Respondent, while employed in a data processing position with
petitioner Army and Air Force Exchange Service (AAFES), was
selected for participation in the AAFES Executive Management
Program (EMP). A regulation provided that EMP status could be
withdrawn for conduct off the job reflecting discredit upon the
AAFES. Respondent was discharged from the AAFES after pleading
guilty to misdemeanor charges of violating state drug laws off the
base. His administrative appeal was denied. While that appeal was
pending before the Judge Advocate General of the Air Force,
respondent filed suit against the AAFES in Federal District Court,
alleging that his rights to due process and to a free and impartial
appeal pursuant to AAFES regulations were infringed, and seeking
reinstatement and damages, including backpay. The District Court
dismissed the complaint for want of subject matter jurisdiction.
The Court of Appeals reversed, concluding that the Tucker Act,
which gives the federal courts jurisdiction over certain suits
against the United States founded upon express or implied
contracts, provided a basis for jurisdiction over respondent's
claims for monetary relief. The court held that, whether or not
respondent's employment was initiated by appointment or contract,
the AAFES regulations governing separation procedures created an
implied-in-fact contract that the AAFES would adhere to those
regulations while respondent continued in AAFES employment, and
that respondent's allegation that his dismissal violated those
regulations was equivalent to an allegation of breach of an
implied-in-fact contract.
Held: The Tucker Act did not confer jurisdiction over
respondent's claim for money damages. Pp.
456 U. S.
733-741.
(a) Nothing in the record or relevant regulations indicates that
respondent was employed pursuant to an express contract. Rather,
the evidence shows that he was appointed to his positions. With
respect to employment in the data processing position, regulations
prohibited the AAFES from negotiating a contract with him, and his
selection to the EMP clearly was pursuant to an appointment. There
is no reason to remand for an evidentiary hearing on the nature of
respondent's employment status. Pp.
456 U. S.
735-738.
Page 456 U. S. 729
(b) The Court of Appeals erred in implying a contract based
solely on the AAFES personnel regulations and in premising Tucker
Act jurisdiction on those regulations, which do not specifically
authorize awards of money damages.
United States v.
Testan, 424 U. S. 392, is
controlling. Moreover, Congress' intent to prohibit Back Pay Act
claims by AAFES employees, as opposed to federal employees
generally, would be subverted if an AAFES employee could sue under
the Tucker Act whenever he asserted a violation of the AAFES
regulations governing termination. In fact, the Court of Appeals'
reasoning would extend Tucker Act jurisdiction to reach any
complaint filed by a federal employee alleging the violation of a
personnel statute or regulation. Pp.
456 U. S.
738-741.
619 F.2d 1132, reversed.
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, POWELL, REHNQUIST, STEVENS, and O'CONNOR,
JJ., joined. BURGER, C.J., concurred in the judgment.
JUSTICE BLACKMUN delivered the opinion of the Court.
The issue presented by this case is whether the federal courts
have jurisdiction over a civil action for monetary damages brought
by a former military exchange employee who contests the validity of
his discharge. The employee claims that federal jurisdiction exists
under the Tucker Act, 28 U.S.C. § 1346(a)(2) (1976 ed., Supp.
IV).
I
A
In 1962, respondent, Arthur Edward Sheehan, was selected for a
data processing position with petitioner Army and Air Force
Exchange Service (AAFES or Service). [
Footnote 1]
Page 456 U. S. 730
Five years later, respondent was designated by the AAFES
commander for participation in the Service's Executive Management
Program (EMP); this program is
"intended to fulfill the continuing requirement of AAFES for
highly qualified and dedicated executive employees who will be
readily available to meet the worldwide executive personnel
requirements of AAFES."
