Eleon Allen, Individually and for Others Similarly Situated v. Margaret Heckler, 780 F.2d 64

Eleon Allen, Individually and for Others Similarly Situated v. Margaret Heckler

780 F.2d 64

D.C. Cir.

1985

Check Treatment

*1 ROBINSON, Judge, Chief Before MIKVA, EDWARDS, WRIGHT, WALD, ALLEN, individually Eleon and for BORK, SCALIA, STARR, GINSBURG, similarly situated, others BUCKLEY, SILBERMAN Plaintiffs-Appellees, Judges.

v. HECKLER, al., Margaret Defendants-Appellants. ORDER No. 84-5612. PER CURIAM: Appeals, United States Court of rehearing en borne suggestions for District of Columbia Circuit. to the full Court. been circulated have Voting majori for and at least a called 19, Argued Sept. 1985. regular judges of Court ty of the in favor of the voted limited active service have 31, Decided Dec. 1985. purpose of de suggestions for the reconsider ciding the Court should whether Pipe Eastern holding in Panhandle its (D.C.Cir. FERC, 613 F.2d 1120 Line Co. 1979). of the fore Upon consideration Court, ORDERED, by the en it is going, banc, as follows: suggestions rehearing 1. The en granted. banc De- opinion of II the Court’s Part 2. para- last as the as well

cember date, are of the same opinion graph of

vacated. each copies file shall parties ques directed briefs this Court supplemental

of tion continue should of whether in Panhandle decision to its adhere to Eastern F.2d FERC, 613 v. Co. Line Pipe not, in what and, if (D.C.Cir.1979), depart therefrom. it should respects

65 Opinion by for the Court filed Circuit Judge MIKVA.

Dissenting Opinion by filed Circuit FRIEDMAN.

MIKVA, Judge: Circuit appeal This involves a claim under the Act of Rehabilitation 1973. 29 U.S.C. (“the (1982) Act”). 701 seq. Section § Act, 501 of U.S.C. § requires department each federal executive plan to formulate an action affirmative provides adequate opportunities career for handicapped people. plaintiffs, a class Elizabeth’s, patients of former at St. a fed- hospital, by eral mental were hired Hospital pursuant plan. They to one such plan inadequate now claim that this be- cause it allows St. Elizabeth’s to discrimi- against nate them on the basis of their previous institutionalization. agreed granted court district

summary judgment in plain- favor of the finding tiffs. affirm We now the court’s discrimination, but vacate and remand for remedy. reconsideration of the I. Allen, plaintiff,

