Young v. United States, No. 73-1621.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtWISDOM, AINSWORTH and GEE, Circuit
Citation498 F.2d 1211
PartiesDavid A. YOUNG, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Decision Date15 August 1974
Docket NumberNo. 73-1621.

498 F.2d 1211 (1974)

David A. YOUNG, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 73-1621.

United States Court of Appeals, Fifth Circuit.

August 15, 1974.


498 F.2d 1212

Bruce Baldwin, Burleson, Bondies, Baldwin & Pate, Dallas, Tex., for plaintiff-appellant.

Frank D. McCown, Fort Worth, Tex., Roger J. Allen, Asst. U. S. Atty., Dallas, Tex., Thomas W. Petersen, Court of Claims Sec., Civ. Div. U. S. Dept. of Justice, Washington, D. C., for defendant-appellee.

Before WISDOM, AINSWORTH and GEE, Circuit Judges.

WISDOM, Circuit Judge:

In this suit, David A. Young, the plaintiff-appellant, sought judicial review of the action of the Army and Air Force Exchange Service, a non-appropriated fund instrumentality of the United States,1 separating (discharging) him from his position with the Exchange Service as architect. The district court dismissed the complaint on grounds discussed below. We reverse in part, and hold that the plaintiff is entitled to judicial review under the Administrative Procedure Act.

I.

The Complaint.

Young brought this action against the United States on September 24, 1971. On December 22, 1972, he filed his third amended complaint, consisting of five counts. Jurisdiction over the first count was grounded on the Tucker Act, 28 U.S.C. § 1346(a)(2) and 31 U.S.C. § 724a. Young alleged that on November 17, 1966, he was employed by the Army and Air Force Exchange Service "to perform general duties as an architect". More specifically, he asserted: "Plaintiff had no fixed tenure of service, no fixed emolument, and no fixed duties to perform. He was responsible for such duties as the Exchange Service assigned to him, held his job at the will

498 F.2d 1213
of the Exchange Service and discharged only such duties as the Exchange Service assigned him. He had no supervisory authority and all his work was reviewed by higher authority for approval or rejection prior to implementation." The plaintiff was discharged from this employment on or about May 15, 1970.2

The first count argues that the alleged "acts and omissions" of the Exchange Service constituted a breach of the "express or implied contract" of employment which the plaintiff and the defendant entered into when the plaintiff joined the Exchange Service. Count one characterized the terms of this "express or implied contract" as follows:

"In exchange for plaintiff\'s services as an architect, defendant would act in substantial compliance with the
498 F.2d 1214
laws and the rules and regulations defendant did promulgate from time to time and regulate the relationship between its instrumentality and/or agency, to-wit: the Exchange Service, with the employees of such Exchange Service, including plaintiff herein."

Count one sought reinstatement to the position plaintiff held before discharge and damages, "measured by plaintiff's annual salary with defendant," of an amount "not to exceed at least $10,000".

The second count sought to establish jurisdiction under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671 et seq., and alleged the same factual basis as the first. It sought damages of "at least $20,000, which damages are continuing and measured by plaintiff's annual salary".

The third, fourth, and fifth counts, predicated on the same factual basis, sought to invoke jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Count three alleged that the discharge was "arbitrary, capricious and an abuse of discretion, without observance of procedure required by law, and unsupported by substantial evidence". Count four asserted a denial of due process under the Fourteenth Amendment of the United States Constitution, but made no mention of the Fifth Amendment. (The dismissal of this count has not been urged as error in this appeal.) Count five alleged, in addition, that:

"Plaintiff as a veteran was a preference eligible employee within the meaning of 5 U.S.C. § 7512; by reason of such status, plaintiff could be discharged only for such cause as would promote the efficiency of the service. That such status of plaintiff was such a property right held by plaintiff in his continued employment as to entitle him to the due process guarantees of the Fifth Amendment to the United States Constitution. . . . . That contrary to such guarantees, as aforesaid, plaintiff was denied due process of law in that he was discharged without being allowed a full evidentiary hearing prior to termination3 he was denied the right to a list of specific charges against him; he was denied the right to be heard by an impartial hearing officer, but on the contrary, the same agency official that initiated the action against plaintiff did make the decision to remove plaintiff pending plaintiff\'s formal grievance hearing; plaintiff was denied the right to confront and cross-examine adverse witnesses, and plaintiff was denied a written decision indicating the reasons for his discharge and the evidence relied thereupon; all such denials being made by defendant prior to plaintiff\'s formal grievance hearing on his discharge."

Included in the record and relevant to the first count is an affidavit of the plaintiff which states, in pertinent part:

"When plaintiff first became employed by the Army and Air Force Exchange Service, he was forwarded a letter offering him employment as an architect and he replied to such offer by a letter of acceptance sent to the Army and Air Force Exchange Service. Further, all reference checks were satisfactory and deponent completed his probationary period."

On motion of the United States, the district court entered an order dismissing the action on the grounds (a) that the plaintiff's employment relationship with the Exchange Service did not constitute a contractual relationship that could give rise to an action under the Tucker Act, 28 U.S.C. § 1346(a)(2), (b), that the action could not be maintained under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., and (c) that the court had no jurisdiction over the matter either under the

498 F.2d 1215
Administrative Procedure Act, 5 U.S.C. § 701 et seq., or 42 U.S.C. § 1983

II.

Jurisdiction under the Tucker Act.

In 1970, Congress amended the Tucker Act, 28 U.S.C. § 1346(a), to provide, in pertinent part:

"(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
. . . . . .
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidation or unliquidated damages in cases not sounding in tort. For the purposes of this paragraph, an express or implied contract with the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be considered an express or implied contract with the United States." (Matter added by 1970 amendments italicized.)

