Nichols, Judge,
delivered the opinion of the court:
This is a suit for back pay with jurisdiction asserted under 28 U.S.C. § 1491, which provides, inter alia:
The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, * * *.
$ $ $ $ $
The basis for the action is a finding by the Director of Equal Employment Opportunity for the Department of Health, Education and Welfare (HEW), that plaintiff had been denied equal opportunity for employment because of racial discrimination in violation of Executive Order 11478, 34 Fed. Reg. 12985 (1969). Both E.O. 11478, and its predecessor E.O. 11246, 30 Fed. Reg. 12319 (1965), were promulgated by the President pursuant to 5 U.S.C. § 7151, Supp. V (1965-69), which provides:
It is the policy of the United States to insure equal employment opportunities for employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy.
E.O. 11246 was in effect at the time plaintiff was denied employment, but the following pertinent passages are common to both Orders:
Section 1. It is the policy of the Government of the United States to provide equal opportunity, in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, or national origin, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the Federal Government.
Sec. 2. The head of each executive department and agency shall establish and maintain an affirmative pro[190]*190gram of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction in accordance with the policy set forth in section 1. * * *
* * * * *
Sec. 4. The Civil Service Commission shall provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment on the basis of race, color, religion, sex, or national origin. * * *. Procedures for the consideration of complaints shall include at least one impartial review within the executive department or agency and shall provide for appeal to the Civil Service Commission.
* * * * * *
Plaintiff, a black resident of Beckley, West Virginia, had, in early 1965, -made application to the district office of the Social Security Administration (SSA) located in that community, for employment as a clerk-typist, GS-4. She was interviewed by District Manager Billings, and he made the customary reference checks. He learned she was technically qualified, and the references were favorable, so he offered her a position. She was unable to accept it because in the meantime she had secured employment at the Beckley Appalachian Regional Hospital (BARH). She worked there for approximately two years, resigning in 1967. At that time she again sought employment with the local SSA office, since a position there was once again available. This time, however, because of a reference report which he considered unfavorable, Mr. Billings refused to recommend her for employment. The report was to the effect that the BARH would not rehire her because “she was a perennial troublemaker who, during her BARH employment, was not averse to frivolously alleging racial discrimination and calling in the NAACP.” On March 17, 1967, Mrs. Chambers was advised that she would not be employed. Another black person, Mrs. Chambers’ cousin, was hired instead.
Shortly thereafter she filed a complaint with the SSA alleging that she had been denied employment because of racial discrimination. A hearing followed at which witnesses testified for both sides. However, there was no inquiry into plaintiff’s charges against BARH because it was considered [191]*191to be beyond the jurisdiction of SSA. Following the hearing, the examiner filed a report containing summaries of testimony, findings of fact and recommendations. One of the fact findings was that “but for the reference report submitted by the BABH management employees, [plaintiff] would have been recommended for employment by the District Manager.” The Government has not challenged this finding in the instant proceeding and counsel openly conceded the point during oral argument. We are, of course, not bound by this concession if all other facts are to the contrary. Cf. E. B. Zachry Co. v. United States, 170 Ct. Cl. 115, 344 F. 2d 352 (1965). However, according to the report, the finding was based on a statement to that effect by Mr. Billings himself, rather than merely an inference drawn by the hearing officer. This is not surprising in view of Mr. Billings’ prior knowledge of plaintiff’s qualifications and reputation which had previously led him to offer her a position. We think the finding has sufficient support in the record and accept the defendant’s “stipulation” if we may so designate it.
The hearing officer also found that Mr. Billings, had made no attempt to verify the BABH report but accepted it at face value and assigned it “crucial weight” in his decision. The hearing officer held this to be no error “under existing, applicable policies and regulations,” nevertheless, he asked whether employing agencies had an obligation, in view of equal employment policies, to determine the validity of an unfavorable reference report “where, as was the case here, the report is crucial as to the decision to be reached and the potential complainant’s counterallegation is that the report reflects discrimination of the kind proscribed by regulations.” Notwithstanding, his ultimate finding was that plaintiff “was not discriminated against, because of race, by the Social Security Administration and/or the district manager.” This report was approved by SSA officials who felt that the hiring of another black person for the same job was proof that there had been no discrimination against plaintiff.