Army Regulation (AR) 60-21/Air Force Regulation (AFR) 147-15,
ch. 5, § II, � 5-6 (1 Aug.1979). [
Footnote 2] Employees in the program enjoy special
retention, insurance, and retirement benefits. On the other hand,
those employees are subject to certain obligations, a principal one
being that EMP personnel must accept transfer to any AAFES facility
in this country or abroad. � 6-9(a)(2). EMP status may be withdrawn
for, among other things, "conduct off the job reflecting discredit
upon AAFES." � 5-9(c). Pursuant to the regulations governing the
EMP, respondent was required to "acknowledg[e] in writing that he
underst[ood] and accept[ed] the conditions of the EMP as prescribed
by the Commander, AAFES." � 5-7(b).
In 1975, while respondent was serving as a shopping center
manager at Fort Jackson, S.C., he was arrested off the base for
possession of controlled substances. Pursuant to a plea bargain,
respondent pleaded guilty to four misdemeanor counts of violating
state drug laws. He was sentenced to 18 months' probation and a
$1,000 fine was imposed.
On March 16, 1976, respondent received advance written notice of
separation from the Service for cause. Referring specifically to
respondent's conviction, the notice stated that
Page 456 U. S. 731
the reason for the separation was
"conduct off the job which reflects discredit on the AAFES and
which is of such a nature that your retention in any capacity is
incompatible with the best interests of AAFES."
App. 11. James J. Stapleton, the AAFES General Manager for the
Piedmont Area Exchange, signed the notice, but, because of
respondent's participation in the EMP, prior approval had been
obtained from Major General C. W. Hospelhorn, Commander, AAFES.
Following an investigation, Stapleton issued a final notice of
separation for cause, effective April 19, 1976.
Id. at 17.
This notice advised respondent that he was to be dismissed "in view
of the entire weight of evidence which resulted in your plea of
guilty."
Ibid.
Respondent, in accord with authorized AAFES procedures, filed an
administrative appeal. The hearing examiner determined that the
Service had acted in compliance with applicable laws and
regulations, but concluded that respondent's conduct off the job
did not reflect discredit on the AAFES and that his retention in
some capacity was not incompatible with the interests of the
Service. The examiner therefore recommended that respondent's
appeal be granted and that he be reinstated with backpay to his
former grade but transferred to an assignment in another region.
General Hospelhorn, however, acting as the appellate authority,
disagreed, and denied respondent's appeal.
In 1978, respondent, by a letter from counsel addressed to the
new AAFES Commander, Major General Bobby W. Presley, requested
reconsideration.
Id. at 40. Respondent asserted that his
separation was contrary to AAFES rules and regulations and that he
had been denied due process of law. General Presley reopened the
case and referred it to Lieutenant General Charles E. Buckingham,
Chairman of the Board of Directors of AAFES. At General
Buckingham's request, the administrative record was reviewed by the
Judge Advocate General of the Air Force. He concluded that the
record evidence supported the charge that respondent's
Page 456 U. S. 732
conduct reflected discredit upon the AAFES and that his
retention was inconsistent with the Service's best interests. The
Judge Advocate General, however, agreed with respondent that
General Hospelhorn was disqualified from acting as the appellate
authority; he felt that it was appropriate for General Buckingham
to act in that capacity, and he recommended that respondent's
appeal be denied. General Buckingham followed that advice, and
denied respondent's appeal.
B
While the matter was pending before the Judge Advocate General,
respondent filed suit against the AAFES in the United States
District Court for the Northern District of Texas. The first count
of respondent's complaint alleged that his rights to due process
and to a free and impartial appeal pursuant to AAFES regulations
were infringed when General Hospelhorn acted as both the separation
authority and the appellate authority. In the second count,
respondent claimed that the denial of his appeal was arbitrary and
capricious, an abuse of discretion, unsupported by substantial
evidence and unwarranted by the facts, and in violation of
statutory and constitutional provisions. Respondent sought
reinstatement and damages, including backpay.
The District Court, without opinion, dismissed the complaint for
want of subject matter jurisdiction. App. to Pet. for Cert.
17a.