Eleon the named is a former patient Hospital, at St. Elizabeth’s Washington, federal institution in patient his discharge D.C. After as a hired Allen was St. Elizabeth’s as housekeeping pursuant aide to 5 C.F.R. (1984) (“subsection (h)”). 213.3102(h) Solet, Rockville, Md., M. § Irene (h) provides Subsection Willard, who Acting Asst. whom Richard K. discharged diGenova, have been from federal mental Gen., Joseph Atty., E. Atty. U.S. hospitals hiring special con- Kanter, D.C., Washington, William they pre- at the institution brief, sideration where defendants-appel- on the for viously key received treatment. The lants. ex-patients is that are ex- Rubenstein, Ar- S. with whom Leonard competitive process usual cused from the D.C., Kanter, Washington, S. lene obtaining employment, federal and thus brief, plaintiffs-appellees. “excepted” employ- are considered MIKVA, (1982); ees. 5 C.F.R. WRIGHT and See 5 U.S.C. Before Circuit § 213.101(a) (1984). FRIEDMAN,* Although the former Judges, Judge, necessary skills for Appeals for the must have States Court of United seek, jobs considered “not Circuit. Federal 291(a) (1982). by designation pursuant *Sitting competi- capped” meaning subject them within the of the Act. practical” to Although plaintiffs longer 5 C.F.R. tive civil service examination. institu- tionalized, recognizes the Act 213.3101 that discrimi- nation also occurs those who at one ex-pa- such as the Excepted employees, disabling time had a condition. The handi- here, exactly perform the same work tients cap people that these continuing face is the *3 counterparts. service “competitive” as stigma being psychiatric pa- a former responsibilities and are the Their duties tient; disability disappear upon did not same, judged by the same their work discharge hospital, from the as dissent standards, pay and their is the same. The apparently regulations believes. The thus workers, however, few- alia, as, inter handicapped person define a competitive employees. er benefits than history one who “has a of ... mental or (h) participate Subsection workers physical impairment substantially that lim- program. in the civil service retirement major its one or more life activities.” 29 831.201(14) (1984). If they are C.F.R. § 1613.702(a)(2),(d) (1984) (emphasis C.F.R. § discharged, they disciplined or do not have Ballay, added); 648, see In re 482 F.2d hearing right evidentiary to an before (D.C.Cir.1973) (discussing stigma 688-69 decisionmaker, right independent an or the institutionalization). prior Systems appeal to the Merit Protection seq., 7501 et Board. See 5 U.S.C. §§ granting excepted Plaintiffs claim that (1982). Excepted seq. also have workers workers fewer benefits for the same work job protections “bumping” no fewer previous is discrimination based on their (i.e., right jobs no from em- rights to take They argue medical condition. that subsec- ployees seniority) with less there is a when (h) violates the Act’s affirmative action reduction in work force. See 5 C.F.R. requirement provide because it does not 351.403(b)(2) “adequate” opportunities. advancement Green) (per Judge (h) The district court June An worker under subsection agreed granted summary judgment competitive service is free to enter the at plaintiff remedy, favor of the class. As a any by taking regular time civil service ordered that all subsection exam; Green the drawback is that completed who had footing must start on the same as a worker satisfactory service must be allowed to con- applicant. patient first-time The former status, vert to with full bene- enjoys advantage of his on-the- because Heckler, fits and credits. Allen v. No. job experience, get seniority nor does he or 83-0226, (D.D.C. slip op. July at 7-8 spent other credit for the time before con- 1984) Decision”). (“July 5 status, permanent career version toward See equivalent the federal of tenure. government The makes two claims on 315.201(a) (1984). C.F.R. § first, appeal: that subsection does not it violate the Act because does distin- fifty-two patients Allen other former guish among on the of handi- basis (“plaintiffs”) working at St. Elizabeth’s second, cap; the district court’s reme- that Department sued the Director of the dy improper in these circumstances. Di- Health and Human Services and the Manage- Personnel rector of the Office of II. (“the government”) ment under the Reha- tension, if clearly not con bilitation Act. Section 501 of the Act re- There flict, well-meaning at quires department and between the two that each executive tempts at issue agency promulgate an action to assist affirmative (h) excepted ser provides adequate “hiring, place- this case. The subsection plan that Eliza ment, program created St. opportunities for vice and advancement” recently 791(b). help in the 1950s to dis handicapped people. beth’s 29 U.S.C. contend, charged return to work plaintiffs government contest, Hospital believed they are force. Doctors at does not “handi- assistance, 83-0226, (D.D.C. slip op. for- special May some 12-13 that without 1984) Decision”). (“May 4 jobs find patients might unable to mer stigma people that follows because of argues even By excus- institutionalized. who have been though excepted workers are treated dif- civil exam ing ex-patients from the workers, ferently than the dis- in familiar employing them surround- legitimate tinction is it is not because based hoped they build a ings, was Instead, handicap. re- help them good employment record claims that workers are not enti- left the to the work force when turn tled to full because chose a Hospital. (and easier) obtaining different avenue for employment. Since former are ex- Act of 1973 was The Rehabilitation exam, empt from the civil service the rea- statutory to com- sweeping, attempt more goes, Hospital soning is free to set against the all of discrimination bat forms *4 compensation regard their without Congress made it clear handicapped. by competitive received workers. benefits amendments, Act and 1978 both the its government The claims that an employee’s 95-602, (codified 2955 Pub.L. No. 92 Stat. level of benefits thus turns on the choice of (1982)) of 29 in scattered sections U.S.C. competitive to an or a whether be the against it discrimination that viewed employee. racial, par handicapped as an evil on a with sexual, See and ethnic discrimination. argument prove much, seeks too to 95-890, S.Rep. Cong., 2d Sess. however, No. 95th ignores and thus the clear hold- Cong. Admin. 18-19 U.S.Code & ing Devine, of this in Shirey court v. 670 1978, 7312, (D.C.Cir.1982). The Act pp. News 7329-7330. Shirey F.2d 1188 involved to challenge regulation nearly is a command remove artificial barriers to a identical prevent handicapped citizens from that the one in this case. 5 C.F.R. to 213.