This case presents our first opportunity to reach the merits of a federal employee's claim that he suffered employment discrimination on the basis of a severe physical disability.1 We hold that permanent denial of the job tenure protections afforded other employees solely because of an employee's handicap violates Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791(b) (1976).

When Edward Shirey graduated from college in 1973 with a Bachelor of Science degree in business administration, he applied for an entry-level position as a computer systems analyst at the Goddard Space Flight Center, run by the National Aeronautics and Space Administration (NASA). Mr. Shirey is deaf, and officials at Goddard applied to the Civil Service Commission to "except" the position he would fill from normal competitive appointment processes.2 Upon receipt of Commission approval and certification of Mr. Shirey's ability to do the tasks required for his job, in August 1973 Goddard hired Mr. Shirey as a trainee, on a nine-month probation trial. For the next four and a half years Mr. Shirey worked alongside nonhandicapped analysts and mathematicians in Goddard's Management Systems Office. The record attests to his success on the job: he successfully completed his probation period and received a promotion shortly thereafter; his superiors wrote letters praising both his work as an analyst and the special efforts he made to help his hearing colleagues learn to work with him. Apart from teaching Mr. Shirey's co-workers some manual communication skills and making sure that Mr. Shirey would not have to work alone, Goddard incurred no extra expense because of Mr. Shirey's inability to hear.3

In October 1977 NASA announced a reduction-in-force, beginning January 20, 1978, which would abolish Mr. Shirey's position along with 82 other positions at Goddard. Goddard employees who had been appointed to their positions through the competitive process had a number of job protection rights. They could "bump" employees with lower retention status from jobs that had not been abolished, and they received re-employment priority rights.4 Mr. Shirey had completely different-and inferior-job protection rights, because he had been "excepted" from the competitive appointment process.5 Unlike other members of his work group, who were able to find other positions at Goddard, Mr. Shirey was separated from the agency. He sought other employment in the federal government, but was unable to obtain any for two years.

After an unsuccessful administrative appeal,6 Mr. Shirey brought suit in the District Court against responsible officials of the Civil Service Commission (now the Office of Personnel Management), NASA, and Goddard. He claimed that NASA's employment system, which denied him meaningful job tenure protections and promotion opportunities afforded other employees, violated the Veteran's Preference Act, 5 U.S.C. § 3502 (1976), the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. (1976 & Supp. III 1979), and the Fifth Amendment's due process and equal protection guarantees. Although it held that Mr. Shirey had a cause of action to enforce Sections 501, 504, and 505 of the Rehabilitation Act, 29 U.S.C. §§ 791, 794, 794a (1976 & Supp. III 1979), the District Court granted summary judgment for the government defendants on all counts. Because we disagree with the District Court as to the substantive scope of the Rehabilitation Act's guarantee of affirmative action for the handicapped in federal government employment, we reverse.7

I. Federal Employment of the Severely Disabled

The principal question at issue in this case is whether the Rehabilitation Act of 1973 requires the federal government to cease any discrimination against qualified handicapped employees. Our effort to resolve this question is complicated somewhat by the fact that Mr. Shirey's troubles were entirely due to the features of an administrative program under which he was hired, a program designed to promote federal employment for handicapped persons.

The government program under which Mr. Shirey was hired predated the Rehabilitation Act, and for many years it was the most important element in federal efforts to hire the handicapped. But the Rehabilitation Act of 1973 represented a powerful congressional initiative which, to a large extent, eclipsed and supplanted the prior efforts of the civil service authorities. The following sections of this opinion demonstrate, however, that those authorities have been slow to alter their programs in response to the new law. As a result, the program under which Mr. Shirey was hired (and which governed the conditions of his employment) failed to meet all the requirements of the Rehabilitation Act.

The program under which Mr. Shirey was hired began as an administrative experiment in 1964, and its structure was largely shaped by the overall structure of the federal employment system. Civil service positions are divided into two categories: competitive service positions and positions excepted from the competitive service. 5 U.S.C. §§ 2102-2103 (1976 & Supp. III 1979).8 Congress has excepted some positions from the competitive service by statute9; others are excepted because they require Senate confirmation of appointees.10 Furthermore, the President may prescribe rules for "necessary exceptions of positions from the competitive service(.)" Id. § 3302(1) (1976). The President, in turn, has delegated this authority to the Civil Service Commission and its successor, the Office of Personnel Management. Executive Order No. 10577, Rule VI, 3 C.F.R. 222 (1954-1958 Comp.), reprinted as amended, 5 U.S.C. § 3301 app. at 375 (1976).