The United States Court of Appeals for the Fifth Circuit
reversed. It concluded that the Tucker Act, 28 U.S.C. § 1346(a)(2),
which gives the federal courts jurisdiction over certain suits
against the United States founded upon express or implied
contracts, provided a basis for jurisdiction over respondent's
claims for monetary relief. 619 F.2d 1132 (1980). Whether
respondent's employment was initiated by appointment or by
contract, the court held, the AAFES regulations providing for
separation for cause only under certain conditions and guaranteeing
an administrative appeal "manifest[ed]
Page 456 U. S. 733
the understanding of the parties concerning discharge procedures
while Sheehan
continued in AAFES employment."
Id.
at 1138 (emphasis in original). Accordingly, the court considered
those regulations to be "part of a collateral implied-in-fact
contract between Sheehan and the AAFES that the AAFES would adhere
to the regulations in its dealings with him."
Ibid. In the
court's view, the understanding of the parties was reinforced by
the well established legal principle that a federal agency must
comply with its own regulations. The court concluded that
respondent's allegation that his dismissal violated applicable
regulations was "equivalent to an allegation of breach of an
implied-in-fact contract,"
ibid., and that the District
Court therefore had erred in ruling that it had no jurisdiction to
award respondent monetary relief. [
Footnote 3]
Because this ruling appeared to be in conflict with our
precedents, we granted certiorari. 454 U.S. 813 (1981).
II
The AAFES, like other military exchanges, is an
"'ar[m] of the government deemed by it essential for the
performance of governmental functions . . . and partake[s] of
whatever immunities it may have under the constitution and
federal
Page 456 U. S. 734
statutes.'"
United States v. Mississippi Tax Comm'n, 421 U.
S. 599,
421 U. S. 606
(1975), quoting, with approval, language of the District Court in
the same case,
378 F.
Supp. 558, 562-563 (SD Miss.1974). As a result, the federal
courts may entertain actions against the Service only if Congress
has consented to suit; "a waiver of the traditional sovereign
immunity
cannot be implied but must be unequivocally
expressed.'" United States v. Testan, 424 U.
S. 392, 424 U. S. 399
(1976), quoting United States v. King, 395 U. S.
1, 395 U. S. 4
(1969).
The Tucker Act effects one such explicit waiver when it provides
in pertinent part:
"The district courts shall have original jurisdiction,
concurrent with the Court of Claims, of:"
"
* * * *"
". . . Any other civil action or claim against the United
States, not exceeding $10,000 in amount, founded either upon the
Constitution, or any Act of Congress, or any regulation of an
executive department,
or upon any express or implied contract
with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort. . . . For the purpose of
this paragraph, an express or implied contract with the Army and
Air Force Exchange Service . . . shall be considered an express or
implied contract with the United States. [
Footnote 4]"
28 U.S.C. § 1346(a)(2) (1976 ed., Supp. IV) (emphasis added).
[
Footnote 5]
Page 456 U. S. 735
Respondent does not assert Tucker Act jurisdiction on the basis
of the Constitution or a specific statute or regulation. He claims
only that the Tucker Act affords him a remedy because of an
"express or implied contract with the United States" agreed to by
the parties. Specifically, respondent urges that he became an AAFES
employee, or at least entered the EMP, by virtue of an employment
contract, not by appointment, and that the AAFES regulations
governing dismissal of employees created an implied contract. We
must reject both contentions.
A
In determining whether respondent's employment was the result of
appointment or contract, we look to
United States v.
Hopkins, 427 U. S. 123
(1976), a wrongful discharge action brought by an AAFES employee
who alleged that his separation from the Service constituted a
breach of an employment contract. The Court in its per curiam
opinion in
Hopkins noted that Tucker Act jurisdiction may
be premised on an employment contract, as well as on one for goods
or other services,
id. at
427 U. S. 126,
and that the AAFES regulations authorize the Service to enter into
service contracts.