- § 3102(u) (u)”). Recognizing (1973) (“subsection full reaching potential. their Subsec- government’s obligation (u) provided to be physically the federal tion handi- 18, equal employer, at opportunity capped an id. workers could hired as 1978, p. Cong. although & fewer employees, U.S.Code Admin.News benefits 7329, department requires competitive colleagues. Act each Mr. the than Shi- deaf, hire agency steps rey, take affirmative to was hired the Na- to who promote handicapped Space workers. Aeronautics and Administra- tional Morris, (NASA) (u) in 791(b) (1982); tion under subsection 1973. Gardner (8th Cir.1985). satisfactory per- of 752 F.2d 1271 After several formance, when he was laid off NASA command, statutory subsec- Given this its force. He claimed that reduced work (h) clearly Act’s falls short the tion lay-off his violated the Rehabilitation Act Giving un- requirement. affirmative action co-workers, he unlike his did because precisely is equal equal work right “bump” junior employees. the have designed Act type treatment the the 670 F.2d 1189-90. Hiring to eliminate. the Shirey’s claim that provision justify This court affirmed special does not under a denial violated status of benefits giving them second-class once Wright majority wrote the job. on Fowler v. the See United Cir.1980) permanent States, (8th “[cjategorical, denial of 633 F.2d fundamentally inconsistent equal status is (distinguishing disparate hiring criteria meaning purpose plain employment once with disparate from terms of out, spe- The court hired). 501.” Id. at 1200. pointed Section As the district court argument rejected that the dis- cifically very program if would be anomalous “[t]he among NASA workers based individ- tinctions designed provide these that was application process rather than the equal now opportunity, uals with denie[d] employee. Heckler, Subsec- No. characteristics right.” Allen v. them that court, (u), said the differed from most ways gain there are alternative positions short, equal because it obligation other treatment. type position handicapped dependent did not define the to assist the is not filled, only finding the medical condition of the on a in each case that the status 1192; Id.; employee. quo discriminatory. Id. at 5 C.F.R. 213.- see Southern cf. (d) (1984) 3102(a), (b), (categorizing except- Illinois Ogilvie, Builders Ass’n v. 471 F.2d profession). (7th Cir.1972) (“The positions by ed obligation to imports take affirmative action more than argues that Shirey negative obligation to discrimi- inapplicable appeal. to this It claims that nate.”). finding Shirey the crucial was that there against recognize was discrimination deaf workers in The Shirey court did that the hiring process. application process Because had discrim- bias, only of this worker’s inated deaf in past. (u) accept posi- choice was to a subsection F.2d at 1202. But the incor- rectly tion or be left with no at all. The lack finding linchpin describes this as the route, application argues Judge Wright of an alternative of the decision. merely not- government, Shirey led the court to ed that it was an “illustration” of the rela- jobs distinctions tionship past conclude that between between discrimination and along handicapped/non-handi- continuing employment practices. were drawn Id. No- competitive/excepted, capped, rather than where he indicate does that absent discrim- lines. process, dispar- ination *5 handicapped ate treatment of the would be government concludes that the dis- allowed. trict court's fatal error this case is that it patients States, failed to find that former mental supra, Fowler v. United similarly against in Eighth were discriminated challenge was faced with a competitive hiring process. parallel regulation allowing mentally Unless this to a made, claims, finding government we retarded workers to be hired into the ex- patients 213.3102(t) must conclude that former cepted volun- 5 C.F.R. § (1984) tarily (“subsection (t)”). chose to be arguments workers. It plaintiffs’ equal asserts that the access to were the same as are here and in jobs Shirey, except service distin- Fowler the discrimi- guishes this case from Shirey, brought equal and renders nation claim was under the legally the district court’s protection decision flawed. clause rather than the Rehabili- tation Act. 633 F.2d at 1259. Mr. Fowler Although argument ap- has intuitive mentally a retarded worker who was peal, think it a Shirey we affords narrow hearing, protection fired without a a af- miserly application. Discrimination competitive employees. forded The Fowler hiring process was not the ratio deci- (t) court held that resulted in subsection of the case. The court instead found dendi dispar- unlawful discrimination because the (u) discrimination because subsection ate treatment was “not based on the nature inconsistent with the rationale of an affirm- filled, position being of the but on the plan. action The court made it ative clear employee filling nature of the it.” Id. at agency’s duty that an not to discriminate pointed 1263. The court out “at means that cannot least” workers government unequal hiring had confused solely fewer benefits because of their permissible un- criteria —which are —with handicap. Judge Wright 670 F.2d at 1201. benefits, equal employment ille- which are held that the has to take af- justi- gitimate absent state interest or some steps help handicapped; firmative fication. Id. preserve a is more than command to § (h) quo. problematic the status It is not would less Id. 1201-02. Subsection enough way to treat differ- if there were a fair for former compet- ently, justify by pointing and then it out to convert from the found, the trial court convert to status without tak- But as itive service. convert; ing No. patients to an exam. Exec.Order way for the is no there 315.709, reprinted in 5 apply, along with all C.F.R. only option is to reason, some 3301 at 523 For position as a first- for a applicants, other (h) was not amended at subsection May 4 Decision at 7. federal worker. time same time. gives arrangement the workers This in the ex- spent for time seniority credit logical Although might seem to make can So before a worker cepted service. requirements conform to equal pay step enjoy a forward take closely parallel provisions, we have de- work, step must first back to an equal he symmetrical approach termined that this Surely protections entry-level position. impermissi- remedy flawed. Such this illuso- Act not of the Rehabilitation legitimate government bly interfere with a ry- interest because it fails to account for work-related differences between former and the case law These considerations handicapped and other govern- conclusion that reinforce our workers. We therefore remand to the dis- disparate treatment justify ment trict of the rem- court for reconsideration simply because of the edy. excepted hiring were beneficiaries requires that unless process. The Act obviously There is some in- government interest to legitimate is a there distinguishing terest between handi- employees must contrary, handicapped capped non-handicapped employees. as other workers. We be treated the same The existence of the service con- the district court’s deci- therefore affirm handicapped employees if firms this: did provide consideration, does not sion that subsection require special affirma- former mental adequate opportunities to goals tive action could be best met im- of the Act. patients, placing excepted in violation workers in the mediately remedy unequal service, such Fashioning a full benefits and however, treatment, complicated. (t) is more protections. But when subsections (u) amended, mentally retarded and

