Schuler v. U.S., 78-1797

• Decision Date: 23 May 1980
• Docket Number: No. 78-1797,78-1797
• Citation: 628 F.2d 199,202 U.S.App.D.C. 199
• Parties: Frank A. SCHULER, Jr., Appellant, v. UNITED STATES of America, Department of State, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 199

628 F.2d 199

202 U.S.App.D.C. 199

Frank A. SCHULER, Jr., Appellant, v. UNITED STATES of America, Department of State, et al.

No. 78-1797.

United States Court of Appeals, District of Columbia Circuit.

Argued En Banc April 15, 1980.

Decided May 23, 1980.

Bernard Fensterwald, Jr., Washington, D.C., with whom Marc Feldman, Washington, D.C., was on the brief, for appellant.

Freddi Lipstein, Atty., Dept. of Justice, Washington, D.C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U.S. Atty., and Barbara L. Herwig, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees. John A. Terry, E. Anne McKinsey, Peter E. George, and Ann S. DuRoss, Asst. U.S. Attys., Washington, D.C., also entered appearances for appellees.

Before WRIGHT, Chief Judge, and McGOWAN, TAMM ^*, ROBINSON, MacKINNON, ROBB, WILKEY, WALD, MIKVA and EDWARDS, Circuit Judges.

Opinion for the court per curiam.

Concurring opinion filed by Circuit Judge MacKINNON.

Concurring opinion filed by Circuit Judge EDWARDS in which Circuit Judge WALD joins.

PER CURIAM:

Appellant Frank A. Schuler seeks reversal of the District Court's dismissal of his complaint, which requested declaratory reversal of his allegedly improper termination by the State Department, correction of his State Department personnel file, and an award of monetary benefits lost due to the Government's allegedly improper treatment of him between 1944 and 1953. The facts of the case are set out at length in the vacated panel opinion in Schuler v. United States, D.C. Cir. No. 78-1797, September 7, 1979. ¹ We now affirm the judgment of the District Court.

Schuler has stated essentially two legal grounds for relief: The Foreign Service Act of 1946, as amended, 22 U.S.C. § 1037a(1) (1976), and the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1976). Neither ground supports his claim.

Schuler has pursued his administrative claim solely under 22 U.S.C. § 1037a(1) (C), which applies to former employees other than those involuntarily retired under the Department's selecting-out procedures. Thus any rights that might exist under 22 U.S.C. § 1037a(1)(B) are not at issue here. 22 U.S.C. § 1037a(1)(C), in relevant part, reads:

(W)hen the grievant is a former officer or employee * * * , "grievance" shall mean a complaint that an allowance or other financial benefit has been denied arbitrarily, capriciously, or contrary to applicable law or regulation (.)

The phrase "financial benefit" would appear to refer to salary, allowances, pension rights, or other benefits incidental to the grievant's former employment. The heart of Schuler's claim is an allegation of wrongful separation and maintenance of false and damaging records. Though Schuler seeks various financial benefits as incidents of this claim, the Grievance Board could grant him those benefits only if it held his separation wrongful and reinstated him which it has no power to do under the statute. Thus, the term "financial benefit" cannot be so broadly construed as to encompass Schuler's claims.

Schuler's invocation of the Federal Tort Claims Act fails most clearly on statute of limitations grounds. His claim may suffer other very serious flaws. Though he may characterize it as alleging the tort of negligent maintenance of employment records, the claim falls extremely close to the language of 28 U.S.C. § 2680(h) (1976), which excludes from the coverage of the Federal Tort Claims Act claims of "libel, slander, misrepresentation, deceit, or interference with contract rights." Moreover, since the claim essentially arose no later than 1953, if we were to reverse the District Court's dismissal we might have to strain the doctrine of equitable tolling and hold that the statute of limitations on the tort claim was tolled until 1974 when the passage of the relevant provisions of the Freedom of Information Act and the Privacy Act, 5 U.S.C. §§ 552, 552a (1976), gave him access to the information on which he bases his claims. But we need not resolve those issues. Even if we believed that the negligent maintenance claim falls outside the exclusion language of 28 U.S.C. § 2680(h), and even were we to invoke the equitable tolling doctrine in Schuler's favor, the statute of limitations would bar the claim.

