168 Ct. Cl. 205 | Ct. Cl. | 1964
This case presents the recurring question of the legal status of an employee of an Armed Forces Post Exchange. Plaintiff was separated on June 13, 1960, from his position as an employee of the Air Forces Europe Exchange, Army and Air Force Exchange Service, United States Air Force. Plaintiff seeks by this action to recover from the United States back salary and appropriate allowances lost for the period following his alleged wrongful separation from employment. The basis of his action is grounded on the claim that his separation was arbitrary and capricious in that the separating authorities did not comply with the prescribed Air Force regulations in attempting to effect his separation.
The United States has moved to have the 'petition dismissed on the ground that this court has no jurisdiction to grant a judgment against the United States for alleged salary due from employment by a nonappropriated fund instrumentality of the United States. Plaintiff has countered with a motion to join the Air Forces Europe Exchange, Army and Air Force Exchange Service, as a third party defendant.
In Gradall v. United States, 161 Ct. Cl. 714, 329 F. 2d 960, 964 (1963), we pointed out that the United States is not liable under contracts of the Exchange Service with third parties “including contracts with Exchange em
We are aware that plaintiff is placed in somewhat of a difficult position in that if he seeks redress of his claim in a Federal District Court directly against the Exchange Service his claim might be dismissed. Nimro v. Davis, 204 F. 2d 734 (D.C. Cir. 1953); Edelstein v. South Post Officers Club, 118 F. Supp. 40 (E.D. Va. 1951). However, we believe that in these situations (especially where the question of the waiver of sovereign immunity is involved) it is up to Congress to remedy this apparent harsh residt, and the courts should refrain from legislating by judicial fiat.
Consequently, for the reason stated above, defendant’s motion to dismiss is granted and plaintiff’s petition is dismissed.
Section 1491 reads in pertinent part, as follows :
“The Court of Claims shall have jurisdiction to render judgment upon any claim against the united States founded either upon * * * any regulation of an executive department * *