III. handicapped people giv- were not physically rights instantly; they instead recognized the diffi en full The trial court period. If given year a two “trial” after devising remedy. a The relief culties in discrimination, employee’s handicap proves years and at two has to end the order satisfactory impediment not to an respect government’s the same time government’s interest in handicapped. performance, the assisting in interest differently dis- treating excepted class allowed all subsection Judge Green’s order appears. (h) completed two or employees who have satisfactory service to con years of more problem in the current case is that The status, or career-conditional

vert to career continuing there are differences between automatically grant all the which would former mental and other protections of the benefits mentally or employees. While a retarded Newly at 7-8. July 5 Decision physically handicapped person’s condition receive se also would converted workers changes grad- or usually remains constant niority credit for their time patient’s status is ually, a former service. Id. See, rapid change. e.g., prone more Schweiker, Mental Health Association is modeled after the revised remedy This (D.Minn.1982) (in- F.Supp. (t) (u), which were amend- subsections rapid deterio- may in lead to regu- The crease stress in 1979. ed Executive Order mentally ill workers of handi- ration condition physically allow both lations now illness). A types of certain mentally workers with with capped and retarded perform perfectly well employee may experience to years excepted-service remand, recurring then have the district years, and On court should for several attention, prompt for problems require remedy that fashion a that takes account of this and the em- concerning the worker Benefits the sake both interest. tenure of ployer. employment protections should not dimin- flexibility to ish St. Elizabeth’s set reason- recurring problems possibility granting denying job able rules for or ten- recognized by the Second Circuit workers, ure to as their condition University, 666 F.2d 761 Doe v. New York add, however, dictates. We hasten to Cir.1981), (2d pa- a former mental where any protections or benefits unrelated to Act, brought suit under tient granted this interest must be in full. It is compel her ad- 29 U.S.C. impermissible, example, deny subsec- After her initial medical school. mission to pension rights workers full symptoms plaintiff’s hospitalization, benefits, govern- other financial since the lay dormant for almost seven mental illness in treating ment has no interest former reemerging. was then years before She patients differently in respects. these re-hospitalized periodically several protections against Even reductions in gone years, the time of her suit had but at distinction, given force should without apparent without more than four they Hospital’s since do not affect the abili- Although testimony problems. there was ty according to treat workers to their indi- cured, plaintiff the court held that vidual needs. While the district court is the medical school was entitled to consider require two-year delay still free to a before of a reoccurrence of the ill- the likelihood granting excepted workers benefits un- evaluating application. ness when her Id. government interest, per- related to the a at 778-79. Act; manent denial violates the these non and St. Elizabeth’s have work-related must be to all strong maintaining interest the flexibil- employees within a reasonable time. ity to handle these situations as arise. slightly This distinction between former mental Shirey different context the handicapped other court said fully Shirey consistent with our decision in It well be that some individuals Eighth opinion Circuit’s in Fowler. handicaps have that would make it im- says govern that a Shirey “substantial possible any job for them to do other justification” permit ment different than the one to which were first workers, treatment of even appointed, and for these denial of some 670 F.2d at 1204. And in under job protections might be warranted even Fowler, govern the court noted that the under Section 501. ment failed to show even a rational interest anyone 670 F.2d at 1204. But as familiar granting partial benefits to *7 knows, removing a with the civil service short, F.2d at In the workers. 633 competitive employee job from his status require competitive not case law does painstaking process. a slow and A former always be treated and workers patient by competitive- the who is insulated regardless competing in identically, job protections may experience con- service Tacoma, City terests. JW. Cf. of tinuing problems, yet Hospital the (9th 720 F.2d 1130 Cir. Washington, immediately powerless respond would be to 1983) (cannot on basis of discriminate the ultimate re- to correct situation. The peo stereotype, but court “assume[s]” might purpose contrary sult well be history may of mental illness ple “with a might only hire of the Act: St. Elizabeth’s special problems present best sometimes recurring problems risk of those with a low measures”) legislative by special addressed (those least need of the service in original). (emphasis in diag- program), while those with uncertain Distinguishing former from oth- the of sub- noses would be denied benefits consistent (h). handicapped employees er is also section