The relevant statutory provision of the Federal Tort Claims Act reads:

(b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b) (1976). Though the section is not happily drafted, common sense and the legislative history tell us that it requires the claimant both to file the claim with the agency within two years after accrual of the claim and then to file a complaint in the District Court within six months after the agency denies the claim. Were we to read the "or" in the section as really intending the disjunctive, a claimant who filed a claim with the agency within two years would then be able to bring it to a District Court at any remote future time after the agency denied him relief. The only possible limit on such an action would be the preceding subsection, 28 U.S.C. § 2401(a) (1976), which establishes a general six-year statue of limitations for claims against the United States. But relying on that provision makes little sense, since it was clearly intended as a general statute of limitations, to be superseded for tort claims by the highly specific language of Section 2401(b).

Moreover, the legislative history of Section 2401(b) clearly shows that Congress intended a claimant to surmount both barriers. The Report of the House Committee, H.R. Rep. No. 1532, 89th Cong., 2d Sess. 5 (1966), states:

Section 7

This section amends the provisions of section 2401, the limitations section, to conform the section to the amendments added by the bill. The amendments have the effect of simplifying the language of section 2401 to require that a claimant must file a claim in writing to the appropriate Federal agency within 2 years after the claim accrues, and to further require the filing of a court action within 6 months of notice by certified or registered mail of a final decision of the claim by the agency to which it was presented.

(Emphasis added.) The Senate Report, S. Rep. No. 1327, 89th Cong., 2d Sess. 1 (1966), repeats this statement and states under the heading "PURPOSE":

The purpose of the bill is to provide authority to the heads of Federal agencies for administrative settlement of tort claims against the United States. Settlements for more than $25,000 must have the prior written approval of the Attorney General or his designee. A claim would have to be filed with the agency concerned within 2 years after it accrues and any tort action must be brought within 6 months after final denial of the administrative claim. The bill would increase the limits for attorneys' fees in cases of administrative settlement from 10 to 20 percent and from 20 to 25 percent of amounts paid after suit is begun.

(Emphasis added.)

Schuler passed the first limitations barrier to invocation of the Federal Tort Claims Act by filing a claim with the Foreign Service Grievance Board within two years of the purported late accrual of his claim. However, he failed to pass the second since he filed his complaint in the District Court more than six months after the Foreign Service Grievance Board denied the claim.

The judgment of the District Court is therefore

Affirmed.

APPENDIX

I

Because the District Court granted the Government's motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure, the only factual allegations in the record before us appear in appellant's complaint, and we must presume that those uncontradicted allegations are true. Consequently, our account of the events leading to this suit is drawn from the complaint.

Between 1930 and 1941 appellant was a foreign service officer with a specialty in Japanese language and affairs. He asserts that on September 13, 1941 a memorandum signed by Schuler and five associates was circulated at the State Department. The memorandum reportedly called for a re-evaluation of our policy toward Japan and warned of that nation's hostility toward us. The chief of the Division of Far Eastern Affairs strongly reprimanded the authors of the document and demanded an apology, which Schuler says he did not offer. On November 7, 1941 he was transferred to the Caribbean to establish a consulate on the island of Antigua.

Schuler remained on Antigua until 1943 despite his requests for an assignment that would draw on his language training and background in the national effort against the Japanese. After spending a year in our consulate in Windsor, Canada, Schuler was informed in 1944 that he would be sent to Noumea, New Caledonia, in the South Pacific, to work with the Office of War Information (OWI). When he arrived in Noumea on June 27, 1944, however, he discovered that OWI had never maintained any operations in Noumea and that he was in fact expected to replace the resident American Consul there. Schuler decided to resign from the Foreign Service that day, and on June 28 the outgoing Consul sent a telegram to the Secretary of State with that message. In a telegram that reached Schuler on June 30 the chief of the Division of Foreign Service Personnel exhorted him to remain at his post, but when the Secretary of State did not reply to the resignation message by July 4, Schuler left Noumea.

Appellant states that upon his return to this country he again telegrammed the Secretary of State to inform him of his resignation. On July 20 he received a letter of reply informing him that he had been placed on "leave without pay status . . . in view of the fact that you...