Id. at
427 U. S.
127-128. But the Court also observed that many AAFES
employees are appointed to their positions, and it remanded the
case for consideration of the question whether the plaintiff had
been employed by contract or by appointment, a determination
dependent upon
"an analysis of the statutes and regulations previously
described in light of whatever evidence is adduced on remand as to
plaintiff's particular status in this case."
Id. at
427 U. S.
130.
Although respondent alleges that he was employed, both initially
and upon entering the EMP, by express employment
Page 456 U. S. 736
contracts, he points to nothing in the record or in the relevant
AAFES regulations that substantiates that claim. In fact, his
complaint supports the contrary view. The complaint observes that
respondent was first "employed" by the AAFES in 1962, App. 3; the
regulations pertaining to "employees" refer to Service personnel as
"Federal employees of an instrumentality of the United States" who
are appointed to their positions. AR 60-21/AFR 147-15, ch. 1, § I,
� 6(a); ch. 2, §I, �� 2-2, 2-3 (1 Aug.1979). Moreover, if, as
respondent alleges, he was "employed" in a data processing
position, AAFES regulations prohibit the Service from negotiating a
contract with him.
See AR 60-20/AFR 147-14, ch. 3, § III,
� 3-26(d) (15 Nov.1978).
Respondent's selection to the EMP plainly was pursuant to
appointment. The regulations governing the EMP appear in the
provision entitled "Exchange Service Personnel Policies," AR
60-21/AFR 147-15, ch. 5, § II, rather than in the regulation
providing for service contracts, AR 60-20/AFR 147-14, ch. 3, §§ II,
III. [
Footnote 6] And, in
language that connotes appointment, rather than contract, the EMP
regulations refer to one's "nomination, selection, and designation
to EMP status," AR 60-21/AFR 147-15, ch. 5, § II, � 5-8. [
Footnote 7] Furthermore, respondent
complains that he was separated from the
Page 456 U. S. 737
EMP in violation of discharge procedures described in the
regulation applicable to appointed employees, not to those who have
contracted with the AAFES to provide services. App. 4-5, 7'
see AR 60-21/AFR 147-15, ch. 3.
Despite these clear indications that respondent was appointed to
his position, he maintains, citing
United States v. Hopkins,
supra, that he is entitled to an evidentiary hearing aimed at
ascertaining the nature of his employment status. In
Hopkins, however, the plaintiff's complaint alleged that
he had been employed pursuant to contract. The Court of Claims did
not examine this allegation, because it erroneously assumed that
AAFES employees could never be appointed. This Court held that the
plaintiff's allegation was sufficient to withstand the Government's
motion to dismiss for want of jurisdiction, and remanded the case
because
"the question of whether plaintiff was employed by virtue of a
contract or by appointment is not susceptible of determination at
this time."
427 U.S. at
427 U. S. 130.
Resolution of the question, the Court noted, depended upon an
analysis of the applicable statutes and regulations "in light of
whatever evidence is adduced on remand as to plaintiff's particular
status in this case."
Ibid. [
Footnote 8]
Respondent's complaint, in contrast, does not claim that he was
employed pursuant to a contract. In fact, it supports the
Government's view that he was appointed. Even after the AAFES moved
in the District Court to dismiss for want of jurisdiction on the
ground that respondent had been "an appointed (non-contract)
employee," Memorandum of Points and Authorities in Support of
Defendant's Motion to Dismiss or in the Alternative for Summary
Judgment 8, respondent did not seek to amend his complaint, and did
not allege any facts indicating the existence of an employment
contract.
See Memorandum of Authorities in Opposition to
Defendants' (
sic) Motion to Dismiss or, in the
Alternative, for Summary
Page 456 U. S. 738
Judgment 5-6;
see also id. at 1-3 (referring to
respondent's status as an "employee" and to violations of
regulations governing AAFES employees). [
Footnote 9] Moreover, as discussed above, all the
evidence in the record is to the effect that respondent was
appointed to his positions with the AAFES. Under these
circumstances, we conclude that a remand on this question would
serve no purpose, and that respondent will not now be able to
adduce evidence, which he has heretofore declined to present, that
he was employed -- either initially or upon entering the EMP --
pursuant to an express employment contract.