Pursuant to the President's delegation of authority, the Civil Service Commission created a large number of excepted positions over the course of the years, linked principally by its determination that it would not be "practicable" to fill them by competitive processes.11 In 1964 the Commission included among these an experimental exception for positions filled by persons with severe physical handicaps. 29 Fed.Reg. 498 (1964) (codified at 5 C.F.R. § 213.3102(u)); cf. 28 Fed.Reg. 10327 (1963) (codified at 5 C.F.R. § 213.3102(t)) (mentally retarded persons). Three years later the Commission made these authorities permanent, and it removed numerical limits on the number of positions agencies could fill with physically disabled or mentally retarded persons. 32 Fed.Reg. 10635 (1967).

Subsections (t) and (u) are only two of many authorities for filling positions outside of the competitive service. Many of these identify jobs wholly different in character from those performed by competitive service employees12 or specialized part-time or seasonal work.13 Subsections (t) and (u) differ from almost all other excepted service positions because they do not define the type of position to be filled, only the medical condition of the employee.14 Subject to approval by the central civil service authority, see 5 C.F.R. § 213.102 (1981), any position in the civil service could be "excepted" for a handicapped person, regardless of the job duties, so long as the appointee was qualified to perform them.15

In July 1969 the Civil Service Commission launched on its own initiative a program to promote what it called "selective placement," or "the careful matching of the abilities of the handicapped persons with the duties of particular positions." Federal Personnel Manual 306-3 (July 1969). As part of this program the Commission attempted to educate federal employers about the usefulness of subsection (u) authority as a means "to provide for continuing employment of severely handicapped people" by "match(ing) job tasks and work environment to accommodate the particular disabilities of a severely handicapped person." Id. at 306-14 (May 30, 1972). After the Commission began its 1969 campaign, employment of handicapped persons under excepted service authority increased substantially.16 It was under this program that Mr. Shirey was hired, using subsection (u) to bypass the competitive appointment system.

The Rehabilitation Act of 1973 was not the first congressional initiative relating to federal employment of the handicapped. In 1948 Congress enacted a strongly worded statute banning discrimination in federal employment,17 but it was subsequently revised so that by the time Mr. Shirey lost his job it did not apply to his case.18 The Rehabilitation Act of 1973, however, was the first major federal statute designed to provide assistance to the whole population of handicapped persons. As part of that effort, Title V of the Rehabilitation Act addressed discrimination against the handicapped. Section 501 required all departments and agencies in the Executive Branch to submit to the Civil Service Commission "an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals," which would be approved by the Commission if it offered "sufficient assurances, procedures and commitments" to accomplish the affirmative action goals. 29 U.S.C. § 791(b) (1976).19

Other sections of the 1973 Act created a board to promote elimination of architectural and transportation barriers in federal, state, and local government facilities, including public housing and other institutions, id. § 792, provided for affirmative action clauses in federal procurement contracts, id. § 793, and prohibited discrimination against any "otherwise qualified handicapped individual" in programs receiving federal financial assistance, id. § 794. The Civil Service Commission did not specifically revise its regulations concerning federal employment of the handicapped when the Rehabilitation Act went into effect. Instead, it designed a model affirmative action plan for federal agencies, see Federal Personnel Manual 306-C-1 et seq. (April 20, 1978), and it also stepped up its efforts to educate responsible federal officials about the special needs of handicapped employees and applicants for employment.20

In 1978 Congress took a second major initiative in the area of federal employment of the handicapped with a set of amendments to the Rehabilitation Act and other laws affecting the handicapped. Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub.L.No.95-602, 92 Stat. 2955 (1978 Amendments). The most important of these, as far as this case is concerned, is a new Section 505 added to the Rehabilitation Act, stating in part:

The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 * * *, including the application of sections 706(f) through 706(k) * * *, shall be available, with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint. In fashioning an equitable or affirmative action remedy under such section, a court may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy.

29 U.S.C. § 794a(a)(1) (Supp. III 1979). Section 505 also set up a similar relationship between Section 504 of the Rehabilitation Act and Title VI of the Civil Rights Act of 1967, id. § 794a(a)(2), and it provided for attorney fee awards to prevailing parties in actions under both Section 501 and Section 504, id. § 794a(b).21 As before, the Civil Service Commission did not revise its regulations concerning federal employment of the handicapped in response to the 1978 Amendments.22

C. Interrelation of the Rehabilitation Act and the Subsection (u) Hiring Program

A brief summary of the material discussed in the foregoing sections suffices to highlight the issues raised by this case. Since World War II both Congress and the civil service authorities have pursued laudable efforts to ensure that the federal government provides employment opportunities to the severely handicapped. Nevertheless, the emphases of the programs, and the understanding behind each program of what harm required action, varied from program to program over time. Until the mid-1960's both Congress and the Executive Branch seemed to focus on removing artificial impediments to employment of the handicapped through normal competitive processes. Beginning in 1964, however, the Civil Service Commission increasingly relied on using excepted service authority to place the most severely handicapped in appropriate federal positions. This course of action gave federal employers a great deal of flexibility in matching specific applicants to jobs that they could perform, and it guarded against hidden biases in the competitive examination process.23 On the other hand, relying on excepted service appointments also operated to deny important job protection and promotion benefits to those handicapped persons who were eventually employed.

