*1
argues
Cf.,
Schultz,
be re-
its release “would not
Id.
Ditlow v.
find the in Disabled Officer’s Rumsfeld, (D.D.C. F.Supp.
Ass’n v.
1977),
opinion,
aff’d without
(D.C.Cir.1978), instructive. The names and requested
addresses the in that Association case were personnel SCHULER, Jr., available various Appellant, Frank A. and other records the Defense v. ment, but because all of them were not document, single Department argued America, UNITED STATES of had “not requested Department State, Association et al. identifiable mean- agency record within the No. 78-1797. (em- 428 F.Supp. FOIA.” at 456 phasis original). That argument was re- Appeals, States Court jected: District of Columbia Circuit. Plaintiff is attempting to use FOIA to force defendants to create a Argued En Banc April 1980. they have,
record which do not already May Decided request existing its is one for an meaning record within the of the Act. If of Defense did not main- officers,
tain records on retired disabled plaintiff’s request
then could be seen as compel
an attempt to com- defendants
pile they possess information do not
Renegotiation Board Grumman Air- Engineering
craft Corp., supra, would
have more applicability to this case.
However, defendants stated that
the Department of Defense pertaining financial records officers, plaintiff
retired disabled
only requesting them to disclose a limited
portion of, amount of information files,
from these the names and addresses
of the retired disabled officers. The fact defendants have to nu- search comply
merous records to re-
quest comply- and that the net result of
ing with the will be a document
the agency previously possess
not unusual in FOIA cases nor does this
preclude applicability *2 Fensterwald, Jr., Washington,
Bernard D.C., Feldman, with whom Marc Wash- D.C., ington, brief, appellant. was on the for Justice, Lipstein, Atty., Dept, Freddi D.C., Daniel, Washington, with whom Alice Gen., Ruff, Atty. Asst. Charles F. C. U.S. Atty., L. Herwig, Atty., Dept, and Barbara Justice, D.C., Washington, were on the brief, appellees. Terry, John A. E. McKinsey, George, Anne Peter E. and Ann DuRoss, Attys., Washington, S. Asst. U.S. D.C., appearances also appel- entered lees. WRIGHT, Judge,
Before Chief McGOWAN, TAMM*, ROBINSON, Mac KINNON, ROBB, WILKEY, WALD, EDWARDS, MIKVA and Judges. Circuit Opinion for the court curiam. Concurring opinion Judge filed Circuit MacKINNON.
Concurring opinion Judge filed Circuit EDWARDS in which Circuit WALD joins.
PER CURIAM: Appellant Frank A. Schuler seeks rever sal of the District Court’s dismissal of complaint, requested declaratory re versal allegedly improper of his termination by the Department, correction of his file, Department personnel monetary award of benefits lost due to the allegedly improper Government’s treatment of him between 1944 The facts and 1953. length of the case are set out at in the panel vacated 78-1797, States, D.C. Cir. No. judgment 1979.1 We now affirm District Court.
* deleted) participate Circuit TAMM did which state the facts of footnotes decision in this case. appendix to this consists of Parts panel (with and II of the vacated legal might two Court’s dismissal we have to essentially strain stated equitable tolling the doctrine and hold for relief: The grounds amended, 1037a(l) tort that the statute of limitations on the as pas- until when Tort Claims 28 claim was tolled (1976), and Federal (1976). ground sage provisions 1346(b) Neither the relevant the Free- *3 Privacy of Act and the his claim. dom Information supports 552, (1976),gave 552a him U.S.C. §§ pursued his adminis- Schuler has [L2] to the information on which he access bases solely under 22 claim U.S.C. trative his claims. But we need not resolve those 1037a(l)(C), applies to former em- § negli- issues. Even if we believed that the involuntarily those other than ployees claim the gent maintenance falls outside Department’s selecting- under the retired 2680(h), language exclusion of 28 U.S.C. § procedures. rights might Thus out and even we to the equitable were invoke 1037a(l)(B) are exist under U.S.C. favor, tolling doctrine in Schuler’s the stat- 1037a(l)(C), here. 22 in at issue of ute limitations would bar the claim. part, relevant reads: is a officer or grievant the former [W]hen The relevant statutory provision of * * *, shall “grievance” the Federal Tort Claims Act reads: that an allowance or mean (b) A tort against claim the United financial has been denied other benefit States shall forever barred unless contrary arbitrarily, capriciously, or presented writing to the appropriate regulation[.] Federal agency years within two after ap- benefit” would phrase “financial such claim accrues or unless action allowances, pension salary, refer to pear to begun six within after months of date rights, or other benefits incidental to the mailing, by registered mail, certified or of grievant’s employment. former The heart notice of final denial of claim the by allegation wrong- claim of is an Schuler’s agency to which it presented. false separation ful and maintenance of 2401(b) (1976). 