Nimro v. Davis, 11214.

• Decision Date: 28 May 1953
• Docket Number: No. 11214.,11214.
• Parties: NIMRO v. DAVIS et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

92 US App. DC 293, 204 F.2d 734 (1953)

NIMRO v. DAVIS et al.

No. 11214.

United States Court of Appeals District of Columbia Circuit.

Argued February 9, 1953.

Decided May 28, 1953.

Mr. Charles F. O'Neall, Washington, D. C. (appointed by this Court) for appellant.

Mr. Lewis A. Carroll, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Charles M. Irelan, U. S. Atty., Washington, D. C., at the time of argument, and William R. Glendon, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellees. Messrs. Joseph M. Howard and Joseph F. Goetten, Asst. U. S. Attys., Washington, D. C., at the time record was filed, entered appearances for appellees. Mr. William E. Kirk, Jr., Asst. U. S. Atty., Washington, D. C., at the time of argument, also entered an appearance for appellees.

Before CLARK, PROCTOR and FAHY, Circuit Judges.

PROCTOR, Circuit Judge.

Bernard P. Nimro, appellant, complained in the District Court against "Admiral Glen B. Davis, U. S. N.," and other named officers and civilians "as administrators, directors, custodians of the lunch room fund, members of the board of governors of the Naval Gun Factory Lunchroom Committee," for alleged services rendered and expenses incurred, claiming in all the sum of $33,367.70. By joint answer defendants attacked the complaint for failure to state a claim upon which relief could be granted, denied the court's jurisdiction over the subject matter, and also denied the plaintiff's allegations as to services and expenses. They also moved for summary judgment, supporting the motion by annexing verified copies of data bearing upon the status of the Board. Upon consideration of the pleadings and record the court granted the motion and dismissed the complaint upon the ground that the suit was one against the United States without its consent. That is the question now before us.

The Board is composed of naval officers and civilian employees of the Naval Gun Factory, appointed by its Superintendent, a naval officer assigned by the Secretary of the Navy. In making the appointments the Superintendent acted pursuant to "Navy Civilian Personnel Instructions," referred to as NCPI 66, issued October 10, 1949, by the Undersecretary of the Navy. These instructions (T.R.11)¹ form a comprehensive set of directives to govern the establishment and operation of employee services in naval establishments, the purpose being "to make available for them where necessary those facilities which reduce to a minimum interruptions of work for personal affairs, and to provide bases for the development and continuance of interest in their jobs and places of work." Only services which contribute "to morale, job interest, cooperation, better attendance, health, and productive output," are justified under the program. Employee services are declared to be an "integral part of the Industrial Relations Program, and as such should consist only of facilities which contribute to the efficiency of the service." (Emphasis ours.)

Section 4 of the instructions relates directly to food services. (T.R.14.) It is asserted to be the policy of the Navy Department to make such facilities available, where necessary and practicable, for the benefit of all employees of an activity, through the medium of employee representatives, who determine operating policies and procedures, subject to approval of the head of the activity (the Superintendent of the Factory). Normally "employee organization" and participation may be initiated through appointment by the head of the activity of a five to seven member Cafeteria Association, "responsible for developing, recommending, and executing plans for operation of the food service, subject to approval of the head of the activity." The operation may be carried on through agreement with a concessionaire (as in the present case), in which event a contract shall be made between the Association and the concessionaire, and bear the signature of the head of the activity (the Superintendent) only as to approval of the terms of the contract and use of the facilities of the activity.² Income of the Board from the food service is to be used primarily for improving the same, secondarily for such welfare and recreation as will benefit the employees of the activity. (T.R.15.) Members of the Board receive no part of the fund for their services. Their only compensation is as regular employees of the Government. (Appellees' Brief 7.)

In discharging its responsibilities³ the Board, with approval of the Superintendent, entered into a contract with "M & M Restaurants, Inc." as "the concessionaire." The instrument, dated December 1, 1949, granted to the concessionaire the right "to operate, as an independent contractor," the cafeterias and food services in the Naval Gun Factory for one year, with provisions for automatic extensions. (T.R.21.)

Further, there was an important provision that the Board should furnish equipment for operation of the cafeterias, and replacements, additions and repairs made necessary by ordinary wear and...