In 1973 Congress mandated affirmative action for handicapped persons, not only in hiring but also in placement and advancement, throughout the federal government. And, although the original Rehabilitation Act was silent on the matter, the 1978 Congress confirmed that the federal courts as well as civil service authorities should have a role in enforcing its affirmative action guarantee. Furthermore, Congress demonstrated that it perceived discrimination against the handicapped as fundamentally similar to other forms of discrimination-on the basis of race, sex, national origin, or religious belief-addressed in Title VII of the Civil Rights Act of 1964. At the outset nondiscrimination against the handicapped was perhaps seen as merely fair play and good federal policy, a recognition that the disabled had performed valuable services during the war and that handicapped veterans should have a role in postwar society,24 but by 1978 Congress had made it clear that nondiscrimination was an obligation, not a gratuity.25

The civil service programs that began in 1969 certainly went a long way toward discharging that obligation. Not only did the government hire more severely handicapped employees, see notes 16 and 18 supra, but it also made important progress in opening up a variety of jobs to the handicapped. A Chain of Cooperation, supra note 16, at 6-7. The affirmative action plans drawn up after 1973 surely deepened federal officials' awareness both of opportunities for employing the handicapped in their departments and of the subtly discriminatory aspects of day-to-day life on the job. Furthermore, the Civil Service Commission's programs show an appreciation for the number of physical and mental conditions that at times exacerbate the effect of physical disabilities.26 Nevertheless, until 1979 those employees classified as "severely" handicapped and given excepted service appointments had long-range employment prospects and protections significantly different from those of their co-workers in similar or identical jobs. The fact that this aspect of the system was modified in 1979 by Executive Order, see note 22 supra, suggests that we are not alone in suspecting some dissonance between the Rehabilitation Act of 1973 and the pre-existing programs that, in the absence of specific efforts to interpret the statute, bore the burden of implementing it.

Mr. Shirey's federal employment occurred during a period of rapid change in the status of the handicapped as federal employees. He was hired shortly before the Rehabilitation Act was first passed and separated shortly before it was amended in 1978. The record does not disclose why he received an excepted service appointment rather than undergoing a competitive examination with special accommodations,27 but soon after he began working at Goddard NASA instituted an affirmative action plan that relied heavily on subsection (u) appointments to meet its obligation under the Rehabilitation Act.28 Had Mr. Shirey been more fortunate, perhaps, the reduction-in-force might have come 15 months later, by which time he could have attained full competitive service status under Executive Order 12125, see note 22 supra. However, he was not so fortunate, and thus he presents for our decision the question whether an agency's refusal to provide equal job protection and promotion rights to its severely handicapped employees violated Section 501 of the Rehabilitation Act.

In order to decide whether the Rehabilitation Act made the scheme under which Mr. Shirey lost his job unlawful, we must first address briefly the role of federal courts in enforcing Section 501. As an initial matter, we recognize that Section 501 as it was first enacted did not expressly provide for any involvement by the courts in the affirmative action effort. But even before passage of the 1978 Amendments handicapped federal employees could seek judicial review under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1976), of any final administrative action that adversely affected them, and one of the claims they could raise in that posture was that the action violated Section 501. See Ryan v. Federal Deposit Insurance Corp., 565 F.2d 762, 763 (D.C.Cir.1977); McNutt v. Hills, 426 F. Supp. 990 (D.D.C.1977); cf. Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1080 (5th Cir. 1980) (no private right of action under Section 503, but the handicapped have "the right to petition those who administer federal contracts to perform their duty"). See also Coleman v. Darden, 595 F.2d 533, 539-540 (10th Cir. 1979).

Insofar as Section 505 refined and strengthened the remedies available to enforce pre-existing rights, it applies retroactively to proceedings pending at the time it became effective. See Bradley v. Richmond School District, 416 U.S. 696, 711-715, 94 S. Ct. 2006, 2016-18, 40 L. Ed. 2d 476 (1974); Sampeyreac v. United States, 32 U.S. (7 Pet.) 222, 239, 8 L. Ed. 665 (1833); cf., e.g., Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87, 88 (4th Cir. 1978) (applying Section 505 retroactively to an action under Section 504). Section 505's incorporation of Section 717 of Title VII provides further reason to hold that the procedural aspects of Section 505 apply retroactively, because we reached the same conclusion about Section 717 after it was enacted in 1972. See Womack v. Lynn, 504 F.2d 267, 269 (D.C.Cir.1974). For these reasons the District Court held, and we agree, that since Mr. Shirey had exhausted his administrative remedies as contemplated by Section 505, since his claim was pending when Section 505 became effective,29 and since he met the 30-day time requirement in Section 505 for filing suit after denial of an administrative complaint, he is entitled to have his case considered according to the procedural and remedial scheme of Section 505. See Memorandum Opinion of the District Court at 7-8 (App., supra note 3, at 12a-13a).30