At plaintiff’s request the hearing officer’s report was reviewed by the Director of Equal Employment Opportunity for HEW, resulting in a reversal of the finding of no dis[192]*192crimination. The Director criticized the hearing afforded plaintiff in the following language:
* * * the SSA District Office in Becldey, West Virginia, failed to answer Mrs. Chambers’ charge that it operated in and was unduly influenced by an environment of racial discrimination. Furthermore, it offered no data on the racial composition of its office, its hiring practices or implementation of affirmative action. Mrs. Chambers was indeed discriminated against, and we feel that the SSA personnel involved in this case were cavalier in their denial of the serious charge of racial discrimination.
* * * * * *
* * * the argument that the hiring of one Negro obviates the charge of discrimination is not sufficient of itself to answer the charge that racial factors formed the basis for complainant’s personal denial of employment with the SSA.
* * * * * *
The question posed by the hearing officer was apparently answered in the affirmative. The Director considered it “significant that Mr. Billings did not even consider that [plaintiff] might have had reasons for charging racial discrimination, and more importantly, within the Federal contest, her right to file a complaint of discrimination.” The decision, based solely on an analysis of the SSA hearing officer’s investigative report was:
* * * that the denial of equal opportunity for employment in the instant case was based substantially on the applicant’s previous racial discrimination complaint and that such denial constituted a violation of Executive Order 11478 and Department regulations pursuant thereto.
The defendant by its counsel concedes the discrimination. The underlying facts being undisputed, what is involved, evidently, is an interpretation of the Executive Order by the agencies authorized to administer it. Such interpretations have special weight if not arbitrary or capricious, not mere whim or caprice, even if a court might disagree. Houston v. United States, 156 Ct. Cl. 38, 46, 297 F. 2d 838, 842, cert. denied, 371 U.S. 815, reh. denied, 371 U.S. 906 (1962). This would be true even if, as in Houston, one party was challeng-[193]*193jug the interpretation. Here, however, both parties in substance agree on it. Certainly it is possible to hold in good faith that it is racial discrimination against an applicant to turn him down because he complained of racial discrimination against him in another job, without inquiry whether such previous complaint was frivolous or bona fide. It is also not mere caprice to hold that discrimination against one black is not necessarily purged by hiring another black. The issue was not Mr. Billings’ credibility, nor whether, subjectively, he did or did not entertain bias against minority races. It was, purely and simply, whether his own undisputed account of what he did showed that he had or had not fully performed the duties that E.O. 11246 made incumbent upon him as a hiring official in the Executive branch.
The usual proper handling of an open court concession is, we believe, to eliminate the conceded issue from further consideration by the court. There are exceptions, for example an attempt to establish the court’s subject matter jurisdiction by concession, but they do not apply here. Thus in Wagner v. United States, 181 Ct. Cl. 807, 387 F. 2d 966 (1967), the trial commissioner had submitted a recommended opinion dealing with two alternative grounds for recovery plaintiff had urged before him. In our Per Curiam the following appears, 181 Ct. Cl. at 809, 387 F. 2d at 967:
Before us the taxpayer explained in his reply brief and in oral argument that he did not expect to prevail on the first issue, considered separately. That is, absent the showing of discrimination he claimed he had made, he did not believe the facts in the record demonstrated that the asserted tax was not lawfully assessed. This concession makes it unnecessary for us to inquire into the matter contained in the first branch of our commissioner’s recommended opinion, and we do not do so. * * *
In adopting the recommended opinion, we deleted the portion that dealt with the conceded issue. We think a similar omission would be in order here, and the conceded issue is discussed beyond what is strictly proper only to satisfy the scruples of our dissenting judges. This case will in no way constitute a precedent as to the meaning of discrimination under the Executive Order.
[194]*194The recommended remedy was that Mrs. Chambers be given “consideration for the next suitable position in SSA for which she qualifies and is available.” Plaintiff felt this remedy was inadequate and she appealed further to the Civil Service Commission Board of Appeals and Review (BAR). She asked for immediate employment in the position which had been unlawfully denied her, retroactive and with back pay. The BAR granted her partial relief by directing the SSA to “offer Mrs. Chambers a position at the GS-4 level at Beckley, West Virginia, within 30 days of its receipt of the Board’s decision.” Her request for retroactive appointment and back pay was denied, however, because the BAR considered such a remedy as beyond its authority.
The appeal to the BAR constituted exhaustion of her administrative remedies; therefore she next filed suit in this court seeking back pay for the period between March 17, 1967, the date she was unlawfully denied employment, and March 9, 1970, the date she finally became employed. Both parties have moved for summary judgment.
We are confronted with a situation where defendant admits that it discriminated against an applicant because of race and but for that discrimination she would have been employed at a particular grade and salary on March 17, 1967. Presumably she met all proper qualifications. Presumably there was a vacancy and funds to pay the applicant were available. Presumably her selection would not have required resolution of any open discretionary question in her favor. The sole question for our determination is whether, in the circumstances, E.O. 11478 provides a legal basis for awarding back pay to such an applicant for Federal employment. We hold that it does.
There is nothing novel about this court affording a monetary remedy to claimants on the strength of Executive Orders and administrative regulations not expressly so providing. Under the doctrine of Service v. Dulles, 354 U.S. 363 (1957), we have many times awarded back pay to plaintiffs, both military and civilian, who demonstrated a violation of procedural rights guaranteed to them by valid departmental regulations. Glidden v. United States, 185 Ct. Cl. 515 (1968); Fletcher v. United States, 183 Ct. Cl. 1, 392 F. 2d 266 (1968); [195]*195Greenway v. United States, 175 Ct. Cl. 350 (1963), cert. denied, 385 U.S. 881, reh. denied, 385 U.S. 954 (1966); Daub v. United States, 154 Ct. Cl. 434, 292 F. 2d 895 (1961); Starzec v. United States, 145 Ct. Cl. 25 (1959); Watson v. United States, 142 Ct. Cl. 749, 162 F. Supp. 755 (1958). In Watson, the court noted at 756, 162 F. Supp at 758:
* * * that neither Service nor Watson was claiming a violation of any procedural rights guaranteed by any statute whatever, but rather the violation of rights guaranteed by departmental regulations. If the regulations issued under the executive orders, which in turn were issued under the 1883 Civil Service Act, in the case of Service had the force and effect of law, and a discharge carried out contrary to the provisions of these regulations was therefore an invalid discharge, it is difficult to understand why the Watson discharge in violation of another regulation issued under the same 1883 Act, was not equally invalid.
In Daub, supra, the court noted at 437-38, 292 F. 2d at 897-98:
The Government points out that the plaintiff was a temporary employee who had no status either in the competitive civil service, or as a veteran. But, as we have shown, the Army had, by regulation, conferred upon its employees, including its employees who had no rights under the Lloyd-LaFollette Act or the Veterans’ Preference Act, the right to prescribed rational and uniform treatment with regard to their status as employees. * * *
In Simon v. United States, 113 Ct. Cl. 182, 190-91 (1949), the court said:
* * *. It is not necessary, to the jurisdiction of this court to render a money judgment based upon rights conferred, that the statute, contract, or regulation upon which the claim is founded contain a provision that denial of a legal right thereunder shall give rise to a cause of action for compensation or damages. This matter is taken care of by the broad jurisdiction conferred by § 1491, U.S.C., Title 28, supra. United States v. Wickersham, 201 U.S. 390.
It is true, as defendant points out, that these cases involved existing employees who were found to have been wrongfully discharged from Federal employment. Defendant correctly [196]*196observes that in no previous case have we awarded back pay to an applicant for employment. We are cited to a line of cases stemming from United States v. McLean, 95 U.S. 750 (1877), which defendant contends support the proposition “that there is no legal basis for awarding plaintiff the salary for a position she never held.” These cases involved employees who had been appointed to one position but were in fact performing duties of a higher paid position. The contention of those plaintiffs was that performance of duties of the higher paid position entitled them to the pay of that position. They were in effect, suing for promotions. In McLean, supra, the Supreme Court established the principle that the power of appointment is within the discretion of the executive and held at 753, that, “courts cannot perform executive duties, or treat them as performed when they have been neglected.” In Coleman v. United States, 100 Ct. Cl. 41, (1943), this court denied recovery to a plaintiff who had been appointed as a “substitute garageman-driver” but was suing for the pay of a “driver-mechanic” because he had allegedly been performing the duties of the latter position. The court said, 100 Ct. Cl. at 42:
* * *. Plaintiff is entitled to no more than the salary of the office to which he was appointed, whether or not he performed the duties of an office of a higher grade.
