Concurring opinion of
Circuit Judge EDWARDS, in which Circuit Judge WALD joins:In light of the lengthy and convoluted history of this case, it is important to note the narrow limits of the court’s opinion with respect to the appellant’s claim under the Foreign Service Act.
The facts indicate that Mr. Schuler pursued his administrative claim before the Foreign Service Grievance Board long after he had been separated from the Service. The facts also reveal that Schuler was never an active officer or employee at the Department of State at any time after the passage of the applicable provisions of the Foreign Service Act. His complaint before the Grievance Board rested solely on a claim under 22 U.S.C. § 1037a(l)(C), which applies to “former officer[s] or employee[s]” who allege that “an allowance or other financial benefit has been denied arbitrarily, capriciously, or contrary to applicable law or regulation.” Given these facts, the court has, I believe, correctly ruled that Schuler’s claim must fail because the heart of his grievance was a charge of wrongful separation. It is clear that claims of wrongful separation are not cognizable under the cited subsection (C) in the Foreign Service Act.
However, the decision in this case does not cover situations involving persons who were officers or employees of the Department of State at the time of the passage of the Foreign Service Act. Therefore, nothing in the decision should be taken to suggest that such persons are barred from filing timely complaints against allegedly wrongful “separation[s]” under 22 U.S.C. § 1037a(l)(B) because they may be perceived as “former officers or employees” following a disputed separation. The decision expresses no opinion on this point because the issue is not raised by Schuler’s claim.1
. Since the concurring opinion of Judge MacKinnon attributes conclusions to me that cannot be found in my concurrence, I find it unnecessary to respond to the speculations contained in his concurrence.
As for Judge MacKinnon’s observations regarding the scope of permissible actions under § 1037a(l)(B), it is sufficient to note that subsection (B) makes no distinctions based upon the present employment status of a grievant. Furthermore, a “grievance” may be filed under § 1037a(l)(B) if “presented within a period of three years after the occurrence or occurrences giving rise to the grievance . . . 22 U.S.C. § 1037a(3). Therefore, employees and officers who file timely “complaints against separation” under subsection (B), presumably cannot be barred on a theory that they have become “former employees or officers” following a wrongful separation. As noted in my concurrence, the per curiam expresses no opinion on this point because the issue was not raised by Schuler’s claim.