B
The Court of Appeals' decision rests on a different theory --
that, whether or not respondent was initially employed by virtue of
a contract or by appointment, the AAFES regulations governing
separation procedures created an implied-in-fact contract that the
Service would adhere to those regulations while respondent
continued in AAFES employment. [
Footnote 10] This approach, however, is foreclosed by our
prior decisions.
In
United States v. Testan, 424 U.
S. 392 (1976), the Court concluded, without dissent,
that the Tucker Act did not confer jurisdiction over a complaint
filed by civil service employees who claimed that they were
entitled to reclassification at a higher grade. The Act, the Court
observed, "is itself only a jurisdictional statute; it does not
create any substantive right enforceable against the United States
for money damages."
Page 456 U. S. 739
Id. at
424 U. S. 398.
Rather, a plaintiff's
"asserted entitlement to money damages depends upon whether any
federal statute 'can fairly be interpreted as mandating
compensation by the Federal Government for the damage
sustained.'"
Id. at
424 U. S. 400,
quoting
Eastport S.S. Corp. v. United States, 178 Ct.Cl.
599, 607, 372 F.2d 1002, 1009 (1967). The Court explicitly rejected
the argument that
"the violation of any statute or regulation relating to federal
employment automatically creates a cause of action against the
United States for money damages."
424 U.S. at
424 U. S. 401;
see also United States v. Hopkins, 427 U.S. at
427 U. S.
130.
As
Testan makes clear, jurisdiction over respondent's
complaint cannot be premised on the asserted violation of
regulations that do not specifically authorize awards of money
damages. [
Footnote 11]
Respondent cannot escape the force of
Testan by relying on
the Court's observation that the plaintiffs in that case did not
"rest their claims upon a contract," 424 U.S. at
424 U. S. 400,
and distinguishing this case on the ground that the regulations
effected an implied contract. To accept this reasoning would be to
undermine the Court's ruling in
Testan that the Tucker Act
provides a remedy only where damages
Page 456 U. S. 740
claims against the United States have been authorized
explicitly. Admittedly, the
Testan plaintiffs did not
assert the existence of an employment contract, but neither did
respondent until very late in the litigation. And if employment
statutes and regulations create an implied-in-fact contract, surely
the Court would have so noted in
Testan instead of
directing that the complaint be dismissed.
See id. at
424 U. S. 408.
Moreover, the plaintiff in
Hopkins did claim that he had
been employed pursuant to a contract; the Court's remand for
consideration of the plaintiff's status as an appointed or contract
employee, despite a claim that his discharge contravened applicable
regulations, clearly suggests that employment regulations do not
automatically give rise to an implied-in-fact contract. [
Footnote 12]
In addition to mandating different results in
Testan
and
Hopkins, the Court of Appeals' approach would
"rende[r] superfluous"
"many of the federal statutes -- such as the Back Pay Act --
that expressly provide money damages as a remedy against the United
States in carefully limited circumstances."
United States v. Testan, 424 U.S. at
424 U. S. 404.
The Back Pay Act, which permits an employee to recover lost wages
due to "an unjustified or unwarranted personnel action which has
resulted in the withdrawal or reduction of all or part" of the
compensation to which he was otherwise entitled, 5 U.S.C. §
5596(b)(1) (1976 ed., Supp. IV), expressly denies that cause of
action to AAFES personnel.
See 5 U.S.C. § 2105(c)(1) (1976
ed., Supp. IV). Congress' intent to prohibit a backpay claim by a
Service employee would obviously be subverted if the employee could
sue under the
Page 456 U. S. 741
Tucker Act whenever he asserted a violation of the Service's
regulations governing termination. And the impact of the Court of
Appeals' decision would not be limited to such circumstances: as
counsel for respondent appeared to concede at oral argument, the
Court of Appeals' reasoning would extend Tucker Act jurisdiction to
reach any complaint filed by a federal employee alleging the
violation of a personnel statute or regulation. Tr. of Oral Arg.
