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.
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.
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 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
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
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 ...