28 U.S.C. Though Though damaging records. Schuler seeks happily drafted, section is not common financial benefits as incidents of various legislative sense and history tell us that claim, the grant Grievance Board could requires it the claimant both to file the only separa- him those benefits if it held his claim with agency within years two tion and reinstated him—which it after accrual of the claim and then to file power has no statute. do complaint in the District Court within six Thus, the term benefit” cannot “financial months the agency denies broadly encompass be so construed as to Were we to read the “or” the section as claims. really intending disjunctive, a claimant Schuler’s invocation who filed a agency of the Federal claim with the Tort Claims Act fails most clearly stat two would then to bring be able it to ute of grounds. limitations His claim a District at any Court remote future time suffer other very serious Though flaws. after the agency denied him relief. The may characterize it as alleging only the tort possible limit on such an action would negligent maintenance of employment rec subsection, be the preceding 28 U.S.C. ords, the claim falls extremely close to 2401(a) (1976),which establishes a general language of 28 2680(h) (1976), six-year statue of limitations for claims which excludes from the coverage the United States. But relying Federal Tort “libel, Claims Act provision sense, makes little it since slander, misrepresentation, deceit, or inter clearly general intended as a statute of ference with rights.” Moreover, contract limitations, be superseded for tort claims since the claim essentially arose later specific highly language of Section 1953, than if we were to reverse 2401(b). the District
Moreover, legislative history judgment Sec- of the District Court 2401(b) clearly Congress tion shows therefore a intended claimant both barri- surmount Affirmed. Committee, Report of the House ers. Rep. Cong., No. 89th 2d H.R. Sess. APPENDIX (1966),states: Section the District granted Because Court provisions This section amends the Government’s motion to dismiss under Rule section, limitations Procedure, 12 of the Federal Rules of Civil conform the section to the amendments allegations, factual record added the bill. The amendments have appear appellant’s complaint, before us simplifying language the effect of *4 presume and we must that those uncontra- section 2401 to a require that claimant allegations are Consequently, dicted true. must file a claim in to the writing appro- our account of the events to this leading priate agency years Federal 2 af- from complaint. suit is drawn accrues, ter the claim to and further re- 1930 appellant Between and 1941 was a quire the filing of a court action within 6 foreign officer specialty service with a months of by regis- notice certified Japanese language and affairs. He asserts tered mail of a final of the claim decision 13,1941 that on a memorandum agency presented. to which it was signed by and five was Schuler associates (Emphasis added.) Report, The Senate S. Department. circulated State 1327, Rep. (1966), No. Cong., 89th 2d 1 Sess. reportedly memorandum called for re- repeats this statement and states under the of our policy Japan evaluation toward heading “PURPOSE”: hostility warned of that nation’s us. toward purpose provide of the is to bill chief Division of Far Eastern authority agen- to the heads of Federal strongly reprimanded Affairs the authors cies for administrative settlement of tort apology, document demanded an against the United Settle- States. says he did not offer. On Schuler $25,000 ments for more than must have 7,1941 to the November he was transferred prior approval written of the Attor- Caribbean establish consulate on ney General or A claim designee. his Antigua. island of would have agency to be filed with the 1943 Antigua Schuler remained on until years concerned within 2 after it accrues despite requests assignment for an that his any brought tort action must training on language would draw his within 6 months after final denial of the against background the national effort administrative claim. The bill would in- Japanese. spending year After in our crease the attorneys’ limits for fees in Windsor, Canada, consulate in Schuler cases of administrative settlement 1944 that informed in he would be sent percent per- and from 20 to 25 Noumea, Caledonia, New Pa- South cent of paid begun. amounts after suit is cific, with the Infor- to work Office of War
