dissenting:
I would reverse the district court’s grant of summary judgment in favor of the ap-pellees and direct that court to dismiss their complaint. In my view, St. Elizabeth's Hospital's practice of hiring its former mental patients by appointing them under 5 C.F.R. § 213.3102(h) (1984) (sub-chapter (h)) to positions in the excepted service without requiring them to meet the standards necessary for appointment in the competitive service, and without their obtaining all the benefits of the competitive service, is consistent with the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (1982), and does not improperly discriminate against those employees on the basis of their former institutionalization in the Hospital.
Ordinarily, an individual obtains an executive branch position in the federal civil service by passing a competitive examination that establishes his or her qualifications for the position sought. After completing a probationary period, an employee thus appointed becomes entitled to the rights and benefits that the civil service system provides. Congress has recognized, however, that there are certain categories of federal positions that should not be subject to the competitive appointment requirements of civil service and therefore has provided for the "excepted service” to cover those positions. 5 U.S.C. § 2107 (1982). Persons appointed to the excepted service do not receive the same rights and benefits as the employees in the competitive service.
In its governing regulations, the Office of Personnel Management has specified a number of positions that are in the excepted service, which may be filled without following the regular procedures for appointment in the classified service. Two of these categories cover individuals who, because of their handicaps, would not be qualified for initial appointment in the competitive service. These provisions are 5 C.F.R. §§ 213.3102(t) and (u), which respectively cover “mentally retarded persons” and “severely physically handicapped persons.” Employees in either of these two categories may be converted to competitive status “[u]pon completion of 2 years of *72satisfactory service under this authority....”
The present case involves subsection (h) of the regulation, which authorizes the appointment at federal mental institutions of former patients of those institutions, who have been discharged and have been certified by medical authority “as recovered sufficiently to be regularly employed but it is believed desirable and in the interest of the persons and the institution that they be employed at the institution.” All of the appellees in this case are in that category. They were appointed to positions at St. Elizabeth’s Hospital without having to meet the competitive civil service requirements that other persons seeking the same position would have had to satisfy.
Specifically, the appellees were not required to pass a competitive examination, and they were given only indefinite appointments that provided some, but not all, of the rights and benefits that competitive service employees have. They may obtain government health and life insurance, but do not have the tenure rights and all the protections given in the Civil Service Reform Act of 1978, 5 U.S.C. § 2301 et seq. (1982), to employees in the competitive service. Indeed, some of them might not have been eligible for competitive appointment to their present positions, since by statute some (which the appellees fill) may be filled only by persons entitled to veterans preference (if such persons are available). 5 U.S.C. §§ 2108(3); 3310 (1982).
The differences between subsection (h) and subsections (t) and (u) are substantial. The latter two subsections deal with persons who are disabled at the time of their appointment and therefore would not qualify for the job under the usual competitive examination procedures. Those individuals are given temporary appointments but, if after two years they have demonstrated their ability to perform the job, they are converted to the competitive status and have the rights and benefits they would have obtained initially had they not been disabled from passing the competitive examination.
Persons given indefinite appointments under subsection (h), on the other hand, are former patients of the mental institution who no longer are disabled at the time of their appointment, but whose well-being favors their employment at the institution with which they are familiar. Some of those individuals might have qualified initially for appointment in the competitive service by taking and passing the usual examination, and any of them could have obtained such competitive permanent positions after appointment by following that course. Indeed, a number of former patients of St. Elizabeth’s, originally appointed under subsection (h), have done precisely that and now hold permanent appointments in the classified service with the accompanying rights and benefits. Although the appellees might have obtained a classified position after their appointment by taking and passing the same competitive examination that other nondisqualified persons routinely take, they have not attempted to do so.
The appellees’ position is that because they perform the same work as other employees who occupy identical positions in the competitive service, they are entitled to the same benefits the other employees have, and that the denial of those benefits illegally discriminates against them on the basis of their former mental disability. The different treatment of the appellees from the other employees performing the same work, however, results not from the former mental disability of the appellees but from the fact that they were appointed without having to comply with the requirements for the competitive service. In order to achieve the benefits from employment in an environment with which they had become familiar and in which they were comfortable, the government permitted the appellees to obtain their positions without taking and passing the competitive examination that other employees were required to take to obtain the same jobs.
In my view, the government justifiably treated these two categories of employees differently in not giving to the appellees all *73the civil service protections and benefits of the employees who obtained their positions through the competitive examination process. The difference in the nature of their appointments warranted the different rights and benefits given to each category. Similarly, I conclude that the different situations of the employees appointed under subsection (h) and those appointed under subsections (t) and (u) justified the conversion of the latter employees but not the former to competitive positions after two years if they had demonstrated their ability satisfactorily to perform the duties of the position despite their handicaps.
I do not read the Shirey case, upon which the court relies, as supporting its conclusion that the limited protections and benefits given the employees appointed noncompetitively under subsection (h) constituted improper discrimination against them. Shirey involved a deaf employee who was given a temporary appointment under subsection (u). At the time of the appointment, subsection (u) did not provide that handicapped employees appointed thereunder would be converted to competitive status after two years of satisfactory service. Following four-and-a-half years of satisfactory service, Shirey was separated in a reduction in force. Because he was not in the competitive service, Shirey had no right to “bump” employees who had lower retention status, a right competitive employees had. After Shirey was discharged, subsection (u) was amended to add the two-year conversion provision.
This court held that the affirmative action provision of the Rehabilitation Act of 1973, section 501, 29 U.S.C. § 791(b) (1976), did not permit the agency “to permanently deny Mr. Shirey the job benefits afforded his co-workers solely because he had been hired under excepted service authority, four and a half years earlier, on account of the severity of his physical disability.” 670 F.2d at 1200. The court
emphasize[d] the narrow effect of this decision. The legal position of disabled employees like Mr. Shirey has changed significantly since January 1978— In March 1979 Executive Order 12125 gave handicapped excepted service employees relief basically identical to that Mr. Shi-rey seeks before this court. Finally, Mr. Shirey was the only handicapped excepted service employee at Godard to lose his job in the January 1978 reduction-in-force. In sum, Mr. Shirey’s case seems to have arisen in the course of discovering unanticipated flaws in an otherwise praise-worthy government program for employing severely handicapped individuals, and we are confident that the system now in place will produce no more instances of discrimination as egregious as this one.
Id. at 1205 (footnote omitted).
Unlike the subsection involved in Shirey, subsection (h) has not been amended to give employees in the appellees’ situation the relief they are seeking through judicial intervention. Moreover, also unlike Mr. Shirey, the appellees were not handicapped at the time of their appointment, but were given favored treatment because of a prior handicap that had ceased. As I have indicated, I think that the latter fact is a sufficient distinction that justifies the different treatment the government has given these differently situated groups of employees. In view of the “narrow effect” of the Shi-rey “decision,” the broad language in that opinion should not be applied to the significantly different facts of the present case.
As a policy matter, the result reached in the present case is commendable. My difficulty with that result is that I do not think it reflects a proper use of judicial power. Congress has given the President broad discretion by regulation to administer the laws regulating government employment and therefore to determine the bases for appointments to positions in the executive branch and to define the rights and benefits of employees so appointed. 5 U.S.C. § 3301 (1982). The President in turn has delegated this authority to the Office of Personnel Management. Section 601, Exec. Order No. 11,222, 3 C.F.R. § 310 (1965), reprinted in 18 U.S.C. § 201 app. at 139 (1982). If the type of appointment *74under subsection (h) and the rights and benefits of employees appointed under that subsection are to be changed, I think such changes must come from the Office of Personnel Management and not from the courts.