Miller v. United States

Court of Claims

Miller v. United States

231 Ct. Cl. 906, 1982 U.S. Ct. Cl. LEXIS 512, 1982 WL 25803

CourtUnited States Court of Claims

DecidedAugust 20, 1982

DocketNo. 733-81C

StatusPublished

This text of 231 Ct. Cl. 906 (Miller v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. United States, 231 Ct. Cl. 906, 1982 U.S. Ct. Cl. LEXIS 512, 1982 WL 25803 (cc 1982).

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Opinion

per curiam:

Plaintiffs petition alleges that (a) the Army and Air Force Exchange Service (Exchange Service) had a contract with Gino Moreno Enterprises (Enterprises) under which Enterprises was to render certain services (including barbering) at various military installations; (b) Enterprises employed plaintiff as a supervisory barber at Fort Leonard Wood, Missouri; (c) at the request of officials of the Exchange Service, Enterprises discharged plaintiff; (d) the same thing occurred later at Fort Leavenworth, Kansas, and again at Tinker Air Force Base, Texas; and (e) those discharges, at the instance of Exchange Service officials, were all unwarranted and illegal. This action was first commenced in the Western District of Missouri which transferred the case to this court. Defendant has moved to dismiss; plaintiff has not answered that motion and his time has expired. We agree with the government.

First, on plaintiffs own allegations, he himself had no contract with the Exchange Service. His employer, Enterprises, was an independent contractor, and his contractual [907]*907relationship was solely with Enterprises. His case cannot, therefore, fall within an Exchange Service’s contract suit allowable in this court under United States v. Hopkins, 427 U.S. 123 (1978). See Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728 (1982).

Second, if plaintiff is alleging a right to recover money under the Tucker Act because of an alleged violation of the due process clause of the Fifth Amendment, he has chosen a tribunal which is without such jurisdiction because that constitutional provision does not mandate any compensation by the United States. Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 372 F.2d 1002 (1967). Nor are we aware of any relevant statutes providing for compensation in these circumstances. To the extent the suit is for a tort, this court plainly has no jurisdiction. 28 U.S.C. § 1491.

Third, counts two and three, which seek relief from named federal employees, are obviously beyond the jurisdiction of this court which is restricted to suits against the United States.

Accordingly, without oral argument, defendant’s motion to dismiss is granted and the petition is dismissed, it is so ORDERED .

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per curiam:

Plaintiffs petition alleges that (a) the Army and Air Force Exchange Service (Exchange Service) had a contract with Gino Moreno Enterprises (Enterprises) under which Enterprises was to render certain services (including barbering) at various military installations; (b) Enterprises employed plaintiff as a supervisory barber at Fort Leonard Wood, Missouri; (c) at the request of officials of the Exchange Service, Enterprises discharged plaintiff; (d) the same thing occurred later at Fort Leavenworth, Kansas, and again at Tinker Air Force Base, Texas; and (e) those discharges, at the instance of Exchange Service officials, were all unwarranted and illegal. This action was first commenced in the Western District of Missouri which transferred the case to this court. Defendant has moved to dismiss; plaintiff has not answered that motion and his time has expired. We agree with the government.

First, on plaintiffs own allegations, he himself had no contract with the Exchange Service. His employer, Enterprises, was an independent contractor, and his contractual [907]*907relationship was solely with Enterprises. His case cannot, therefore, fall within an Exchange Service’s contract suit allowable in this court under United States v. Hopkins, 427 U.S. 123 (1978). See Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728 (1982).

Second, if plaintiff is alleging a right to recover money under the Tucker Act because of an alleged violation of the due process clause of the Fifth Amendment, he has chosen a tribunal which is without such jurisdiction because that constitutional provision does not mandate any compensation by the United States. Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 372 F.2d 1002 (1967). Nor are we aware of any relevant statutes providing for compensation in these circumstances. To the extent the suit is for a tort, this court plainly has no jurisdiction. 28 U.S.C. § 1491.

Third, counts two and three, which seek relief from named federal employees, are obviously beyond the jurisdiction of this court which is restricted to suits against the United States.

Accordingly, without oral argument, defendant’s motion to dismiss is granted and the petition is dismissed, it is so ORDERED .

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231 Ct. Cl. 906, 1982 U.S. Ct. Cl. LEXIS 512, 1982 WL 25803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-united-states-cc-1982.

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