71 view, complaint. my St. Eliza- Act. Rehabilitation their goals of the the with noted, Hospital's hiring handi- Wright practice “the of its for- has beth's As group; the homogeneous by a appointing are not them capped” mer mental by handicapped is that (1984) the only 213.3102(h) (sub- trait shared 5 under C.F.R. § re- altered in some capabilities are (h)) their in chapter positions the to me- 1204. To 670 F.2d at Shirey, spect. requiring without them to meet the service as all workers chanically treat necessary appointment in the standards challenges same though they faced the service, and without their ob- As and unwise. inaccurate would be both taining all the benefits of the point out: distinguished commentators service, is the consistent with Rehabilita- necessary make distinctions to Failure of Act tion seq. disability physical among the varieties of (1982), improperly does discrimi- profes- popular alike to common employees those on the nate basis consequences often thought, sional their in the of former institutionalization of social to the effectiveness destructive Hospital. reha- intended for welfare and provisions Ordinarily, an an individual obtains exec- bilitation. in federal position utive branch the civil Matson, the The Disabled and tenBroek & a passing competitive examina- service 809, 811 Welfare, 54 Calif.L.Rev. Law of qualifica- her that establishes his or 670 F.2d at Shirey, in quoted sought. After position tions for the com- n. 45. probationary period, an pleting employee appointed entitled thus becomes Conclusion civil rights and benefits that service dis- of our emphasize We the narrowness provides. Congress recog- has system af- court. We agreement with the district nized, however, that certain there are cate- finding below that subsection firm the positions of that should not gories federal Act. of Rehabilitation violates competitive appointment subject to the be point excepted agree that some We also civil and therefore requirements of service to most the benefits workers are entitled provided "excepted service” to has counterparts. enjoyed by their positions. those 5 U.S.C. cover initia- government’s as the Commendable appointed Persons be, may hiring tive in these rights and do not receive the same clear of statute defeats the command competi- in the employ- as the as inferior benefits to treat them fairness afforded protections ees tive benefits must be Any treatment