(Emphasis added.) (OWI). mation When he arrived in Nou- passed Schuler 27,1944,however, the first barri- limitations mea on June he discovered er to invocation of opera- Tort Federal Claims that OWI had never maintained by filing a claim the Foreign with fact tions in Noumea and that he was in Service Grievance Board within two expected replace the resident American purported late resign accrual his claim. Consul there. Schuler decided to However, he pass failed to the second since on day, from the Service that he complaint filed his in the District Court tele- outgoing June 28 the Consul sent a more than six months gram Secretary to the State Service Grievance Board message. telegram denied Schu- that reached
background check with the State ment. ler on June 30 the chief of the Division of Personnel him to exhorted II Secretary post, remain his but when Schuler retained counsel in 1963 at- reply resignation tempt acquire information about his message by July left Noumea. personnel Government file. That effort did Appellant states that his return to upon fruit, however, not bear basis for country again telegrammed he the Sec- this suit was not until appellant laid filed a retary resig- him of inform his similar 1976 under Freedom July nation. On he a letter of received Privacy of Information and Acts. Schuler
reply him he been informing had claims he then al- discovered placed pay “leave without . legedly transcript incorrect of the 1944 in view of you your post the fact that left dismissal, hearing many on his but also awaiting without orders and without a re- reports other distorted inaccurate in his ply telegram to a . dated June file. The states: you your resignation.” wherein tendered These files contain accusations misrepre- Alarmed he what considered a plaintiff that he had serious emotional actions, exchanged sentation of his problems, government that he falsified several letters with the employment applications, in- requested hearing status. *5 dealings, volved in dubious financial that August The was hearing held on be- questionable he associated with individu- Foreign fore the Board of Service Person- als, engaged he possible espio- that was Although nel. transcript hearing a was, turns, nage, he dishon- file, appears now he est, quarrelsome, meddlesome arro- disputes accuracy its that he and maintains ** * gant. only question at the proceed- asked one insists, allegations, These false Schuler ing. On Board sent inability were at the root of return a stating resignation Schuler letter that his Department permanent the State basis rejected had been and that he was “re- any per- between 1945 and 1953 or to find moved from office for insubordination.” employment manent after that. The Board then denied his for re- consideration. In August 1976 appellant asked the For- Schuler held several temporary positions eign Board, Service Grievance which had foreign agencies affairs of the Govern- Congress been established to set ment between 1945 and but never aside his 1944 dismissal from again permanent attained despite Service, remove false statements from his several attempts. He asserts that in 1951 records, and pay pen- award him back he approved by the Office of High rights sion for employment. his lost An Commissioner to Germany as Executive Of- administrative official ruled that Schuler’s ficer in a consular Dusseldorf, office in a petition satisfy jurisdictional permanent post of foreign service officer requirements for grievances of former em- rank, but that Department officials in ployees because it did involve either Washington rejected his nomination to that “selecting-out” griev- financial benefit or a job. Finally, in February 1953 Schuler was ruling ance. full this Board affirmed publicly linked to one the targets response on two occasions. In to White Joseph Senator McCarthy’s investigation of behalf, House intervention on Schuler’s national security and two months later was Department produced subsequent discharged by the Government for the last report which, according ap- case Appellant says time. that since then he has pellant, simply compiles the inaccurate ma- been employed years, for seven already terial in his files. institut- Schuler job most opportunities evaporated as ed this action in December 1977 overturn prospective soon as the employer made Board’s decision.