Section 505 might certainly have been drafted so as to make its reconciliation with Section 501 an easier task, but an honest attempt to interpret the two statutes together helps define some procedural aspects of Section 501 cases. First, the District Courts must conduct trials de novo on claims of discrimination on the basis of handicap in government employment. When Section 717 was passed we made an extensive survey of its legislative history and policies, and we determined that it required de novo trials. Hackley v. Roudebush, 520 F.2d 108 (D.C.Cir.1975). There is no warrant to construe Section 505, which incorporates Section 717, any differently. Second, the well developed law of burdens of proof and remedies under Title VII must henceforth apply to claims under Section 501 as well.

Third-and most important as far as the instant appeal is concerned-Section 505 contemplates that courts will stand on equal footing with administrative authorities in defining and fashioning affirmative action plans.31 Any other interpretation would strain the plain meaning of the final sentence of Section 505(a)(1), which clearly contemplates that a court has discretion to grant a wide variety of relief under Section 501, including an "affirmative action remedy." A co-equal role for courts is also consistent with the allocation of authority to identify discrimination and fashion remedies for race and sex discrimination in federal employment under Title VII.32 Furthermore, independent judicial definition of the terms of Section 501 is consistent with common sense and good policy. The courts have considerable expertise in identifying discrimination-because of their responsibility to enforce Title VII in the private sector as well as the public sector, they confront a vast number of claims presenting different fact situations. The courts have been able to devote more time and attention to individual cases than have the Office of Personnel Management or the Equal Employment Opportunity Commission, and, more importantly, compulsory process and discovery are available to federal litigants to help develop a factual record on the question of discrimination. The judiciary's independence, moreover, makes its efforts appear, to those claiming discrimination, more impartial and disinterested than the efforts of the civil service to police itself.

The legislative history of Section 505 attests to the strength of these concerns in the minds of the legislators who drafted it. Senator Cranston, the author of Section 505(a)(1), explained:

Mr. President, as one of the principal authors of section 501, I can say with some authority that it was enacted, in large part, as a result of the belief, on the part of Congress, that it was the responsibility of the Federal Government to be an "equal opportunity employer." The legislative history of the section 501 illustrates that with respect to the employment of handicapped individuals, Congress expected the Federal Government should be a leader.

Mr. President, to date, the record of the Federal Government in the employment of handicapped individuals has been disappointing. Testimony before the Subcommittee on the Handicapped revealed that in the first 2 years after enactment of section 501 only 12 Federal agencies have increased their rate of hiring disabled employees by more than 3 percent.

Mr. President, my amendment making available the remedies, rights, and procedures of title VII of the Civil Rights Act of 1964 should aid the Federal Government tremendously in attaining the goal of being "an equal opportunity employer" and in fulfilling its leadership responsibilities in this area.

124 Cong.Rec. 30347 (1978).33 Senator Cranston also expressed his misgivings that the Equal Employment Opportunity Commission, which was about to get administrative jurisdiction over Section 501, had "no present expertise" in handling handicap discrimination claims. Id. Further indication of the role that Congress intended for the federal courts is furnished by its inclusion in the 1978 Amendments of an attorney fee provision for parties enforcing Section 501. See Section 505(b), 29 U.S.C. § 794a(b) (Supp. III 1979). Both the Senate and the House versions of the 1978 Amendments included such a provision, and both Houses emphasized the need to promote court enforcement of Section 501's affirmative action mandate.34 By expressly providing for a private right of action and attorney fees, and by stressing the similarities between the handicapped and minority groups protected by Title VII, Congress showed that it expected courts to assume as active a role in eliminating unlawful discrimination against the handicapped as against other groups.

Therefore, for those claims of employment discrimination on the basis of handicap to which the 1978 Amendments apply, the federal courts should make an independent appraisal as to whether a federal employer acted unlawfully because the terms of its affirmative action program do not meet the standard of Section 501.

We come, then, to the crux of this case: Did NASA's employment practices, as applied to Mr. Shirey, "provide adequate hiring, placement, and advancement opportunities for handicapped individuals" consistent with Section 501's requirement that it have an "affirmative action program plan"? To resolve this question we need not consider whether all the substantive standards of Title VII, as well as its procedural elements, apply to federal employment of the handicapped, either before or after the effective date of the 1978 Amendments. We need not consider whether the modification of subsection (u) in 1979, see notes 15, 22 supra, satisfies Section 501, or whether Section 501 required that modification. We need only decide the narrow question whether Section 501 permitted NASA 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.

