James O. Gorman v. Army and Air Force Exchange Service

Fifth Circuit

James O. Gorman v. Army and Air Force Exchange Service

619 F.2d 1141, 1980 U.S. App. LEXIS 16198

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 27, 1980

Docket79-1495

StatusPublished

Cited by2 cases

This text of 619 F.2d 1141 (James O. Gorman v. Army and Air Force Exchange Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

James O. Gorman v. Army and Air Force Exchange Service, 619 F.2d 1141, 1980 U.S. App. LEXIS 16198 (5th Cir. 1980).

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Opinion

REAVLEY, Circuit Judge:

As in Sheehan v. Army & Air Force Exchange Service, No. 79—1471, 619 F.2d 1132 (5th Cir. 1980), the sole issue on this appeal is whether the district court possessed subject matter jurisdiction to con *1142 sider an action alleging wrongful discharge. This suit was initiated by James Gorman against the Army & Air Force Exchange Service (“AAFES”) after administrative remedies proved futile.

Gorman was employed as a merchandising specialist with the AAFES in its Executive Management Program. He received final notice of separation and thereafter exhausted administrative appeal. Suit was filed in the district court against the AAFES alleging that the discharge was (1) arbitrary and capricious and an abuse of discretion, (2) not in accordance with the AAFES personnel rules and regulations, (3) a deprivation of due process, and (4) not supported by substantial evidence. Gorman sought reinstatement; back pay, along with restoration of all other employment benefits; an attorney’s fee; and costs. The district court dismissed the suit for want of subject matter jurisdiction.

Today in Sheehan we hold that the district court had subject matter jurisdiction for a virtually identical suit under a confluence of 28 U.S.C. §§ 1331(a), 1346(a)(2) (1976) and 5 U.S.C. § 702 (1976). Although sections 1331(a) and 1346(a)(2) were not specified as bases for jurisdiction in Gor-man’s complaint, since the allegations meet the statutory requirements, the lower court had jurisdiction despite the omission. See Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607 n.6, 98 S.Ct. 2002, 2005 n.6, 56 L.Ed.2d 570 (1978); Schlesinger v. Councilman, 420 U.S. 738, 744 n.9, 95 S.Ct. 1300, 1306, 43 L.Ed.2d 591 (1975). For the reasons stated in Sheehan, we hold that the lower court had subject matter jurisdiction.

REVERSED AND REMANDED.

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REAVLEY, Circuit Judge:

As in Sheehan v. Army & Air Force Exchange Service, No. 79—1471, 619 F.2d 1132 (5th Cir. 1980), the sole issue on this appeal is whether the district court possessed subject matter jurisdiction to con *1142 sider an action alleging wrongful discharge. This suit was initiated by James Gorman against the Army & Air Force Exchange Service (“AAFES”) after administrative remedies proved futile.

Gorman was employed as a merchandising specialist with the AAFES in its Executive Management Program. He received final notice of separation and thereafter exhausted administrative appeal. Suit was filed in the district court against the AAFES alleging that the discharge was (1) arbitrary and capricious and an abuse of discretion, (2) not in accordance with the AAFES personnel rules and regulations, (3) a deprivation of due process, and (4) not supported by substantial evidence. Gorman sought reinstatement; back pay, along with restoration of all other employment benefits; an attorney’s fee; and costs. The district court dismissed the suit for want of subject matter jurisdiction.

Today in Sheehan we hold that the district court had subject matter jurisdiction for a virtually identical suit under a confluence of 28 U.S.C. §§ 1331(a), 1346(a)(2) (1976) and 5 U.S.C. § 702 (1976). Although sections 1331(a) and 1346(a)(2) were not specified as bases for jurisdiction in Gor-man’s complaint, since the allegations meet the statutory requirements, the lower court had jurisdiction despite the omission. See Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607 n.6, 98 S.Ct. 2002, 2005 n.6, 56 L.Ed.2d 570 (1978); Schlesinger v. Councilman, 420 U.S. 738, 744 n.9, 95 S.Ct. 1300, 1306, 43 L.Ed.2d 591 (1975). For the reasons stated in Sheehan, we hold that the lower court had subject matter jurisdiction.

REVERSED AND REMANDED.

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619 F.2d 1141, 1980 U.S. App. LEXIS 16198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-o-gorman-v-army-and-air-force-exchange-service-ca5-1980.

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