We recognize the long-standing salutary rule that "the appointment to an official position in the Government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment", and "therefore it is one of those acts over which the courts have no general supervisory power." Keim v. United States, 177 U.S. 290, 44 L. Ed. 774, 20 S. Ct. 574. See also Batchelor v. United States, 169 Ct. Cl. 180, cert. denied 382 U.S. 870, 15 L. Ed. 2d 109, 86 S. Ct. 147; Jason v. Summerfield, 94 U.S. App. D.C. 197, 214 F.2d 273, cert. denied 348 U.S. 840, 99 L. Ed. 662, 75 S. Ct. 48; Gnotta v. United States, 415 F.2d 1271 (8th Cir.), cert. denied 397 U.S. 934, 25 L. Ed. 2d 115, 90 S. Ct. 941; McGhee v. Johnson, 420 F.2d 445 (10th Cir.); Benson v. United States, 421 F.2d 515 (9th Cir.). Only well - founded claims of discrimination in federal employment because of race, color, religion, sex, or national origin, see 42 U.S.C. Sections 2000e-2 and 2000e-5; or union activity, see Executive Order 11491, are cognizable in the courts. And then only to determine whether administrative due process has been accorded to the alleged discriminatee, i.e. whether a fair and open hearing with the right of confrontation and cross-examination was accorded on the discriminatory charges. Morgan v. United States, 304 U.S. 1, 82 L. Ed. 1129, 58 S. Ct. 773; Vitarelli v. Seaton, 359 U.S. 535, 3 L. Ed. 2d 1012, 79 S. Ct. 968; Greene v. McElroy, 37 LC 65,644 360 U.S. 474, 3 L. Ed. 2d 1377, 79 S. Ct. 1400. See also Charlton v. United States, 412 F.2d 390 (3d Cir.); DeLong v. Hampton, 422 F.2d 21 (3d Cir.); Brown v. Zuckert, 349 F.2d 461 (7th Cir.), cert. denied 382 U.S. 998, 15 L. Ed. 2d 486, 86 S. Ct. 588; Davis v. Berzak, 405 F.2d 642 (10th Cir.); McGhee v. Johnson, supra; Charles v. Blount, 430 F.2d 665 (7th Cir.). In any event, the exhaustion of the prescribed administrative remedies is prerequisite to limited judicial review. Coy v. Folsom, 228 F.2d 276 (3d Cir.); United States v. Zmuda, 423 F.2d 757 (3d Cir.); Huling v. United States, 185 Ct. Cl. 407, 401 F.2d 998. See Executive Order 11478, 5 C.F.R. Sections 713.201 through 713.241, with respect to claims of deprivation of civil rights; and see Executive Order 11491 (34 C.F.R. 17605) with respect to claims of discrimination for union activity. No such attempt has been made in this case.
On remand, the trial court may consider whether Rosenman has been offered his former position or its equivalent. If so, the matter is of course moot. In the event of a dispute concerning equivalence of the proffered re-employment, the matter must be left to the prescribed administrative proceedings for determination of that issue together with the discriminatory complaint.