A similar amendment was made to 28 U.S.C. § 1491, the general jurisdictional grant to the Court of Claims. The legislative history indicates that these amendments were intended to fill a gap in the Tucker Act's waiver of immunity of the United States to claims based upon contracts with certain nonappropriated fund instrumentalities of the United States, which were regarded as "anamolies of the law." 1970 U.S. Code Cong. & Admin.News p. 3478. Unfortunately, the history does not reveal the precise nature and extent of the loophole. The scope of the bill was narrowed considerably before passage, from coverage of any "nonappropriated fund activity of or under the United States or a department or agency of the United States" in an early version to the specifically enumerated instrumentalities under the aegis of the Defense Department or the National Aeronautics and Space Administration set forth in the amendments finally enacted, as quoted above. This constriction of scope reflected the traditional caution of Congress in waivers of sovereign immunity, coupled with a belief that the waiver in question should affect only instrumentalities that were capable of reimbursing the United States for money judgments incurred on their account and "`subject to control by the responsible officials of the Government'" S.Rep.No.268 on S.980, 91st Cong., 1st Sess. (1969) at 5.

A parallel concern with defining the sort of "contract" that would be involved in the suits permitted by the amendments is, however, absent. There are scattered references in the House and Senate Reports and the appended documents submitted by interested federal agencies to "procurement activities," "contractors," "contracts with third parties," and so forth. Similarly, there are passing references to employees of these instrumentalities, in such contexts as the assertion that "employees' associations organized by employees for their benefit" under state law are not nonappropriated fund instrumentalities of the United States, S.Rep.No.268 on S.980, 91st Cong., 1st Sess. (1969), at 9, or the mention of the liability the United States presumably has under the Federal Tort Claims Act for torts committed by employees of nonappropriated fund instrumentalities acting in the scope of their employment, id. at 2. Nowhere in the history of the amendments is there any direct reference to the relationship between the instrumentalities and their employees, much less any language that would support an inference that Congress intended these amendments as a vehicle for redressing grievances of employees of these instrumentalities as well as settling claims of third parties with whom the instrumentalities contract for goods and services.

Nor is this all. This history of the statute itself is as relevant to our inquiry here as the history of its 1970

498 F.2d 1216
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25 practice notes
  • American Fed. of Gov. Employees, Loc. 1858 v. Callaway, Civ. A. No. 75-G-652-NE.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • June 18, 1975
    ...presently performed by the personnel of that private contractor. The Fifth Circuit held last year in the case of Young v. United States, 498 F.2d 1211 (5th Cir. 1974), that a federal employee could invoke the Administrative Procedure Act to secure review of his separation from federal servi......
  • Slattery v. United States, Nos. 2007–5063
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • January 28, 2011
    ...employment contracts with exchanges. See 427 U.S. at 124, 96 S.Ct. 2508 (resolving conflicting rulings between Young v. United States, 498 F.2d 1211 (5th Cir.1974) and Hopkins v. United States, 513 F.2d 1360 (Ct.Cl.1975)). The Court observed that the 1970 amendment returned the military exc......
  • Miller v. U.S. Dept. of Agr. Farm Services Agency, No. 97-6575
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 17, 1998
    ...outside the protections of the CSRA, Miller already has a statutory right to judicial review under the APA. See, Young v. United States, 498 F.2d 1211, 1218 (5th Cir.1974); 3 see also Franks v. Nimmo, 796 F.2d 1230, 1239-40 (10th Cir.1986); Heaney v. United States Veterans Admin., 756 F.2d ......
  • Sheehan v. Army and Air Force Exchange Service, No. 79-1471
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 27, 1980
    ...States v. State Tax Commission of Mississippi, 421 U.S. 599, 606, 95 S.Ct. 1872, 1877, 44 L.Ed.2d 404 (1975); see Young v. United States, 498 F.2d 1211, 1215 (5th Cir. 1974); cf. Standard Oil Co. of California v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611 (1942) (nonappr......
  • Request a trial to view additional results
25 cases
  • American Fed. of Gov. Employees, Loc. 1858 v. Callaway, Civ. A. No. 75-G-652-NE.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • June 18, 1975
    ...presently performed by the personnel of that private contractor. The Fifth Circuit held last year in the case of Young v. United States, 498 F.2d 1211 (5th Cir. 1974), that a federal employee could invoke the Administrative Procedure Act to secure review of his separation from federal servi......
  • Slattery v. United States, Nos. 2007–5063
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • January 28, 2011
    ...employment contracts with exchanges. See 427 U.S. at 124, 96 S.Ct. 2508 (resolving conflicting rulings between Young v. United States, 498 F.2d 1211 (5th Cir.1974) and Hopkins v. United States, 513 F.2d 1360 (Ct.Cl.1975)). The Court observed that the 1970 amendment returned the military exc......
  • Miller v. U.S. Dept. of Agr. Farm Services Agency, No. 97-6575
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 17, 1998
    ...outside the protections of the CSRA, Miller already has a statutory right to judicial review under the APA. See, Young v. United States, 498 F.2d 1211, 1218 (5th Cir.1974); 3 see also Franks v. Nimmo, 796 F.2d 1230, 1239-40 (10th Cir.1986); Heaney v. United States Veterans Admin., 756 F.2d ......
  • Sheehan v. Army and Air Force Exchange Service, No. 79-1471
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 27, 1980
    ...States v. State Tax Commission of Mississippi, 421 U.S. 599, 606, 95 S.Ct. 1872, 1877, 44 L.Ed.2d 404 (1975); see Young v. United States, 498 F.2d 1211, 1215 (5th Cir. 1974); cf. Standard Oil Co. of California v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611 (1942) (nonappr......
  • Request a trial to view additional results

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