Orona v. United States

4 Cl. Ct. 81, 1983 U.S. Claims LEXIS 1546
CourtUnited States Court of Claims
DecidedDecember 12, 1983
DocketNo. 663-82C
StatusPublished
Cited by5 cases

This text of 4 Cl. Ct. 81 (Orona 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
Orona v. United States, 4 Cl. Ct. 81, 1983 U.S. Claims LEXIS 1546 (cc 1983).

Opinion

[82]*82OPINION

COLAIANNI, Judge:

This case, in which plaintiff seeks review of the propriety of his discharge from the Army and Air Force Exchange Service (AAFES), is now before the court on defendant’s alternative motions for dismissal of plaintiff’s complaint or for summary judgment. Plaintiff sought review pursuant to the Tucker Act, 28 U.S.C. §§ 1346(a)(2) and 1491(a)(1), arguing that his claim was for breach of an employment contract. This court finds, for the reasons stated below, that plaintiff’s employment by the AAFES was through appointment and not by contract, and therefore this court has no jurisdiction under the Tucker Act to consider his claim. Plaintiff also alleged jurisdiction pursuant to 28 U.S.C. § 1631, but that statute merely provides for transfer of a case to a court in which it initially could have been brought. It is not an independent grant of jurisdiction.

Facts

On December 8, 1981, Mr. Orona was discharged for cause from his employment with the AAFES. Mr. Orona had been employed by the AAFES since June 6,1955, and at the time of his removal was designated the Automotive Activity Manager for the service station at Holloman Air Force Base. In his amended complaint, plaintiff states that AAFES based the dismissal on his “failure to properly discharge his duties as Automotive Activity Manager thereby resulting in the non-discovery of a major gasoline leak which caused an economic loss to AAFES of approximately $175,000.00 and created a serious safety and health hazard in the vicinity of the Holloman AFB service station.”

Mr. Orona appealed his discharge and, on April 6,1982, was afforded a full evidentiary hearing before an AAFES hearing examiner. At that hearing, plaintiff was represented by counsel and “was afforded the opportunity to cross-examine witnesses, examine all documentary evidence against him, and introduce testimonial and documentary evidence in his behalf.” Amended complaint at 3. Based upon the evidence presented, the hearing examiner recommended that plaintiff’s removal for cause be set aside. The hearing examiner noted that, as an alternative to discharge for cause, plaintiff could be discharged for disability because of plaintiff’s physical ailments.

On July 14, 1982, the Deputy Commander, AAFES, acting as appellate authority, denied plaintiff’s appeal and confirmed the discharge for cause, effective December 10, 1981. Mr. Orona received written notice of this final decision on July 16, 1982.

Plaintiff next sought judicial relief. He originally filed this action on August 16, 1982, in the United States District Court for the District of New Mexico, seeking reinstatement and back pay for the period of discharge. That court ruled, on December 14, 1982, that it had no jurisdiction to hear plaintiff’s claim “since both parties acknowledge that the claim against the United States exceeds $10,000 and the jurisdiction of the United States Claims Court is, therefore, exclusive.” Pursuant to 28 U.S.C. § 1631, the district court transferred the case to this court. Plaintiff amended his complaint on March 1, 1983, invoking the jurisdiction of this court under 28 U.S.C. §§ 1346(a)(2), 1491(a)(1), and 1631.

On May 2, 1983, defendant moved to dismiss the amended complaint, pursuant to RUSCC 12(b)(1), arguing that this court lacks subject matter jurisdiction over the action. Defendant based its motion to dismiss on the recent case of Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982), which held that the Tucker Act does not grant the federal courts jurisdiction to review an employee’s discharge by the AAFES when that employee obtained his position by appointment rather than contract.

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Bluebook (online)
4 Cl. Ct. 81, 1983 U.S. Claims LEXIS 1546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orona-v-united-states-cc-1983.