others. distinctive regulations, the governing In its Office legitimate work-place needs related to Management specified has of Personnel government may have. except- that are positions number and re- remedy We therefore vacate service, filled without ed which for a only mand reconsideration ap- following regular procedures for to those handicapped workers’ entitlement classified service. Two of pointment tenure, light of relating who, categories cover individuals be- these pre- government’s legitimate interest handicaps, cause respects flexibility. all other we *8 serving In appointment in the com- for initial qualified affirm. provisions are 5 These petitive service. 213.3102(t) (u), respec- which and It so ordered. C.F.R. §§ persons” “mentally retarded tively cover dissenting: FRIEDMAN, Judge, handicapped per- “severely physically and of these either two Employees sons.” grant court’s I reverse the district would competitive to categories may be converted ap- in favor the summary judgment completion of “[u]pon dismiss status direct court to pellees and that satisfactory service under authori- given Persons appointments indefinite ty....” (h), hand, under subsection on the other are former of the mental institution present case The involves subsection longer who are disabled at the time of regulation, ap- of the which authorizes the their appointment, well-being but whose fa- pointment at federal mental institutions of employment vors their at the institution institutions, former of those who they with which are familiar. Some of discharged have been and have been certi- might those individuals have qualified ini- by authority fied medical “as recovered tially appointment competitive for sufficiently regularly to be but employed by taking service and passing the usual is believed desirable and in interest of the examination, any and of them have could persons they the that institution competitive obtained permanent posi- such employed at the All institution.” of the appointment by tions after following that appellees in this category. case are in that Indeed, course. pa- number of former appointed were They positions to at St. Elizabeth’s, appoint- tients of St. originally Hospital having Elizabeth’s without to (h), ed under precise- have done competitive require- meet the civil service ly that and now permanent appoint- hold persons seeking ments other the same the ments in classified service the position satisfy. with would have had to accompanying rights and Al- benefits. Specifically, appellees the were not re- though appellees might the have obtained a pass examination, to quired competitive position classified after appointment their they were only ap- and indefinite by taking passing competitive and the same pointments provided some, all, but not examination that other nondisqualified per- rights of the competitive benefits that take, routinely they sons attempt- have not employees They may have. obtain ed to do so. insurance, health and life but do have the rights not tenure and all appellees’ position the is that because protections given in the they perform Civil Service Re- the same work as em- other form Act of seq. ployees occupy U.S.C. positions who identical (1982),to employees service, competitive competitive the ser- the they are entitled to Indeed, vice. some of them might not have the same benefits the employees other eligible competitive appointment have, been that the denial of those benefits present positions, to by their illegally since statute discriminates them the (which appellees fill) may some the basis disability. filled of their former mental only persons prefer- entitled to veterans appellees different treatment of the (if persons available). ence such employees are 5 from performing the other 2108(3); work, however, same §§ results not from the disability former appellees The differences between subsection they but from the fact that appointed were (t) (u) and subsections are substantial. having comply require- without with the The latter two per- subsections deal competitive ments for In or- sons who are disabled at the time of their der employ- to achieve benefits from appointment and quali- therefore would not they ment in an environment with which fy competitive under the usual had they become familiar and in which procedures. examination Those individuals comfortable, were permit- given temporary but, are appointments if ted appellees positions to obtain their years they after two demonstrated have taking passing without ability perform they job, employees examination other re- converted status and quired jobs. take to obtain the same rights have the and benefits initially view, have obtained my government justifiably had been from passing disabled categories ex- treated these amination. differently giving appellees all