20-21.
We therefore conclude that
Testan is controlling, and
we hold that the Court of Appeals erred in implying a contract
based solely on the existence of AAFES personnel regulations and in
premising Tucker Act jurisdiction on those regulations, which do
not explicitly authorize damages awards. Because the court's
judgment may not be sustained on the ground that respondent was
hired pursuant to an express employment contract, we find that the
Tucker Act did not confer jurisdiction over respondent's claims for
monetary relief.
The judgment of the Court of Appeals is therefore reversed.
It is so ordered.
THE CHIEF JUSTICE concurs in the judgment.
[
Footnote 1]
AAFES is a nonappropriated fund instrumentality of the United
States, that is, one that does not receive funds by congressional
appropriation.
See 10 U.S.C. §§ 4779(c) and 9779(c). AAFES
is under the control of the Secretaries of the Army and Air Force
and, like other military post exchanges, is intended "to provide
convenient and reliable sources where soldiers can obtain their
ordinary needs at the lowest possible prices."
Standard Oil Co.
v. Johnson, 316 U. S. 481,
316 U. S.
484-485 (1942).
[
Footnote 2]
The regulations cited are those currently in effect. They differ
in no material respect from the regulations that were outstanding
and applicable while respondent was employed by the AAFES.
[
Footnote 3]
Reasoning that § 1346(a)(2) does not confer federal jurisdiction
to award nonmonetary relief, the Court of Appeals looked to the
general federal question jurisdictional provision, 28 U.S.C. §
1331(a), to support its finding of jurisdiction over respondent's
request for reinstatement. Although the court concluded that §
1331(a) does not constitute a waiver of sovereign immunity, it
interpreted the 1976 amendment to § 10 of the Administrative
Procedure Act, 5 U.S.C. 702, as effecting a waiver for actions
against federal agencies, where the agency conduct is otherwise
subject to judicial review. 619 F.2d at 1138-1140. Given its
determination that the District Court could provide respondent both
monetary and nonmonetary relief under alternative statutes, the
Court of Appeals held, finally, that the District Court did not
have jurisdiction over respondent's complaint pursuant to the
mandamus statute, 28 U.S.C. 1361. 619 F.2d at 1140-1141. Neither
side seeks review of those rulings here.
[
Footnote 4]
The last sentence of § 1346(a)(2) was added in 1970 by Pub.L.
91-350, 84 Stat. 449, following this Court's decision some years
before in
Standard Oil Co. v. Johnson, 316 U.
S. 481 (1942). Relying on the Court's observation in
that case that the "Government assumes none of the financial
obligations" of military post exchanges,
id. at
316 U. S. 485,
the Court of Claims, in a series of decisions, had held that it
could not entertain contract claims against nonappropriated fund
instrumentalities.
See United States v. Hopkins,
427 U. S. 123,
427 U. S. 125
(1976). In 1970, Congress sought to close this "loophole" by
expressly affording contractors a Tucker Act remedy against such
instrumentalities.
See id. at
427 U. S. 126;
S.Rep. No. 91-268, p. 2 (1969); H.R.Rep. No. 91-933, p. 2
(1970).
[
Footnote 5]
Section 1346(a)(2) gives the district courts concurrent
jurisdiction with the Court of Claims over all civil actions or
claims seeking damages of $10,000 or less. The Court of Claims has
sole jurisdiction under the Tucker Act, however, for claims greater
than $10,000.
See 28 U.S.C. 1491 (1976 ed., Supp. IV).
Both jurisdictional provisions are otherwise identical.
See
Richardson v. Morris, 409 U. S. 464,
409 U. S. 466
(1973);
United States v. Sherwood, 312 U.
