of Miles from the instant case. Although Miles was appointed to a position, and thus served as an employee for a period of time, he had resigned by the time of the suit. Moreover, his contract claim did not arise while he was an employee, but was the result of a promise allegedly made prior to Miles' appointment. Miles' contract claim was not the result of a variance between his appointed position and his actual position, but resulted from the difference between the position allegedly promised to him, and the position to which he was appointed. Thus, the only factual distinction between this case and Miles is that plaintiff alleges that he was promised a position, but was never appointed. Whereas Miles alleged that he was promised onethe burden urged upon it by the Government. On the basis of our analysis of the appointment procedures in use in these cases, as established by the Personnel Manual and the other evidence, we believe that the completion of the Form 50 was not the "last act" required of the appointing authorities within the meaning of Marbury. The members of the class before us were appointed to the positions for which they were unconditionally selected.
Id. at 245-46 [footnotes omitted].
