like the power to appoint, is part of “the Executive power,” a conclusion which is confirmed by the obligation “to take care that the laws be faithfully executed.” Myers v. United States, 272 U.S. 52, 161, 164, 47 S.Ct. 21, 40, 41, 71 L.Ed. 160 (1926).
It may be that the majority’s decision conflicts with the Executive’s prerogatives as established by the appointments clause jurisprudence as well as Congress’ power to protect certain officials against at will removal. While it may show they are “at a loss to understand” the separation of powers argument made herein, the majority’s cryptic reference to the appointments clause does not begin to rebut it.
At the very least, the majority should have undertaken for the excepted service the same analysis of the legislative history that Justice Stevens does for the competitive service in Bush v. Lucas, 103 S.Ct. at 13-21. Without such an inquiry, the majority cannot be confident that its decision is not flying in the face of the policies Congress intended to advance by creating the exceptions to the competitive Civil Service remedies. And if the Court reasoned, unanimously, that those policies deserved to be deferred to, notwithstanding the fact that a Bivens action would have lain had there been no such policy, then it follows that an equally important policy, albeit expressed by exceptions, also deserves to be deferred to. It is irrelevant that in one case the congressional policy preempts a Bivens action, and in this case it should preempt a due process claim. The policies of Congress are not addressed, let alone deferred to, by the majority. In my opinion the correct disposition of this case would find that Congress never intended to lay the basis for liberty interests in employment in the excepted service and so a member of such a service, such as Jane Doe, could not bring the action the court here recognizes.10
*1129IV.
The presence of these important constitutional separation of powers issues in our case is alone enough to distinguish it from those on which the majority relies. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1979), for example, dealt with the relationship of the City Manager of the town of Independence, Missouri with the local police chief. By contrast, this case deals ultimately with the relationship of the President of the .United States and the Attorney General to the most powerful and selective law enforcement agency in the world, the Department of Justice, not to mention the rest of the excepted service. In my opinion, this court should pause before it blithely applies to the government of the United States an analysis used in a case involving a local municipal government.
The majority, however, apparently wishes us to ignore the analysis of Paul v. Davis because of a footnote in Owen, 445 U.S. at 633 n. 13, 100 S.Ct. at 1406 n. 13, and other circuit court cases. See Maj.Op. at 1107. Ordinarily, one does not have to go to the footnotes to figure out the holdings of cases. But even if we do, we find the liberty issue Justice Brennan is referring to is that raised on pages 45 and 46 of the Respondent’s Brief in Owen. Consulting that brief one finds there is no discussion at all of whether an at will city *1130government employee has suffered a harm to a liberty interest by being dismissed amidst reputation-damaging allegations, notwithstanding the fact that he was entitled to no procedural protections from dismissal under city ordinances. The issue there was whether any causal connection existed, and whether a causal connection had to exist, between the city manager’s dismissal of the plaintiff and the city council’s issuing reports one week later that damaged his reputation. Did the reputation-damaging remarks occur in the course of termination, as Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1974), seems to require? This is a good question, and the district court might have had to grapple with it on remand if, as the partial dissent suggests, it had read the appellant’s complaint that the Justice Department issued reputation damaging reports “upon her removal” to mean that it issued them almost two years after her removal, thus avoiding the bar imposed by the statute of limitation. However, it would take even more stretching to say that' on the basis of this footnote one should, in effect, reject the majority analysis in Paul v. Davis and adopt that of its dissent.
