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LUNETTO v. UNITED STATES

March 31, 1983

BENJAMIN LUNETTO, JR., PLANTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Benjamin Lunetto, Jr. ("Lunetto") has sued the United States pursuant to 28 U.S.C. § 1346(a)(2),*fn1 28 U.S.C. § 1331,*fn2 5 U.S.C. § 701,*fn3 the Fifth Amendment, and 28 U.S.C. § 1361,*fn4 seeking monetary damages and reinstatement to his employment as a Facilities Maintenance Manager in the Navy Exchange Service. Presently pending before the Court is the United States' motion to dismiss Lunetto's First Amended Complaint,*fn5 or in the alternative for summary judgment. For reasons set forth below, the United States' motion for summary judgment as to Count II is granted; the United States' motion to dismiss is granted as to Counts I and III.

Facts

Lunetto had been employed as the Facilities Maintenance Manager of the Navy Exchange at Great Lakes, Illinois. On September 2, 1980, he received, in the form of a letter, a thirty day advance notice of proposed disciplinary action and suspension. The notice charged Lunetto with a first offense of the unauthorized use of government facilities, property and manpower, in violation of Navy Regulations. On September 5, 1980, Lunetto was terminated from his position effective October 2, 1980, in a letter from the Naval Exchange Officer, Captain L.C. Gray. Captain Gray affirmed his decision in a letter dated September 26, 1980. A hearing was conducted on March 16, 1981, before hearing Officer John J. O'Connor at the Naval Training Center, Great Lakes. Based upon evidence presented, O'Connor recommended that Captain Gray's decision be sustained. The Commanding Officer of the Naval Administrative Command affirmed the decision to terminate Lunetto in a letter of April 28, 1981. On March 24, 1982, the Commander of the Navy Resale and Service Support Office upheld the termination, finding Lunetto's termination to be neither arbitrary, capricious nor an abuse of discretion. Lunetto thus exhausted all administrative remedies available to him prior to filing the instant lawsuit.

Legal Standards

Motion To Dismiss:

In deciding the instant motion to dismiss, we must take the allegations of Lunetto's complaint as true and view them, and any reasonable inferences to be drawn from them, in the light most favorable to him. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). A complaint should be dismissed, moreover, only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

Motion For Summary Judgment:

In support of a motion for summary judgment, the moving party has the burden of showing that there is no dispute as to any genuine issue of fact material to a judgment in his favor as a matter of law. Cedillo v. International Association of Bridge & Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir. 1979). The nonmoving party is entitled to all reasonable inferences that can be made in its favor from the evidence in the record. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Moutoux v. Gulling Auto Electric, 295 F.2d 573, 576 (7th Cir. 1961). In deciding motions for summary judgment, courts look beyond the pleadings and examine exhibits, affidavits and other materials; this contrasts with treatment of motions to dismiss under Fed.R.Civ.P. 12(b)(6), which are based almost entirely upon the pleadings. 10A C. Wright & A. Miller, Federal Practice and Procedure § 272 (2d ed. 1983).

It is with these standards in mind that we consider the government's alternative motion.

Count I

Count I of Lunetto's amended complaint, which is based upon 28 U.S.C. § 1346, alleges that he had an implied contract with the Naval Exchange based upon: 1) a Navy Regulation providing that employees are to be made whole financially upon appeal of adverse actions; 2) the duties delegated to him as a supervisor, in addition to those of his job classification; 3) Naval Exchange regulations governing the conditions of his employment. The government argues that Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982), precludes the existence of an implied-in-fact contract based upon the aforementioned sources.

Lunetto was employed by the Navy Exchange Service. Although not funded by Congressional appropriations, Johnson v. United States, 600 F.2d 1218, 1221 (6th Cir. 1979), military exchanges are governmental entities essential for the performance of government functions, and they are thus entitled to any immunities from suit enjoyed by the United States. Standard Oil Co. of California v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611 (1942); see also Champaign-Urbana News Agency v. J.L. Cummins, 632 F.2d 680, 692 (7th Cir. 1980) (Army and Air Force Exchange Service is entitled to immunity from Robinson-Patman Amendments to the Clayton Act). It is well established that the United States cannot be sued without its consent. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); Clark v. United States, 691 F.2d 837, 839 (7th Cir. 1982). Unless Congress has expressly consented to a suit against the United States, courts lack jurisdiction to entertain such lawsuits. United States v. Sherwood, 312 U.S. 584, 587-88, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941). We must thus consider whether we have jurisdiction over Lunetto's claim for monetary damages.

In Count I, Lunetto argues that the Tucker Act, 28 U.S.C. § 1346(a)(2), see note 1, supra, acts as a waiver of the United States' sovereign immunity. The Tucker Act is indeed an explicit waiver of sovereign immunity, Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728, 102 S.Ct. 2118, 2122, 72 L.Ed.2d 520 (1982), but it is solely a jurisdictional statute and does not create any substantive right enforceable against the United States for monetary damages. United States v. Testan, 424 U.S. at 399, 96 S.Ct. at 953. Lunetto therefore argues that Navy Regulations, supervisory duties and Naval Exchange Regulations created an implied contract between him and the United States providing him with a right to monetary damages and enabling him to invoke the Tucker Act as a jurisdictional basis for Count I. In Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982), the Supreme Court held that the Tucker Act does not convey jurisdiction over claims for monetary relief asserted pursuant to Army and Air Force Exchange Service (AAFES) personnel regulations. Moreover, an Exchange employee who holds his or her position by appointment, rather than by an employment contract, cannot argue that an express contract exists between him or her and the government for purposes of Tucker Act jurisdiction. Id. at 735-38, 102 S.Ct. 2122-24. Lunetto does not argue that he has an express contract with the United States, nor could he; the government has demonstrated that Lunetto was appointed to his position.*fn6 An appointed employee subject to unwarranted personnel action does not have a cause of action against the government absent a specific regulation or statute. United States v. Hopkins, 427 U.S. 123, 128, 96 S.Ct. 2508, 2511, 49 L.Ed.2d 361 (1976). Rather, Lunetto claims he had an implied contract with the government. But jurisdiction over Lunetto's complaint cannot be premised upon the alleged violation of regulations that do not expressly authorize monetary damages. Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728, 739, 102 S.Ct. 2118, 2125, 72 L.Ed.2d ...


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