We have never construed Section 501 before, and our task would be much harder if this were a more difficult case. Mr. Shirey, however, asks us to define, not the far fringes of the phrase "affirmative action," but its core: fair treatment of a critically disadvantaged group. Furthermore, the program before us places a burden precisely on those most in need of equal treatment, and for whose benefit Section 501 was enacted: qualified but severely handicapped workers. There is no problem with showing intent, since the different treatment of handicapped employees went on for so long, was codified in numerous regulations, and was actively promoted by the Civil Service Commission. Finally, the protestations of weighty governmental concerns advanced to justify this discrimination have been weakened considerably by the government's own change of heart.

Categorical, permanent denial of equal status is fundamentally inconsistent with the plain meaning and the purpose of Section 501. Although they are hardly terms of art, whatever "affirmative action" and "adequate opportunities" mean in the context of the Rehabilitation Act as a whole they mean at least that agencies may not discriminate on the basis of an employee's physical or mental disabilities without justification. The legislative history of Section 501 could not be more emphatic in identifying nondiscrimination as a crucial element in Section 501's affirmative action requirement:

The Committee emphasizes that the Federal Government must be an equal opportunity employer, and that this equal opportunity must apply fully to handicapped individuals. The Committee, therefore, expects the (Civil Service Commission) to ensure that there is no discrimination in employment for handicapped individuals within the Federal Government * * *.

S.Rep.No.93-318, 93d Cong., 1st Sess. 49 (1973), U.S.Code Cong. & Admin.News 1973, p. 2076. This same passage was cited in the legislative history of the 1978 Amendments, with Congress expressing dissatisfaction with the progress of affirmative action under Section 501 and providing for judicial involvement in the effort to combat discrimination. See note 33 supra.

Authoritative interpretations of Sections 503 and 504 of the Rehabilitation Act also equate "affirmative action" with nondiscrimination. Like Section 501, Section 503 also contains an affirmative action requirement:

Any contract in excess of $2,500 entered into by any Federal department or agency for the procurement of personal property and nonpersonal services (including construction) for the United States shall contain a provision requiring that, in employing persons to carry out such contract(,) the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals as defined in section 706(7) of this title. * * *

29 U.S.C. § 793(a) (Supp. III 1979) (as amended). Also like Section 501, it does not expressly prohibit discrimination, but the Office of Federal Contract Compliance has consistently read Section 503 as forbidding discrimination.35 That view is fully consistent with the approach courts have taken to the affirmative action programs upon which Section 503 was modeled. In a case involving the government's imposition of contract clauses requiring affirmative action in employment of racial minorities by federal construction contractors, the court stated, "The obligation to take affirmative action imports more than the negative obligation not to discriminate." Southern Illinois Builders Ass'n v. Ogilvie, 471 F.2d 680, 684 (7th Cir. 1972). The Supreme Court apparently has the same understanding of what affirmative action means. In construing Section 504 of the Rehabilitation Act it stressed that that section did not require affirmative action and implied that "affirmative action" would demand steps beyond mere "evenhanded treatment." Southeastern Community College v. Davis, 442 U.S. 397, 410-411, 99 S. Ct. 2361, 2369-70, 60 L. Ed. 2d 980 (1979). More than nondiscrimination cannot mean less than it as well. See also American Public Transit Ass'n v. Lewis, 655 F.2d 1272, 1277 (D.C.Cir.1981).36

Furthermore, the rationale for any civil-rights type affirmative action program is that simply preserving the status quo of past practices, even if they are not consciously discriminatory, can serve to perpetuate the effects of past discrimination, so that the effects cannot be eliminated without changing the practices. See Franks v. Bowman Transportation Co., 424 U.S. 747, 767-768, 96 S. Ct. 1251, 1265-66, 47 L. Ed. 2d 444 (1976); NAACP v. Allen, 493 F.2d 614, 618 (5th Cir. 1974); Associated General Contractors of Massachusetts v. Altshuler, 490 F.2d 9, 16 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S. Ct. 1971, 40 L. Ed. 2d 307 (1974). It would pervert the meaning of the phrase to give it an interpretation condoning the institutionalization of easily identifiable discrimination against the class protected by the affirmative action requirement.