73 gave of March 1979 Executive Order 12125 protections and benefits civil the service positions handicapped employees service their who obtained employees the basically to that pro- relief identical Mr. Shi- through examination the rey Finally, this court. Mr. in the nature of their seeks before difference cess. The only handicapped Shirey except- the warranted the different appointments employee ed to given each service at Godard lose his category. to rights and benefits job January 1978 the situ- reduction-in- I conclude that different Similarly, sum, Shirey’s In Mr. case employees appointed under force. seems the ations of the course of (h) appointed have arisen discover- and those under subsection (u) ing unanticipated flaws in an (t) the otherwise justified conver- subsections praise-worthy program for employees latter but not the sion of the severely handicapped employing after individu- competitive positions former to als, system are that the ability their and we confident if had demonstrated years will no place produce now in more in- perform the duties of the satisfactorily to egregious as handicaps. stances of discrimination as position despite this one. case, upon Shirey I do read the not (footnote omitted). at Id. 1205 relies, supporting as its court which the protections and the limited conclusion that the subsection involved Shirey, Unlike appointed employees the given has subsection not been amended to under con- noncompetitively subsection give employees appellees’ the situation improper discrimination through stituted seeking judicial the relief employee involved a deaf Shirey Moreover, them. also intervention. unlike Mr. appointment given temporary a who was Shirey, appellees not handicapped the (u). time the At the of under subsection their appointment, at time of but were (u) provide not appointment, subsection did given prior of favored treatment because a appointed employees I handicap that had ceased. As have indi- competi- be converted cated, thereunder would fact is I think the latter a suffi- satisfactory of years tive after two status justifies cient the different distinction Following years four-and-a-half of government has treatment the these service, separated Shirey was satisfactory differently groups employees. situated of in force. Because he was in a reduction of In the “narrow effect” the Shi- view of service, Shirey had “decision,” not language in that rey broad had right “bump” employees who applied signifi- not opinion should status, right a lower retention cantly present case. different facts of Shirey was dis- employees had. After matter, As result reached in policy (u) amended to charged, My diffi- present case commendable. provision. two-year conversion add I do think culty that result is that held affirmative ac- This court that the judicial power. proper use of reflects provision of the Act Rehabilitation Congress given the President broad has 791(b) 501, (1976), 29 U.S.C. section by regulation to administer the § discretion permanently agency “to permit did regulating employment laws deny Shirey the benefits afforded Mr. to determine bases and therefore solely he had his been positions co-workers because in the executive appointments to authority, rights hired under and bene- branch and to define the earlier, on account of four half and a appointed. fits so disability.” 670 physical his severity in turn has (1982). The President F.2d at 1200. court delegated authority to the Office Management. Section Personnel emphasize[d] effect of this the narrow 11,222, 3 C.F.R. No. Exec.Order legal of disabled position decision. The app. in 18 U.S.C. changed reprinted Shirey Mr. has employees like appointment type of If the January significantly since 1978— *10 rights under and appointed

benefits of under that changed, think

subsection are to be I such from the

changes must come Office of Per- Management and not from

sonnel

courts.

INGERSOLL-RAND

COMPANY, Appellant

UNITED STATES America.

No. 85-5011.

United States of Appeals, Court

District of Columbia Circuit. Janetatos, Jack P. with whom Arthur L. Argued May 1985. George, Washington, D.C., brief, on

Decided Dec. 1985. appellant. Robinson, A. Atty., Deborah Asst. U.S. Joseph diGenova, Atty., whom E. U.S. Royce Lawrence, Lamberth R. Craig C. D.C., Attys., Washington, Asst. U.S. brief, appellee. BORK, Before GINSBURG Circuit McGOWAN, Judges, and Senior Circuit Judge.

Opinion for the Court filed Senior McGOWAN. McGOWAN, Judge: Senior Circuit case, Ingersoll-Rand appellant, (“I-R”), Company sued United States America, alleging government’s that the sup- decision to terminate I-R’s contract ply air bids for compressors and resolicit capricious arbitrary contract contrary acquisition to several federal regulations. The District Court held that provisions Disputes of the Contract Act1 1346(a)(2) (1982), Congress pro- In 28 vided: