concurring:

I concur in the majority opinion. I write separately only to explain how the several issues discussed in the opinion relate to one another, and to disassociate myself from the dictum of footnote 1 of the opinion, which comments on a “due process” issue not raised or briefed on appeal.

McCartin argued to us that his complaint stated a claim for equitable and monetary relief arising under the first amendment and the Administrative Procedure Act. Parts I and IV of the opinion reject both contentions. In Part II, the opinion correctly permits judicial review of agency action under 28 U.S.C. § 1331 (a). This holding, however, must be viewed in conjunction with Part V, which rejects McCartin’s claims for damages against both the government and the individual defendant. Therefore, the opinion holds that McCartin has stated a claim only for nonmonetary relief under section 1331(a) for the alleged arbitrary and capricious conduct of the government defendants in failing to follow certain lawfully-promulgated administrative regulations.

But, surprisingly, after Part III of the opinion properly rejects McCartin’s due process claim, footnote 1, which I reject, suggests that McCartin should be permitted to “argue” this due process claim under the equal protection “component” of the fifth amendment’s due process clause. It is unfortunate, in my judgment, to reach out to state this gratuitous dictum. Of course, McCartin can argue any issue. My concern is that the district court may imply from the footnote a hint that the argument has merit. As I see it, the rationality test of the fifth amendment’s equal protection component means that we must uphold conduct of the federal government if we can hypothesize a rational basis for that conduct, whether articulated or not. See generally United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174-77 , 101 S.Ct. 453, 458-60 , 66 L.Ed.2d 368 (1981). At least in this case, it strikes me as unreasonable to *1323-1327 attempt to distinguish arbitrary and capricious conduct, which violates due process, from irrational classifications, which violate equal protection. Having rejected the due process claim, it would be an exercise in futility to suggest to the district court that it might now find a lack of rationality in this case. Because Part IV holds that McCartin never adequately raised a first amendment claim, it also seems unnecessary to suggest that he should be permitted to recast any first amendment claim he might allege on remand as a “fundamental right” triggering strict scrutiny review. Regardless, I do not believe that the district court should feel bound by the nonauthoritative language in footnote 1.