At this point Justice Rehnquist’s and Justice Brennan’s views in Paul v. Davis should be contrasted to support the analysis herein that the majority in Paul explains the outcome of the majority opinion in this case less than does the dissent in Paul. The former has already been set out in some detail. The latter can be briefly put. Justice Brennan essentially claims that “... [The Fourteenth] Amendment, which is only designed to prohibit ‘state’ action, clearly renders unconstitutional actions taken by state officials that would merely be criminal or tortious if engaged in by those acting in their private capacities.” 424 U.S. at 716, 96 S.Ct. at 1167. Thus Justice Brennan would have ruled that the defamation of a private individual by the government, as in Paul, violated that citizen’s liberty interest in reputation. The due process clause protects individuals against such government torts and crimes, in Justice Brennan’s view. It is fair to say that Justice Brennan does not view these crimes and torts as limited to those defined by the common and statutory law of any particular state. Indeed, it is unclear that a state’s law of torts or crimes is relevant at all, in Justice Brennan’s view, to the constitutional inquiry. Id. at 715, 96 S.Ct. at 1167. As one reflects on this reading of the due process clause one cannot avoid the conclusion that whatever it may be, it is certainly not cramped. Under Justice Brennan’s dissenting view, it is the state action element that turns what would otherwise be the tort of defamation into a violation of a liberty interest. This is really the view the majority here adopts.
Paul v. Davis, however, holds that if the state just defames a person, that person has not had her liberty interest violated. And under Board of Regents v. Roth, supra, moreover, if the state just fires a person (or declines to rehire him) he has not had his liberty interest violated, unless he had a protected interest in his job. But, in the view adopted by the majority, if the state does both things to an individual (either at the same time or perhaps within one or two years of each other), then that person’s liberty interest (in reputation) has been violated. This seems odd. The majority has pointed to dicta in cases in this circuit that do indeed suggest this view. This view cannot be reconciled, however, with the majority position of the Court in Paul v. Davis. What can be said is that the law the majority would apply here amounts to holding that when a state or federal government commits the tort of defamation against someone, that does violate the liberty interest in reputation, as Justice Brennan argued. The “plus” requirement in the “reputation plus” test then becomes no more than a prefunctory bow towards Paul and Roth, as if what *1131those -cases really stand for is an arbitrary decision to apply Justice Brennan’s analysis only to the government employment context.
To put this point another way: What is the principled reason for applying the view that defamation by the state violates a liberty interest, but only in the context of termination from government employment? There may be a rationale for this limitation that is consistent with the Court’s opinion in Paul v. Davis, but I have not been able to find it.11 If one does exist, it should be in the majority’s opinion, but it is not. The only other explanation for the straight “reputation plus” test I can think of is that holding any government job creates ipso facto some sort of property right that for some reason is necessary before one can assert a liberty interest. But such a position, which is rather like the one the majority accuses this dissent of espousing, has nothing to be said for it. It really would rest on a misreading of Paul.
Thus it seems the test as currently applied in the other circuits, and about to be applied here, is merely Justice Brennan’s dissent in Paul arbitrarily limited to the context of termination from government employment. It therefore seems this view verges on seeing the “plus” requirement in the “reputation plus” test for a liberty interest to exist as just an unprincipled and unfortunate obstacle in the way of a more general application of Justice Brennan’s theory of the due process clause. Because in my view that theory lacks any compelling precedential support, because it flies in the face of the text and history of the Clause and because it represents merely an attempt to circumvent the clear meaning of Paul v. Davis, I decline now to embrace it.12 Therefore I respectfully dissent.
. See Complaint (J.A. 1, 16); Doe v. Dept. of Justice, No. 83-1499 (D.D.C. Oct. 31, 1983) (mem.) J.A. 86; Brief of Appellant 2, 34-35.
. 94 Stat. 2165 (codified at 5 U.S.C. § 5596 (1981)).
. Complaint H 2. However, it is impossible to tell what portion of the amount in controversy pleaded is attributable to the Back Pay Act claim.
. The majority accuses the dissent of raising the jurisdictional issue "at the eleventh hour,” even though it was not raised by the parties. See Maj.Op. at 1101. What the majority only grudgingly recognizes is that it is the duty of this and every court to raise jurisdiction at any time it may appear to be in doubt, sua sponte if necessary. Athens Community Hosp., Inc. v. Schweiker, 686 F.2d 989 (D.C.Cir.1982) (Courts may raise jurisdiction sua sponte)-, Ilan-Gat Engineers, Ltd. v. Antigua Intern. Bank, 659 F.2d 234 (D.C.Cir.1981) (Courts always have jurisdiction *1122to determine their jurisdiction); Potomac Passengers Ass'n v. Chesapeake & O. Ry. Co., 520 F.2d 91 (D.C.Cir.1975) (A court, whether trial or appellate, has a duty to notice a failure of subject matter jurisdiction on its own motion at any time during the proceedings); U.S. v. Anderson, 464 F.2d 1390 (D.C.Cir.1972) (a defect in jurisdiction may not be ignored); Whitney Nat’l Bank v. Bank of New Orleans & Trust Co., 323 F.2d 290 (D.C.Cir.1963) (Jurisdiction is a threshold question which must be examined).