This case provides more than ample illustration of the relationship between past discrimination and continuing employment practices. The excepted service appointment authority of subsection (u) is used only for those individuals who are qualified to fill a certain civil service position but whose disabilities would prevent accurate assessment of their skills by normal competitive appointment processes.37 Like almost half of all the subsection (u) appointees before 1976,38 Mr. Shirey is deaf. Since the Civil Service Commission approved the excepted service appointments of some 1,600 deaf people-including Mr. Shirey-we may assume that it believed deafness was the sort of handicap which might prevent a qualified person from obtaining an appointment through the competitive process. We note further that the chairman of the Commission, in 1976 testimony before a Senate subcommittee, admitted that in the past the standard competitive examinations had discriminated against the deaf.39

Thus, Mr. Shirey's excepted service appointment was not an indication that he was less qualified for the job than competitive, nonhandicapped applicants. Nor was it a "voluntary" choice, as the District Court seems to have thought,40 except to the extent that the desire to be treated fairly is also voluntary. Mr. Shirey's special appointment meant only that both NASA and the Civil Service Commission agreed that it would have been discriminatory to make him submit to an appointment process favoring those with hearing ability in the normal range.

Four years after his appointment, however, Mr. Shirey had passed his probation and demonstrated his aptitude in two positions, with tasks of increasing responsibility and skill. Yet he did not stand on equal footing with his co-workers.41 That difference had nothing to do with his hearing ability or the need to avoid discrimination. He was being treated less well than his fellow employees only because he was in a class initially determined by the severity of his handicap.

The government argues (and the District Court accepted the argument) that granting full job benefits to excepted service employees would undermine the incentive structure of the merit system. That argument plainly mistakes the nature of Mr. Shirey's challenge. The unlawful discrimination in this case occurred when Mr. Shirey was kept in the excepted service long after the reason for keeping him in a separate employment category had expired. He was working alongside and performing the same tasks as competitive service employees, and no expensive modification of his employment conditions was required.42 His need for the benefits of competitive service status was certainly no less than that of his co-workers. And the President's subsequent modification of subsection (u), to provide a means for handicapped employees to convert to competitive service status after two years on the job, demonstrates that affording full benefits to proved handicapped employees will not destroy the merit system.43

The government also argues that its system of excepted service appointments for those with severe physical disabilities does not discriminate on the basis of disability because most handicapped individuals obtain jobs through the competitive process.44 "The handicapped," however, are not a homogeneous group, and all that those who come within the rubric "handicapped" share is some trait outside the normal range of capabilities for that trait.45 It need not be the same trait, or the same degree of difference-the blind and the deaf have little in common except that both are "handicapped." Therefore, it is senseless to suggest that discrimination against one group of handicapped individuals is justified because another group, with different abilities altogether or in different contexts, does not suffer discrimination.

The Civil Service Commission understood that fact in 1964, when it recognized that some, but not all, of the handicapped have disabilities so severe as to make it unlikely that they would qualify for jobs under the existing competitive appointment system. But the intelligence of that innovation does not excuse singling out the same group of people for purposes-provision of employment benefits-that have nothing to do with their particular disabilities. It may be that some individuals have handicaps that would make it impossible for them to do any job other than the one to which they were first appointed, and for these denial of some job protections might be warranted even under Section 501. But Section 501 does not allow discrimination on the basis of the severity of an individual's handicap when unrelated to the individual's qualifications or any other substantial governmental justification.46

We emphasize the narrow effect of this decision. The legal position of disabled employees like Mr. Shirey has changed significantly since January 1978. Leaving to one side the question of what substantive standards are implied in Section 505, the Equal Employment Opportunity Commission's regulations on handicap discrimination in government employment, which became effective in April 1978, provide protections for excepted service employees unavailable to Mr. Shirey. In March 1979 Executive Order 12125 gave handicapped excepted service employees relief basically identical to that Mr. Shirey seeks before this court. Finally, Mr. Shirey was the only handicapped excepted service employee at Goddard to lose his job in the January 1978 reduction-in-force.47 In sum, Mr. Shirey's case seems to have arisen in the course of discovering unanticipated flaws in an otherwise praiseworthy 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.

Although we have held that NASA's employment scheme as applied to Mr. Shirey violated Section 501 of the Rehabilitation Act of 1973, several important issues remain in this case.

The government has introduced affidavits to show that even if Mr. Shirey had received full competitive status, dating back to when he was first appointed, he still would have been separated during the reduction-in-force. If that is true, then Mr. Shirey's claims for back pay and injunctive relief depend on proof that he would have obtained another job through competitive reemployment or reinstatement rights. Mr. Shirey has also claimed discrimination in promotional opportunities, but he has not proved that he would have received a second promotion in the absence of discrimination. All of these questions present factual issues requiring resolution by the District Court.

Therefore, we reverse the District Court's order granting summary judgment for defendants48 on plaintiff's Rehabilitation Act claim, and we remand for determination by the District Court as to what further relief may be appropriate.

So ordered.

I regret that I am unable to join Judge Wright's scholarly and extremely well-researched opinion in this case. Given the limited precedential value of the decision rendered by the court today,1 however, I will confine my remarks to brief and general observations on what I feel are the most significant errors in the analysis presented by the majority.

