dissenting:
My colleagues strive bravely to resurrect a claim that expired almost thirty years ago but in my opinion their attempt is a failure. I would affirm the judgment of the District Court.
In his complaint Schuler (1) “appeals denial of jurisdiction by the Foreign Service Grievance Board” and (2) alleges breach of his employment contract “by the Department’s dismissal of plaintiff in 1944 and subsequent conduct regarding him.” He requests that the court grant the following relief:
(1) “De novo review of plaintiff’s claim that his dismissal was illegal”;
(2) “Declaration that plaintiff’s dismissal from the Foreign Service in 1944 was illegal”;
(3) Orders compelling the State Department to expunge and correct plaintiff’s personnel records;
(4) Determination that plaintiff “is entitled to all monetary, pension, status, and other benefits that would have accrued to him in his career as a Foreign Service Officer since 1944”; and
(5) Judgment in the amount of $9,999.99 for breach of his employment contract.
The majority concedes that Schuler’s separation in 1944 was not unlawful, because his only quarrel with the Government’s actions at that time was that he was not permitted to resign but was fired. In any event his lawsuit in the District Court seeking reinstatement and damages for breach of contract on the basis of that 1944 action was barred by the statute of limitations. 28 U.S.C. § 2401. Those claims accrued in 1944 when he was separated. He argues in this court that in 1944 he was in a state of “blameless ignorance” of the facts, so that the statute was tolled, but that theory is untenable. Fitzgerald v. Seamans, 384 F.Supp. 688 (D.D.C.1974); Fitzgerald v. Seamans, 180 U.S.App.D.C. 75, 553 F.2d 220 (1977); Prather v. Neva Paperbacks, Inc., 446 F.2d 338 (5th Cir. 1971); Moviecolor Limited v. Eastman Kodak Co., 288 F.2d 80 (2d Cir. 1961); Tinkoff v. United States, 211 F.2d 890 (7th Cir. 1954); Hebern v. United States, 132 F.Supp. 451, 132 Ct.Cl. 344 (1955); Morgan v. Koch, 419 F.2d 993 (7th Cir. 1969).
The majority also holds, and I agree, that the Foreign Service Grievance Board had no jurisdiction to correct Schuler’s personnel files.
Having reduced Schuler’s case to this little measure the majority finally concludes “that in some respects it is covered by the . ‘financial benefit,’ provision” of 22 U.S.C. § 1037a (1976). That provision, 22 U.S.C. § 1037a(l)(C) provides:
[W]hen the grievant is a former officer or employee or a surviving spouse or dependent family member of 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;
I am unable to accept the majority’s conclusion.
The provision of the Foreign Service Act creating .the Foreign Service Grievance Board sharply distinguishes between griev-ants who are officers or employees and those who are former officers or employees. Thus under 22 U.S.C. § 1037a(l)(B) the Board is authorized in the case of an officer or employee to consider, among other things, “complaints against separation of an officer or employee allegedly contrary to law or regulation or predicated upon alleged inaccuracy (including inaccuracy resulting from omission of any relevant and material document) or falsely prejudicial character of any part of the grievant’s official personnel record”. The Board may also hear complaints concerning “alleged inaccuracy, error, or falsely prejudicial material in the grievant’s official personnel file”. In *611the case of a former officer or employee however the Board may consider only “a complaint that an allowance or other financial benefit has been denied arbitrarily, capriciously, or contrary to applicable law or regulation”. 22 U.S.C. § 1037a(l)(C). In short the Board has no jurisdiction to review the separation of a former employee or to order his reinstatement.
The phrase “financial benefits” in 22 U.S.C. § 1037a(l)(C) refers to pay, allowances, pension rights and the like accruing to a foreign service officer or employee as incidents of his employment. When Schu-ler was lawfully separated in 1944 his rights to those benefits as of 1944 were terminated. He could not reacquire such rights unless he again became a foreign service officer or employee. But the Foreign Service Board had no power to reinstate him. In these circumstances I cannot understand how the Board could possibly have jurisdiction to award him financial benefits relating to his employment. He had no employment and the Board was powerless to create employment for him.
Finally, it should be emphasized that in his petition to the Foreign Service Board Schuler “requested a prompt hearing at which additional documents and witnesses might be presented to show the illegality of his dismissal from the Foreign Service and to set aside the findings of the Board of Foreign Service Personnel in 1944.” It is plain that Schuler’s case before the Board consisted of an attack on his dismissal in 1944. The proceeding before the Board was thus limited to a consideration of that dismissal and of the Board’s jurisdiction to review it. That was also the case in the District Court; the “financial benefit” theory now advanced by the majority was never presented either to the Board or to the District Court. It seems to me that the majority goes too far in its “spacious” treatment of the pleadings when it faults the Board and the District Court for failing to consider a claim that was never presented to them.
I respectfully dissent.