. In fact, Congress, through the House Post Office and Civil Service Committee, is conducting an investigation which may lead to legislation which would confer due process protection on members of the excepted service. See, Mathews, Lawyer’s Firing Prompts Hill Inquiry: Bill Considered to Aid ‘Excepted Service’ U.S. Employees, Washington Post, Dec. 7, 1984 at A5. The majority opinion proposes to accomplish this legislative act before Congress has the chance to do so.
. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
. Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977).
. It is worth noting that there is no necessary tension between this view in Justice White’s opinion and the view that certain fundamental liberties exist whether they have been recognized or not by state or federal legislatures. It is really just an application of the concept of legitimate expectations to the liberty interest. Some liberties we might expect just by virtue of being free and moral individuals; yet others we develop doubtless only because governments pass laws and set up institutions. Once laws are enacted, expectations are created where none existed before, e.g., for parole, or some government benefit, like a job. The question then becomes how much process is due to protect such expectations as are created.
The performance appraisal criteria applying to Schedule A excepted civil servants do not supply any procedural protections against at will discharge. See 5 C.F.R. §§ 430.101, 430.201. In particular, the majority points to no statute or regulatory provision that requires a hearing. Moreover, far from supporting the majority's opinion, Committee to Protect First Amendment v. Bergland, 626 F.2d 875 (D.C.Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3012, 65 L.Ed.2d 1113 (1980) holds that Schedule A protections, such as they are, do not prevent an at will discharge for political reasons where a job has significant policy making components. Id. at 880-81. So Schedule A status was held in this case to be insufficient to protect against an at will discharge. Id. at 880. As to what the dicta that Schedule A employees enjoy "de facto tenure” means, one can only guess. Id. It appears to mean merely that Schedule A employees are usually out of harm’s way when Administrations change. But the court continues ”[h]ow-ever, if a position does have significant policy-making components, it cannot be given Elrod —constitutional status merely on the basis of hopeful expectations.” Id. The analysis thus turns on expectations, as does the analysis in this dissent, and the majority has pointed to nothing to suggest Jane Doe had a reasonable expectation in any certain protection granted to her by statute or regulation, against discharge, without a hearing and with reasons given, for unprofessional behavior. Congress created no such expectation with its laws, nor did the Department of Justice with its regulations. Moreover, it is unclear what the doctrine articulated in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1975), that non-policymaking employees in the Executive cannot be dismissed for purely patronage, political reasons, has to do with this case. In the view of this dissent, such an employee in the excepted service could be dismissed without a hearing and with reasons given, for unprofessional behavior. Moreover, there is nothing in the majority’s analysis that limits it to Schedule A and not Schedule C members of the excepted service. Therefore it is unclear what, if anything, the majority intends to make of this distinction.
In this case, it is my view that the clear exceptions to the usual civil service procedural protections, and Congress' sound policy reasons for making some Executive jobs at will, justify limiting any expectation a person could have in employment in the Justice Department. Any such expectation must be conditioned on the ability of the appropriate official to fire the employee at any time, for any reason, without a hearing.
. U.S. Const, art. II, § 2 provides:
“[The President] shall have power ... [to] nominate, by and with the advice and consent of the Senate, ... all ... officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law ... but the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone ... or in the heads of departments.”