MacKINNON, Judge, concurring: 1037a(l)(C) any under more than Circuit can. It is thus erroneous to infer that the per completely in the curiam I concur decision, rule announced in the insofar as write that silence will not be but so opinion 1037a(l)(C) concerned, would not apply in the other interpreted as full concurrence to officers or who were such opinion. potential It has some concurring enactment of misunderstanding. concurring next its statement curiam is not per First of all subject by opinion deals with another stat- It a full to “narrow limits.” restricted at the that officers time seeking damages that a holding suit barred, passage are not be- wrongful separation alleged alleged perceived be as they may cause “former cannot be damaging misrepresentations disputed employees” following officers or 1037a(l)(C) under 22 considered U.S.C. complaints separation, filing timely a suit Service Act as for “an separations allegedly wrongful un- allowance or other financial benefit [that] e., Act, i. der another section of the arbitrarily, capriciously, has been denied 1037a(l)(B). opinion, curiam regulation.” contrary to law or however, 1037a(l)(C), not only involves sub- That was “never an active officer (B) nothing opinion sug- in the of State (B). The gests it does involve subsection passage applicable provi- after the this is thus extraneous case. comment Act” sions is irrele- point. Also, concurring vant court’s decision is in error to suggests The result would have been the same if he it indicates or the extent that foreign had been a service officer after the as distin- employee”, a “former officer or passage of Act and made employee” the same “officer or un- guished from an damages claim for any rights that he makes here. subsection der concurring place (B) in one seems 1037a(l) complain this, recognize when it states that it “is as “former separation. Insofar *6 that claims wrongful separation clear of the Act can- employee” are officer under or (B). cognizable under the cited Sub- subsection not sue in reliance subsection ,” (C) “grievant” to (B) only but elsewhere authorizes a it infers facts,” e., statutory “[g]iven complain these i. that he the defi- was not exclusively to “grievant” an active officer nition limits it employee pas- or after the of specifically sage employees” of the that such fact “officers and enters into employee” or holding. any It “former officer the not. confines does (D). (C) and to under subsections potential Another ambiguity in the con- thereby them from excludes statute curring opinion is its statement that “the (B). any subsection right proceed decision in this case does not cover situa- provides: Specifically, the definition involving persons tions who were officers or any (A) mean officer “grievant” shall employees of the Department of at is a the who citi- employee or Service time of the passage of the Foreign States; purposes zen of the or Act.” It though Service does if they seek (C) (D), a former subparagraphs bring a suit such as brought. Of Service; or in employee of the officer or course, present case does not involve or em- of the officer case of death employee, such an officer or and in that dependent surviving or ployee, spouse But, sense it does not them. cover the fact employ- member of the officer family employment purported of a griev- ee; pre-dated post-dated ant the Foreign added). 1037a(l)(A) (Emphasis Act is a Service fact that immaterial the decision. an One who was officer or “purpose” Foreign clause Ser- employee at the the passage time of of the vice Act also refers to “officers and prevail Act cannot in a as we here suit employees.” grievance part provide It of this was a purpose charge separa- of the Service and officers tion. It is clear of wrongful that claims grievance procedure their survivors separation are not cognizable under cit- process, insure a full measure due (C) ed Foreign subsection Service just provide consideration Act. officers, grievances resolution of of such However, in this decision case does employees, and survivors. involving persons not cover situations who (Emphasis Stat. 765. were or employees officers of the added). Thus the inclusion of “former offi- ment at passage of State the time of the (C) cers and in subsection Therefore, Foreign noth- (D) exception general are rule and decision should be taken to sug- be under established such terms are to gest persons that such are barred from fil- nothing narrowly construed. There is in ing timely complaints against allegedly the case that calls for dicta wrongful “separation[s]” under 22 U.S.C. concurring opinion. 1037a(l)(B) they may per- Concurring of Circuit ED- ceived as “former officers or employees” WARDS, in which Circuit WALD following disputed separation. The deci- joins: expresses sion this point be- cause the issue is not light lengthy of the and convoluted raised case, claim.1 history important of this to note
the narrow limits of the court’s respect appellant’s claim under Service Act. pur-
The facts indicate that Mr. Schuler
sued his administrative claim before the long Service Grievance Board separated he had been from the Service. al., R. Edward DeVAUGHN et also facts reveal that Schuler was nev- er an active officer or COLUMBIA, The DISTRICT OF time after the Municipal Corporation al., et David passage applicable provisions Miller, Appellant. Santee Service Act. His before the Grievance solely Board rested No. 78-1679. *7 1037a(l)(C), claim under 22 U.S.C. Appeals, States Court of applies to “former or employee[s]” officer[s] District of Columbia Circuit. “an allege who or fi- allowance other arbitrarily, nancial benefit has been denied June 1980. capriciously, contrary regulation.” facts, these Given court has, believe, correctly ruled that Schuler’s
claim must fail because the heart of his concurring opinion Since the Mac- three after the occurrence or occurrences Kinnon attributes giving conclusions to me that grievance cannot rise . to the . . concurrence, my found in 1037a(3). Therefore, I find it unneces- sary speculations respond timely “complaints contained officers who file in his concurrence. separation” (B), presumably under subsection theory they regard- As for cannot be barred on MacKinnon’s observations ing scope permissible actions under become “former or officers” follow- 1037a(l)(B), separation. my sufficient to note that sub- As noted (B) upon concurrence, expresses makes no opin- distinctions based curiam present employment grievant. point ion on this issue was Furthermore, “grievance” may be filed under raised Schuler’s claim. 1037a(l)(B) “presented period if