# Petitioners Reply Brief — Army and Air Force Exchange Service v. Sheehan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1964%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1982 - **Citation:** 456 U.S. 728 ## Text Office Supreme Court, U.S. FILED No. 80-1437 JUL 80 1981 ALEXANDER L. STEVAS, - } —— Inu the Supreme Court of the United States OctTosper TERM, 1980 ARMY AND AIR FoRCE EXCHANGE SERVICE, PETITIONER Vv. ARTHUR EDWARD SHEEHAN ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT REPLY MEMORANDUM FOR THE PETITIONER LAWRENCE G, WALLACE Acting Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 TABLE OF AUTHORITIES Page Cases: Richardson v. United States, 214 Ct. Cl. 757 .... 3 Spooner v. United States, 211 Ct. Cl. 312 ....... 3 United States v. Hopkins, 427 U.S. 123... 1, 2,3,4 United States v. Testan, 424 U.S. 392 ...... 1,2,4 Statute and regulations: Tucker Act, 28 U.S.C. 1346(a)(2) «1... cece seen l AR 60-20 / AFR 147-14 (Mar. 21, 1974) ...+++> 2 AR 60-21 / AFR 147-15 (Nov. 12, 1974) ...... 2,3 In the Supreme Court of the Hnited States OCTOBER TERM 1980 No. 80-1437 ARMY AND AIR ForCE EXCHANGE SERVICE, PETITIONER Vv. ARTHUR EDWARD SHEEHAN ON PETITION FOR A WRIT OF CERTIO.”-ARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT REPLY MEMORANDUM FOR THE PETITIONER The narrow question presented by this case and its com- panion, Army and Air Force Exchange Service v. Gorman, No. 80-1435 (filed Feb. 23, 1981), is whether an appointed employee of a military exchange who has been discharged may file a civil action for monetary damages against the United States under the Tucker Act (28 U.S.C. 1346(a)(2)) predicated upon an implied-in-fact contract. As we demon- strated in our petition in this case (at 4-14), the court of appeals’ holding that Tucker Act jurisdiction may be invoked in such a situation is inconsistent with the Court's decisions in United States v. Hopkins, 427 U.S. 123 (1976), and United States v. Testan, 424 U.S. 392 (1976). 1. Respondent's contention (Br. in Opp. 9-12) that the decision in Hopkins supports the court of appeals’ decision in this case is mistaken. In Hopkins, this Court held that the Court of Claims had erred in concluding “that AAFES 2 employees could never serve by appointment.” 427 U.S. at 130 (emphasis in original). The Court noted (id. at 127-128) that Congress recognized that exchange service employees may be appointed to their positions, and that under one set of AAFES regulations (AR ¢\)-21/ AFR 147-15 (Nov. 12, 1974)) “ordinary” employees hold their positions by appoint- ment. In addition, the Court pointed to a different set of AAFES regulations (AR 60-20 / AFR 147-14 (Mar. 21, 1974)) that govern the employment of persons under service contracts to perform “direct service,” including “janitorial and window cleaning service,” and it noted that exchange service employees are specifically prohibited from receiving service contracts. 427 U.S. at 128-129. The Court in Hop- kins concluded that resolution of the question whether Hopkins was employed pursuant to a contract “depends upon an analysis of the statutes and regulations” governing the employment of AAFES personnel in light of the evi- dence to be adduced on remand concerning Hopkins’ par- ticular status. /d. at 130. Because the regulations cited by this Court in Hopkins as applying to appointed employees are the same regulations that govern respondent's employ- ment with the AAFES (see Pet. App. 7a-8a & n.8), it is clear that respondent was employed pursuant to “appointment.” Under Hopkins, therefore, the district court lacked iurisdic- tion over respondent's claims for monetary relief. 2. Respondent attempts to avoid the implications of the decisions in Hopkins and in United States v. Testan, supra, by asserting (Br. in Opp. 6, 12, 13) that, unlike the employees in those cases, he was employed by contract as the result of his participation in the AAFES’ Executive Management Program (“EMP”). This claim is without merit. In the first place, the complaint nowhere alleges that respondent was employed pursuant to a contract with the AAFES or that “his discharge constituted a breach of a contract of employment.” United States v. Hopkins, supra, 3 427 U.S. at 130.' To be sure, the complaint states that “[a]s an EMPemployee, [respondent] had certain special obliga- tions and special benefits different from other AAFES employees.” Complaint, para. 5. But the special obligations and benefits applicable to AAFES employees who are designated to EMP status are set forth in the regulations governing appointed AAFES employees (AR 60-21/ AFR 147-151, Chapter 5, Section II (Nov. 12, 1974)) and are insufficient to convert the status of a government employee from that of serving pursuant to appointment to that of serving pursuant to a contract. If the law were otherwise, the distinction between appointed and contract employees would disappear, since all government employees, regard- less of whether they are appointed or are employed by contract, incur certain obligations and receive certain benefits in connection with their employment. Indeed, the court of appeals expressly noted (Pet. App. 8a) that respondent's complaint did not refer to an employ- ment contract, and the court assumed that the pertinent AAFES regulations “label the commencement of [respond- ent’s] employment as pursuant to ‘appointment’ ” (ibid.; emphasis in original). Thus, the theory of the court below was not that the AAFES’ regulations governing EMP employees established a contractual relationship, but that the regulations concerning discharge procedures “were part of a collateral implied in-fact contract between [respond- ent] and the AAFES that the AAFES would adhere to the 'As we noted in the petition (at 9 n.8), subsequent to the decision in Hopkins, the Court of Claims has, on two occasions, dismissed suits for back pay brought by discharged exchange service employees under the Tucker Act on the ground that the complaints failed to allege facts establishing a contract relationship and that therefore the court was without subject matter jurisdiction over the action. See Spooner v. United States, 211 Ct. Cl. 312 (1976); Richardson v. United States, 2\4 Ct. Cl. 757 (1977). 4 regulations in its dealings with him” (ibid.). If the court of appeals had accepted respondent’s contention that respondent had entered into an employment contract by virtue of his status as an EMP employee, it would have been unnecessary for that court to have resorted to the fiction of an implied-in-fact contract, a fiction that, as we have dem- onstrated in the petition, is not tenable in light of Hopkins and Testan. For the foregoing reasons and for the reasons stated in the petition, the petition for a writ of certiorari should be granted, the judgment of the court of appeals should be reversed, and the case should be remanded to that court with directions to dismiss, for iack of jurisdiction, those portions of the complaint seeking monetary relief. Respectfully submitted. LAWRENCE G. WALLACE Acting Solicitor General JuLy 1981 DOJ-1981.07 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1964%3A4. Public record. Not legal advice.