The opinion
MADDEN, Judge,
concurs.
WHITAKER, Judge, delivered the following opinion, in which JONES, Chief Judge, joins.
*832 These cases present an aspect of the applicability of the statute of limitations which is entirely different from that presented in Furlong v. United States, Ct. CL, 146 F.Supp. 823 ; and Levadi v. United States, Ct.Cl., 146 F.Supp. 455 . In -the present case plaintiffs’ rights are not dependent on the action of a board or agency, bust exist or not entirely independently thereof. However, I do not agree that plaintiffs’ causes of action accrued on each pay period.
Judge Littleton’s opinion correctly states;
“A cause of action of whatever nature can accrue only at the time that a suit may be maintained thereon, and from that date forward the applicable statute of limitation begins to run. * * * ”
The first date on which plaintiffs could have instituted a suit in this court was the date upon which the Civil Service Commission rendered its decision. A suit instituted earlier was subject to dismissal on motion on the ground that plaintiff had failed to exhaust his administrative remedies. Martilla v. United States, 118 Ct.Cl. 177 ; Adler v. United States, Ct.Cl., 146 F.Supp. 956 , and related cases, certiorari denied Baker v. United States, 77 S.Ct. 131 .
The law vests in the Civil Service Commission jurisdiction to hear complaints of violations of the civil service law and regulations. In the absence of unusual circumstances, no court will entertain a suit to adjudicate an employee’s claim until that Commission acts or delays unreasonably to act. Hence, his cause of action does not accrue until immediately after it has acted, and the statute of limitations does not begin to run until then. Otherwise stated, the statute is tolled until after plaintiff has completed pursuit of a remedy for the alleged wrong done him before the administrative tribunal given jurisdiction of such matters by Congress. After this tribunal has acted the statute begins to run.
This is true, I think, in this case, notwithstanding the fact that the Civil Service Commission could not order plaintiffs restored to their positions and order the payment to them of the pay of which they say they have been illegally deprived. This is because the Civil Service Commission is the body set up by Congress to see to it that the civil service laws are faithfully carried out, and to hear complaints of employees who think their rights haye been violated. Since this is the body created by Congress to do this, it would be out of order for a court to entertain a suit by an employee until this body had had an opportunity to act.
Although its power was limited, it was still the body vested by Congress with supervision over the administration of the civil service laws.
As the Supreme Court said in United States v. Abilene & Southern Railway Co., 265 U.S. 274 , 44 S.Ct. 565 , 68 L.Ed. 1016 , the denial or grant of relief before the exhaustion of all administrative remedies is a matter for the exercise of judicial discretion. I think it discreet, ordinarily, to refuse to entertain a suit until the Civil Service Commission has had a chance to pass on the matter.
If we refuse to pass on it until after the Civil Service Commission has acted, then the statute against a suit in this court should not run while the Commission is considering the matter. Thus, if an employee is discharged on April 1, say, and the Commission does not act on the propriety of his discharge until, say, October 1, plaintiff should not be barred from collecting pay that would have accrued on May 1, June 1, July 1, August 1, September 1, and October 1, provided the petition in this Court is filed within six years of October 1, the first day we would have entertained a suit.
Since plaintiffs’ suits were filed within six years of the action of the Civil Service Commission, I am of opinion that plaintiffs are entitled to recover all the pay of which they have been illegally deprived. Although a payment was due *833 more than six years before the filing of the petition, the period of limitation on a suit on it does not commence to run until after the Civil Service Commission has acted. The foregoing is, of course, on the assumption that there was no undue delay in appealing to the Civil Service Commission.
I call attention to the distinction we have heretofore pointed out with respect to the tolling of the statute of limitations while administrative remedies are being pursued. The statute is tolled while mandatory administrative remedies are being pursued, but not while optional ones are being pursued. In the cases at bar resort to the Civil Service Commission must be considered a prerequisite to an employee’s right to ask a court to adjudicate his claim, in the absence of unusual circumstances, such as those in Cuiffo v. United States, 131 Ct.Cl. 60 .
Under Judge Littleton’s opinion plaintiffs are entitled to recover only such payments as were due to be paid within six years prior to the filing of the petitions. The Chief Judge and I agree they are entitled to this recovery, but, in addition, we think they are entitled to recover payments becoming due while the Civil Service Commission was considering the matter, since their petitions were filed within six years of the action of the Civil Service Commission. Since only two judges concur in this view, judgment can be rendered only for those payments becoming due within six years of the filing of the petitions, four judges agreeing plaintiffs are entitled to recover this much.