S. 584,
312 U. S.
590-591 (1941).
[
Footnote 6]
The AAFES regulations define "service contract" as follows:
"A contract whereby a contractor performs a service for AAFES
off a military installation, such as laundry, drycleaning, photo
processing, and repair service. This type contract may also include
procurement of direct services such as janitorial and window
cleaning service."
AR 60-20/AFR 147-14, App. A, � A-8(e) (15 Nov.1978).
[
Footnote 7]
Respondent points to the portion of the EMP regulations
providing that an EMP employee must have "acknowledged in writing
that he understands and accepts the conditions of the EMP as
prescribed by the Commander, AAFES." AR 60-21/AFR 147-15, ch. 5, §
II, � 5-7(b). An employee's acknowledgment and acceptance of the
conditions of his employment, however, hardly demonstrate that he
is employed pursuant to a contract; surely, an employer could
require a nominee to acknowledge and accept the conditions of his
appointment.
[
Footnote 8]
We are advised that Hopkins' suit was settled on the remand, and
that no further inquiry was made into his employment status.
See Brief for Petitioner 16, n. 9; Brief for Respondent
14; Tr. of Oral Arg. 28.
[
Footnote 9]
Respondent did seek to amend his complaint, however, following
the Court of Appeals' decision that the AAFES discharge regulations
created an implied-in-fact contract between the parties. The
amended complaint alleges that a contract was executed when
respondent signed an acknowledgment of the conditions of the EMP,
includes a breach of contract count, and refers repeatedly to the
"employment agreement." First Amended Complaint 2, 6-7.
[
Footnote 10]
Claims grounded on implied-in-fact contracts may be brought
under the Tucker Act, but the Act does not confer jurisdiction with
respect to contracts implied in law.
See Hatzlachh Supply Co.
v. United States, 444 U. S. 460,
444 U. S. 465,
n. 5 (1980).
[
Footnote 11]
Like
Testan, this case does not involve a suit "for
money improperly exacted or retained" or a claim based on a
regulation that promises money. 424 U.S. at
424 U. S. 401,
424 U. S. 402.
This case is therefore distinguishable from those cited by
respondent where contracts were inferred from regulations promising
payment.
See Griffin v. United States, 215 Ct.Cl. 710,
714-715 (1978);
New York Airways, Inc. v. United States,
177 Ct.Cl. 800, 816-817, 369 F.2d 743, 751-752 (1966);
Radium
Mines, Inc. v. United States, 139 Ct.Cl. 144, 147-148, 153 F.
Supp. 403, 405-406 (1957);
Aycock-Lindsey Corp. v. United
States, 171 F.2d 518, 521 (CA5 1948);
Augusta Aviation,
Inc. v. United States, 500 F.
Supp. 785, 786-787 (SD Ga.1980),
rev'd, 671 F.2d 445
(CA11 1982). Because respondent has not demonstrated that the
parties entered into an express contract, this case is also
different from those where regulations were considered an implied
part of an express contract.
See Bodek v. Department of
Treasury, Bureau of Public Debt, 532 F.2d 277, 279, n. 7
(CA2),
cert. denied, 429 U.S. 849 (1976);
Wolak v.
United States, 366 F.
Supp. 1106, 1110 (Conn.1973);
Spicer v. United
States, 217 F. Supp.
44, 50 (Kan.1963),
aff'd, 332 F.2d 750 (CA10
1964).
[
Footnote 12]
The Court' observation in
Testan that the case was "not
one concerning a wrongful discharge or a wrongful suspension," 424
U.S. at
424 U. S. 402,
does not indicate, as respondent urges, that any termination or
suspension suit may be brought under the Tucker Act. In
Hopkins, the Court relied on
Testan in disposing,
summarily and adversely, of the contention that "plaintiff's
discharge in violation of executive regulations constituted a claim
enforceable under the Tucker Act." 427 U.S. at
427 U. S.
130.