Like issues were involved in Amundson v. United States, 128 Ct. Cl. 80, 120 Fed. Supp. 201 (1954); Price v. United States, 112 Ct. Cl. 198, 80 F. Supp. 542 (1948) ; and Dvorkin v. United States, 101 Ct. Cl. 296, cert. denied, 323 U.S. 730 (1944). See also, Ganse v. United States, 180 Ct. Cl. 183, 376 F. 2d 900 (1967).
In Tierney v. United States, 168 Ct. Cl. 77, 80 (1964), plaintiff claimed that an alleged wrongful transfer had prevented his being considered for a subsequent promotion to a higher position created by a reorganization. The court refused to analyze the merits of plaintiff’s claim and denied recovery because:
* * *. The power of appointment is within the discretion of the head of a department. It is an executive function which involves exercising the discretion of the executive. * * *. If this court were to grant recovery to [197]*197plaintiff it would in effect bestow upon plaintiff a promotion which he never received. In so doing, this court would be making an administrative decision. Such action would be a clear usurpation by the judiciary of an administrative function. * * *
Even had the plaintiff not been transferred, he might not have been chosen for promotion pursuant to the reorganization. When the reviewing court has determined that there has been substantial compliance with applicable regulations and statutes it has performed its proper function. It would be improper to substitute the supposed wisdom of the court for that of the agency in the exercise of executive discretion.
The above cases correctly state the law and we adhere to the decisions therein. But they are not dispositive of the case at bar. The Supreme Court has, since Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), distinguished between discretionary acts of executive officials which are beyond judicial power to review, and ministerial acts which can be compelled by mandamus, Miguel v. McCarl, 291 U.S. 442 (1934). But even as to discretionary acts, the Court has held that an administrative officer might exceed his authority “by making a determination which is arbitrary or capricious or unsupported by evidence.” Dismuke v. United States, 297 U.S. 167, 172 (1936). This court has utilized that standard in back pay cases. Blackmar v. United States, 173 Ct. Cl. 1035, 354 F. 2d 340 (1965).
Here, we are neither reviewing a discretionary act nor performing one. The executive agency has already made the determination that but for unlawful discrimination, plaintiff would have been hired on March 17, 1967. We are not asked to speculate even as to the grade, salary, or the date. Our only function here is to ascertain the plaintiff’s rights which flow from that determination. See Vasey v. United States, 128 Ct. Cl. 754 (1954), and Smith v. United States, 127 Ct. Cl. 706, 119 F. Supp. 200 (1954). In Vasey, the plaintiff had been reclassified from Special Investigator, CAF-8, in the Treasury Department to Criminal Investigator at the same grade and salary. Shortly thereafter, all “Special” Investigators were upgraded to CAF-9. The Civil Service Commission BAB, held that plaintiff’s reclassification had been improper and ordered that he be restored retroactively [198]*198to the position of “Special” Investigator and given the benefit of any advance in grade. Since the determination to promote the plaintiff had been made by the BAB,, the only question for the court was whether plaintiff was also entitled to back pay. We held that he was.