. This circuit has not previously committed itself to the application of Paul v. Davis that the majority follows. In Mosrie v. Barry, 718 F.2d *11291151, 1161 (1983), Judge Bork writing for the Court said
For a defamation to give rise to a right to procedural due process, it is necessary — we need not say when it is sufficient — that the defamation he accompanied by a discharge from government employment or at least a demotion in rank and pay. The latter, more general category requires that the government either have formally deprived one of a legal right, such as the right to purchase liquor or to drive, or have so severely impaired one’s ability to take advantage of a legal right, such as a right to be considered for government contracts or employment or a right to seek non-government employment,8 that the government can be said to have "foreclosed” one’s ability to take advantage of it and thus extinguish the right.
8 Of course, we assume nothing about what such rights can be found in federal or in state law. (Emphasis added.)
The qualifiers emphasized above in Judge Bork’s analysis, especially coming as they do after a thorough and accurate presentation of the law in Paul v. Davis, far from supporting the majority’s opinion, actually cast doubt upon it. These qualifiers say precisely, first, that the court is not taking a position on whether defamation accompanied by a discharge from government employment is sufficient to give rise to a procedural due process claim, and second, that it is not taking the position that foreclosure from future government or non-government employment is a right which can in fact be found generally and across the board, for every case, in federal or state law. Mosrie therefore deliberately leaves open the question this court now addresses.
Conset Corp. v. Community Services Administration, 655 F.2d 1291 (D.C.Cir.1981) and Old Dominion Dairy Products v. Secretary of Defense, 631 F.2d 953 (D.C.Cir.1980) are both government contracting cases. Contracting with the Department of Defense is regulated by the extremely complex and detailed Defense Acquisition Regulation (DAR), 32 C.F.R. Vols. I — III (1979) that provides, inter alia, for grounds upon which a contract may be terminated. See DAR 1-903.1 (32 C.F.R. 1-903.1). This is a case where the federal government creates liberty interests in contracting, much as a state may in parole, by setting up an elaborate statutory and regulatory system that provides for some interest, generates expectations concerning it, and governs it with law. Old Dominion can be seen therefore as holding, quite analogously to Vitek, supra, that once the state creates these liberty interests, grounded on the expectations created by establishing a legal framework, it must accord those interests due process protection. Similarly, in Conset Corp. v. Community Services Administration, 655 F.2d 1291 (1981), there would have been no interest that required due process protection but for the statutes and regulations establishing and controlling the Community Service Administration, and the contracts and grants made pursuant to them. Had Congress expressly provided for the CSA to be able to revoke grants and contracts at any time, for any reason, then this case might be analogous. As it is, it is not. Moreover, it does not raise the separation of powers questions at issue in our case.
It can be conceded, moreover, that the dictum in Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977) makes a point similar to that deduced from footnote 13 in Owen. But Codd, like Owen, is about a non-tenured .city employee, so the separation of powers problems were not raised before let alone addressed by the Court. Therefore it is unnecessary and ill-advised to take the dictum from Codd and extend it to federal employees in the excepted service. See supra at 1122.
. Unless, of course, state or federal law creates liberty interest expectations by establishing procedural protections. That is not the federal at will employment case.
. In taking this step, moreover, the majority proceeds without even the full benefit of our adversarial system of adjudication. As Judge Scalia recently wrote in a closely related case, "[t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). See also Bartel v. F.A.A., 725 F.2d 1403, 1415 n. 21 (D.C.Cir.1984). In Carducci the court decided not to reach the question of whether the entitlements of the Civil Service Reform Act were the exclusive body of status and tenure protections accorded to federal employees in the competitive service which defined the scope of any property interests. It was a question "of first impression ... and major importance” to all employees in the competitive service, just as this case is to the excepted service. In the present case the court extends due process protection to all employees in the excepted services, a course with important consequences to the separation of powers and the efficient execution of the duties of the Executive Branch, without the substantial assistance of briefing on these points. The due process question has been briefed and argued, but not as fully as it should be, given the importance of this case. This unfortunate circumstance arises because the court raised the due process claim sua sponte by reconstructing the appellant’s complaint in the course of reviewing the district court's Fed.R.Civ.P. 12(b)(6) dismissal of the original, flawed pleading. Thus the court reaches an important constitutional question without a fully adequate consideration in an adversarial context.