Schuler v. U.S., 78-1797

Decision Date07 September 1979
Docket NumberNo. 78-1797,78-1797
Citation617 F.2d 605,199 U.S.App.D.C. 23
PartiesFrank A. SCHULER, Jr., Appellant, v. UNITED STATES of America, Department of State, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-2187).

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

E. Anne McKinsey, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, and John A. Terry, Peter E. George, and Ann S. DuRoss, Asst. U. S. Attys., Washington, D. C., were on brief, for appellees.

Before WRIGHT, Chief Judge, and SWYGERT * and ROBB, Circuit Judges.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge ROBB.

J. SKELLY WRIGHT, Chief Judge:

Appellant, Frank A. Schuler, Jr., seeks both 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. In 1976 he petitioned the newly formed Foreign Service Grievance Board for such relief, but the Board ruled that it lacked jurisdiction over his claim. Schuler appealed to the District Court in December 1977. That court concluded, however, that he had to seek correction of his records through the administrative procedures established by the Privacy Act, 1 and that his compensation claim was time barred under the six-year federal statute of limitations. 2 Although we agree with the District Court on the Privacy Act question, we believe that with respect to some aspects of Schuler's compensation request the Foreign Service Grievance Board incorrectly concluded that it lacked jurisdiction. In our view there is no statute of limitations obstacle to consideration of the compensation claim by the Foreign Service Grievance Board. Accordingly, we must reverse the District Court and remand for further proceedings.


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. 3 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 left your post without orders and without awaiting a reply to a telegram dated June 28, 1944 . . . wherein you tendered your resignation." 4 Alarmed by what he considered a misrepresentation of his actions, Schuler exchanged several letters with the Department and requested a hearing on his status.

The hearing was held on August 30 before the Board of Foreign Service Personnel. Although a transcript of the hearing now appears in Schuler's personnel file, he disputes its accuracy and maintains that he was asked only one question at the proceeding. On September 27 the Board sent Schuler a letter stating that his resignation had been rejected and that he was "removed from office for insubordination." 5 The Board then denied his request for reconsideration.

Schuler held several temporary positions with foreign affairs agencies of the Government between 1945 and 1953, but never again attained permanent status despite several attempts. He asserts that in 1951 he was approved by the Office of the High Commissioner to Germany as Executive Officer in a consular office in Dusseldorf, a permanent post of foreign service officer rank, but that State Department officials in Washington rejected his nomination to that job. Finally, in February 1953 Schuler was linked publicly to one of the targets of Senator Joseph McCarthy's investigation of national security and two months later was discharged by the Government for the last time. Appellant says that since then he has been employed for only seven years, and that most job opportunities evaporated as soon as the prospective employer made a background check with the State Department. 6


Schuler retained counsel in 1963 to attempt to acquire information about his Government personnel file. That effort did not bear fruit, however, and the basis for this suit was not laid until appellant filed a similar request in 1976 under the Freedom of Information and Privacy Acts. Schuler claims he then discovered not only the allegedly incorrect transcript of the 1944 hearing on his dismissal, but also many other distorted or inaccurate reports in his personnel file. The complaint states:

These files contain accusations against plaintiff that he had serious emotional problems, that he falsified government employment applications, that he was involved in dubious financial dealings, that he associated with questionable individuals, that he was engaged in possible espionage, and that he was, at turns, dishonest, quarrelsome, meddlesome and arrogant. * * * ( 7 )

These false allegations, Schuler insists, were at the root of his inability to return to the State Department on a permanent basis between 1945 and 1953 or to find any permanent employment after that.

In August 1976 appellant asked the Foreign Service Grievance Board, which had been established by Congress in 1975, 8 to set aside his 1944 dismissal from the Foreign Service, remove false statements from his records, and award him back pay and pension rights for his lost employment. An administrative official ruled that Schuler's petition did not satisfy the jurisdictional requirements for grievances of former employees because it did not involve either a financial benefit or a "selecting-out" grievance. The full Board affirmed this ruling on two occasions. In response to White House intervention on Schuler's behalf, the State Department produced a subsequent report on the case which, according to appellant, simply compiles the inaccurate material already in his files. Schuler instituted this action in December 1977 to overturn the Board's decision. 9


As defined in 22 U.S.C. § 1037 (1976), the Foreign Service Grievance Board has jurisdiction over two types of grievances of former State Department employees: (1) "(A) complaint that an allowance or other financial benefit has been denied arbitrarily, capriciously, or contrary to applicable law or regulation"; 10 and (2) complaints based on the "selecting-out" procedure for discharging from the Foreign Service those employees who have spent a specified period at a certain employment level without receiving a promotion. 11 Schuler's petition clearly does not fall within the latter category, but we believe that in some respects it is covered by the former, "financial benefit," provision.


Our standard for review of the District Court's grant of the motion to dismiss was set out by the Supreme Court in Conley v. Gibson : 12

(A) complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. * * *

The complaint must be "liberally construed in favor of the plaintiff," who must be granted the benefit of all inferences that can be derived from the facts alleged. 13 Consequently, our decision must accord the complaint the spacious interpretation prescribed by the Federal Rules.

Schuler asked the Board to grant him back pay and pension status from his allegedly improper discharge in 1944. We are hard pressed to accept his claim for pay from 1944, since his only quarrel with the Government's actions at that point was that he was not permitted to resign, but was instead fired. It is difficult to see how he can be entitled to benefits for a period during which he did not wish to work for the State Department.

We think Schuler's situation is different, however, with respect to his claims that he was wrongly denied reinstatement to foreign service officer status several times between 1945 and 1953 and was improperly discharged from his temporary...

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