Defendant’s primary reliance, however, seems to be on Gnotta v. United States, 415 F. 2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934. The plaintiff in that case, a man of Italian ancestry, brought suit in the District Court under E.O. 11246, supra, alleging that he had, because of discrimination, been denied promotions during 11 years service with the Corps of Engineers. He pursued his administrative remedies in the same manner as the plaintiff here, but with a different outcome. The finding, affirmed by the BAB, was that the evidence did not support the allegations of discrimination. Judge (now Justice) Blackmun, wrote the opinion sustaining dismissal of plaintiff’s action by the District Court. He adopted that part of the District Court’s opinion which held, 415 F. 2d at 1278:
* * *. None of the executive orders or regulations which the complaint cites purports to confer any right on an employee of the United States to institute a civil action for damages against the United States, in the event of their violation, even if it should be established that plaintiff’s failure to have been promoted * * * was in fact due to discrimination in violation of the Executive Orders pleaded. * * *
The court was of the opinion that the Tucker Act, 28 U.S.C. § 1346(a) (2), (conferring on the District Courts concurrent jurisdiction with the Court of Claims) was not broad enough to confer jurisdiction in such a case. Our line of cases, expressing a different view, apparently was not cited or considered.
We think what this court said in Simon, supra, 113 Ct. Cl. at 192-93, provides the applicable rule of law:
Defendant’s position is based entirely upon an inference which it seeks to draw from the absence in the Act of 1883 of an express provision that the denial of a right under a regulation, duly made pursuant to that Act, shall entitle the employee concerned to sue in this court. We think it is obvious that such an express provision was [199]*199not necessary since Congress knew, in 1883, that it bad already expressly given tbis court jurisdiction to bear, determine, and enter judgments upon sucb claims. * * *
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The statute (28 U.S.C. 1491) outlining the general jurisdiction of this court and the Civil Service Act of January 16,1888, supra, are “in pari materia” and should be construed together. * * *
In promulgating E.O. 11246 and E.O. 11478, the President, it must be assumed, was well aware of the existing jurisdiction of the Court of Claims and the case history (partly recounted, supra) of back pay awards for violation of rights granted under Executive Orders and departmental regulations. Congress indicated its intent that 5 U.S.C. § 7151, supra, be more than merely hortatory when it instructed the President to “use his existing authority to carry out this policy” of equal employment opportunity. It is, of course, true that when Congress creates rights in individuals, “it is under no obligation to provide a remedy through the courts.” See Lynch v. United States, 292 U.S. 571, 582 (1934). When it desires to exclude a class of claim from judicial review it knows how to do so. 38 U.S.C. § 211(a) provides that decisions of the Administrator of Veterans’ Affairs:
* * * on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans’ Administration shall be final and conclusive and no other official or any court of the. United States shall have power or jurisdiction to review any such decision.
Article 76 of the Uniform Code of Military Justice, 10 U.S.C. § 876, provides:
The appellate review of records or trial provided by this chapter, * * *, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, * * *
But absent such a clear manifestation that access to the courts is prohibited where a specific right has been created, we think it is the intent of Congress that the general jurisdictional statutes are controlling. We find support for this conclusion, [200]*200particularly as it relates to administrative denial of rights, in certain provisions of the Administrative Procedure Act, and the language of the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967):
* * * the Administrative Procedure Act, * * * embodies the basic presumption of judicial review to one “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute,” 5 U.S.C. § 702, so long as no statute precludes such relief or the action is not one committed by law to agency discretion, 5 U.S.C. § 701(a). The Administrative Procedure Act provides specifically not only for review of “ [a]gency action made reviewable by statute” but also for review of “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704. * * *
We have recently considered the effect of the Administrative Procedure Act as to agency action not expressly stated to be reviewable, in Moore-McCormack Lines, Inc. v. United States, 188 Ct. Cl. 644, 413 F. 2d 568 (1969). In this case, plaintiff’s right to equal employment opportunity under 5 U.S.C. § 7151 and E.O. 11478 was denied her by action of the Social Security Administration. She therefore is a person suffering a “legal wrong because of agency action.” There is no statute that precludes relief and the agency certainly has no discretion to practice discrimination. As we have shown, Federal employees have for many years been prosecuting pay claims in this court under the general jurisdiction provided by 28 U.S.C. § 1491. We think that the statute and Executive Order cited herein have simply added another class of persons entitled to seek relief thereunder, namely, applicants of minority races.