When one casts aside the indisputable observations made by the majority regarding the federal government's avowed role as an equal opportunity employer, one realizes that Judge Wright's opinion reaches an almost extraordinary result: the court holds, in effect, that aspects of a program designed to assist handicapped individuals in securing federal employment in fact violate an Act of Congress that mandates that agencies establish affirmative action programs. The achievement of this, shall I say, interesting conclusion was made possible by nothing less than a nimble judicial sleight-of-hand, and I would like briefly to set forth the basic elements of this achievement.

The majority opinion conveys, I believe, several erroneous impressions regarding both the federal hiring programs that obtained at the time Mr. Shirey was hired in 1973 and the options that he had available at that time in pursuit of federal employment. In 1973-as in 1981-positions under the federal civil service fell for application purposes under one of two broad categories, "competitive service" and "excepted service." Most employees in federal service, including most handicapped employees, held in 1973 and hold today positions in the competitive service. Employees who occupy such positions have generally been hired, as might be expected, through a competitive selection process. See 5 U.S.C. § 3304 (1976 & Supp. III 1979). By contrast, excepted service employees have not gained their positions through any formal competitive process open to all comers; rather, either because special considerations regarding the position render competitive scrutiny inapplicable, or because certain characteristics of individual applicants are thought as a matter of policy to merit exempting them from the competitive process, a number of positions and individuals have been placed outside the formal competitive regime.2

As the majority notes,3 individuals suffering from severe physical or mental disabilities were and are among those who could be offered federal positions for which they were qualified without participation in the competitive process.4 Mr. Shirey was, in light of his deafness, hired for a position in NASA as a Computer Systems Analyst as an excepted service employee. It is clear that Mr. Shirey met the requirements of the position at the time he was hired,5 and that fact is evinced by his competent performance for over four years in that job. It is also manifest, however, that Mr. Shirey could have sought appointment to his NASA position through the competitive service process; indeed, his own amended complaint in this case expressly acknowledges that "handicapped persons are also hired through the regular 'competitive service' procedures...."6 Mr. Shirey was, it should be emphasized, quite correct in this regard. The district court found that "the excepted service program serves as a supplement to NASA's hiring programs. Defendant NASA employs over 24,000 people and over 1,500 of those are handicapped competitive service personnel." Shirey v. Campbell, No. 78-2177 (D.D.C. August 29, 1980), Memorandum Opinion at 3; Appellants' Appendix (A.A.) at 8a (emphasis added).

In sum, in spite of the message implied in the majority's statement that the excepted service appointment authority for the handicapped is "used only for those individuals who are qualified ... but whose disabilities would prevent accurate assessment of their skills by normal competitive appointment processes,"7 it is clear that many deaf applicants have successfully run the gauntlet of those processes. Mr. Shirey could have chosen to run that gauntlet as well,8 just as he could earlier have attempted to convert to the competitive service.9 I certainly do not mean to criticize Mr. Shirey for the route he took toward federal employment; I do, however, take issue with the majority's statement that Mr. Shirey's decision to proceed by the excepted service path as opposed to the competitive one was anything other than voluntary.10

With this background, it is possible to discern the questions that this case does pose, and, equally importantly, to recognize those issues that are not before the court. It is clear to me that this case does not involve discrimination against handicapped employees because they are handicapped; rather, it concerns "discrimination" against all federal employees who entered the federal service through the noncompetitive, excepted procedure. Precisely as the majority opinion notes, "Mr. Shirey had completely different-and inferior-job protection rights, because he had been 'excepted' from the competitive appointment process."11 As the majority thus concedes, Mr. Shirey was not required to "compete" with other qualified applicants for the position he received; rather, he was the direct beneficiary of a program designed to assist handicapped individuals in the pursuit of federal jobs. This very program, as the majority notes, permitted Mr. Shirey to "bypass the competitive appointment system."12

When the facts are examined in this context, the incongruity of this litigation is apparent. Mr. Shirey was awarded his position under a program that, by any measure, was the product of enlightened discrimination in his favor. To be sure, Mr. Shirey was qualified for the position he received, but so too were many who sought the same job or similar ones through the competitive examination processes and yet who were not hired because they failed to earn the highest grades in the competition. Any number of these individuals were more qualified in every respect than Mr. Shirey, yet he received the position; had Mr. Shirey been fairly tested by competitive means, it is not at all clear that he would have been hired by NASA. Where the excepted service provision relevant in this case operates, let us remember, a position need not be awarded to the individual most qualified, as in the competitive service system-it need only be awarded to someone physically handicapped and "likely to succeed in the performance of the duties." 5 C.F.R. § 213.3102(u) (1981); see note 5, supra. The district judge whose decision the court today reverses noted that the excepted service process thus "offers an acceptable supplement to the job opportunities currently available to handicapped persons through the competitive service."13