The Veterans’ Preference Act of 1944, as amended, 58 Stat. 387, (now found in scattered sections of 5 U.S.C., Supp. V (1965-69)) contained no provisions for back pay or for bringing suit in the Court of Claims, however, we have granted relief on countless occasions when the procedural requirements of that Act had not been complied with. Mallow v. United States, 161 Ct. Cl. 207 (1963); Stringer v. United States, 117 Ct. Cl. 30, 90 F. Supp. 375 (1950); Wittner v. United States, 110 Ct. Cl. 231, 76 F. Supp. 110 [201]*201(1948). We have also granted relief in other cases where there was no specific right to sue given by the applicable statutes. In Betts v. United States, 145 Ct. Cl. 530, 172 F. Supp. 450 (1959), an action for military disability retirement compensation, the court said, 145 Ct. Cl. at 536, 172 F. Supp. at 453-54:
This court has, of course, no authority to appoint persons to public office. It does have jurisdiction to award them money damages as compensation for violations of rights granted to them by statute or regulation. * * *
In Weiss v. United States, 187 Ct. Cl. 1, 5, 408 F. 2d 416, 418 (1969), we said:
* * *. It is well established that it is within our jurisdiction to review and, in the appropriate case, reverse a decision of a Service Secretary which arbitrarily reverses a correction board’s decision and findings. * * *
As we see it, when plaintiff made application for employment with a Federal agency, she came under the protection of the Executive Orders, which by terms and by implication, apply to applicants as well as employees. The very concept of “equal employment opportunity” must necessarily be concerned with persons seeking employment. Sec. 2 of E.O. 11478 directs agency heads to “establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants” (emphasis supplied). The CSC is then directed to “provide for the prompt, fair and impartial consideration of oil complaints of discrimination in Federal employment” (emphasis supplied). The Order draws no distinctions between employees and applicants and we think none was intended. It has been found that plaintiff’s rights under E.O. 11478 have been violated and that she has been prejudiced thereby. She is therefore entitled to the only remedy this court is authorized to give, a money judgment.
Plaintiffs in the companion case of Allison v. United States, post, at 263, 451 F. 2d 1035, have called our attention to Comp. Gen. B-165571, 50 Comp. Gen. 581 (1971), upholding the claim of a black applicant to back pay when discrimi[202]*202nated against by being hired at Grade GS-9 when a White person would have 'been hired for the same duties at GS-11. The opinion distinguishes prior GAO holdings that hack pay is unavailable in cases of discriminatory failure to promote, and would appear to be consistent with the distinction we draw here: between the usual no-promotion claim, such as Gnotta, supra, requiring the court to exercise administrative discretion if it grants relief, and cases such as this, where administrative findings and concessions remove all discretionary elements from the case. We believe that the exercise of discretion is the true bar where it remains for exercise if plaintiff is to recover. We do not see any validity to a distinction between an old employee, not promoted, and a new one, not hired, in either case claiming pay for a job he never held.
Our research discloses only one case in this court which is not compatible with the decision reached here; Hyman v. United States, 138 Ct. Cl. 836, 157 F. Supp. 164 (1957). In that case, (not cited by either party herein) the plaintiff had been properly separated from Federal employment by a reduction in force. However, under applicable CSC regulations, she continued to have “re-employment priority rights” entitling her to be hired before certain other persons should a position for which she was qualified become available. Such a position did become available, but the agency refused to re-hire her. Upon appeal, the BAB, ordered the agency to employ her with appointment retroactive to the date she should have been hired. This court refused to award back pay, holding, 138 Ct. Cl. at 842, 157 F. Supp. at 168, that she was not “entitled to be paid for a job to which she was not appointed and from which she was not, of necessity, removed.” However, no case was cited as authority to support the decision and in retrospect, we think it was wrongly decided. Our decision here necessarily overrules Hyman.
It may be that this case has First Amendment implications such as were discussed in Swaaley v. United States, 180 Ct. Cl. 1, 376 F. 2d 857 (1967), but since recovery is allowable under the Executive Order, we need not inquire into that possibility.
[203]*203Accordingly, we hold that plaintiff can recover back pay from March 17, 1967, the date defendant admits she should have been hired, until March 9, 1970, the date she was employed pursuant to the Order of the BAB, less any amount she might have earned in the interim. Plaintiff’s motion for summary judgment is granted and defendant’s motion is denied, the amount of recovery to be determined under Rule 131(c) (2).