I thus find myself in complete agreement with the position taken by the district court and urged by the government appellees in this case. Mr. Shirey was indeed a member of a class that possessed inferior job security rights; the cause of the discrimination of which he complains, however, was not the fact of his handicapped status but rather was his status as an excepted service employee. When faced with a reduction in force, federal administrators face a task of great difficulty in determining which employees to retain and which employees to release. Some employees must go. In the case at the bar, the Civil Service Commission determined that employees who entered federal service through the competitive process should be awarded superior job retention rights than those accorded excepted service employees. There is absolutely no doubt that this distinction, however one may disagree with it as a matter of policy, is a rational and reasonable one. As the appellees in this case note, it is entirely reasonable for federal agencies to encourage participation in the competitive appointment process by according greater benefits to competitive service employees. See Brief for Appellees at 19-21. The morale and resentment problems that might be posed by the perception among competitive service employees that excepted employees are treated indistinguishably from "regular" ones also provide valid bases for the discrimination of which Mr. Shirey complains.

Yet this case is not, of course, an equal protection challenge, and hence, considerations of rationality are not strictly relevant. What is most interesting-and most disturbing-to me about the majority's decision today is clear when we consider the issue this case does pose. The question raised in this litigation involves the scope of an Act of Congress mandating affirmative action. The court today employs a statute that requires that federal agencies establish affirmative action plans to rule that the treatment of Mr. Shirey-and by implication his "class"-violates federal law. Section 501 of the Rehabilitation Act of 1973 requires that agencies develop affirmative action strategies for the hiring, placement, and advancement of handicapped individuals. I agree with Judge Wright that this mandate implicitly proscribes employment discrimination against handicapped persons. Majority opinion at 1200-1201. Yet, as I have argued above and as the district court held, we do not before us have a case in which an individual has been discriminated against because he is handicapped. There is simply no link demonstrated by either Mr. Shirey or by the majority between Mr. Shirey's deafness and his inferior job retention rights; he had those inferior rights because he was an excepted service employee, not because he was deaf.

At the heart of this dissent, then, is the belief that this court, in the guise of defining the "substantive scope" of section 501,14 dons a legislative mantle to modify a program it apparently feels does not go far enough in affirmatively ameliorating the disadvantages of deafness. I simply do not believe that section 501 requires, however, that federal agencies guarantee the full benefits of competitive service status to those handicapped individuals who enter federal employment through the excepted service program. It is manifest that section 501 provides agencies with considerable discretion in formulating an affirmative action strategy. The district judge observed that that provision does not require that all such affirmative action plans "fall within the competitive service,"15 and I agree completely with that conclusion.

That the federal government in 1979 changed its policy and currently permits handicapped excepted service employees to convert to competitive status is irrelevant in the current context, save that it renders today's decision a narrow one. Yet if we forget for the purposes of this litigation that change of policy-and again, it is absolutely irrelevant to the resolution of the issues of statutory construction posed by this case-we can discern the full impact of the court's reasoning. Put most simply, the majority's application of section 501 has the effect of mandating that all handicapped excepted service employees be at some point accorded the benefits of competitive service status. Nothing in the language of that section or in the legislative history grounds this intrusion upon the discretion Congress has accorded agency administrators; indeed, the court's conclusion today is at the very most a teleological product of the Rehabilitation Act.

As the court rightly notes, the core of affirmative action is fair treatment, and I harbor absolutely no doubt that the government program Mr. Shirey challenges in this litigation treated him fairly. I suggested above that Mr. Shirey could have sought his position through the competitive processes and, save for the glib and simple conclusion in the majority opinion that his acceptance of an excepted service appointment was not a voluntary choice,16 there is no evidence indicating the contrary. If, however, Mr. Shirey believes that the competitive examination scheme was or is unfair to deaf applicants, then let him challenge forthrightly that scheme. As I view the matter, such a challenge would be far more consonant with the judicial role than is asking a court to gauge whether an affirmative action program goes sufficiently far in correcting the disadvantages of a physical handicap.

As a matter of policy, the court's decision today may well be a correct one. Once a handicapped person has secured a government job through the excepted service, at some point after he has performed acceptably in the post he should be given the same perquisites and entitlements that a competitive service employee receives. The federal government has now reached this conclusion, and I commend the concerned officials for their decision. That a decision is correct in a policy sense, however, does not mean that it is the proper one for a court to reach. Federal courts simply do not exist to right the wrongs of Congress and agencies as ad hoc purveyors of justice, however better the nation would be served were that the case. This is the case even when the challenge at issue is garbed in the attractive sartorial splendor of "affirmative action."

I would affirm the decision of the district court, and I therefore dissent.