Hopkins v. United States

SkeltoN, Judge,

dissenting:

I respectfully dissent.This court does not have jurisdiction to bear tbe merits of this case. The majority would have us take jurisdiction over a type of claim in which the government is immune from suit as sovereign and in which a clear reading of the case law and legislative history of the 1970 amendment to the Tucker Act shows that Congress has not explicitly waived immunity by giving consent to be sued in this kind of case.

The jurisdiction of this court is limited by the Tucker Act to claims “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. * * *” 28 U.S.C. §1491 (1970). Although this statute might have been interpreted to constitute a waiver of all non-tort money claims, we have limited our jurisdiction to claims in which there exists constitutional or statutory authority mandating Federal compensation either directly or indirectly. Eastport Steamship Corp. v. United States, 178 Ct. Cl. 599, 372 F. 2d 1002 (1967). With this limitation in mind, we have historically denied jurisdiction to money claims against nonappropriated fund instrumentalities since by their very nature their financial obligations are not obligations of the United States; until the most recent Tucker Act amendment there was no statutory or constitutional authority or mandate for Congress to appropriate funds to pay judgments obtained against nonappropriated fund instrumentalities. See Dugan v. United States, 84 Ct. Cl 458 (1899); Williams v. United States, 44 Ct. Cl. 175 (1909); Kyle v. United States, 46 Ct. Cl 197 (1911); Woog v. United States, 48 Ct. Cl. 80 (1913); Kenny v. United States, 62 Ct. Cl. 328 (1926); Sullivan v. United States, 92 Ct. Cl. 154 (1940); Borden v. United States, 126 Ct. Cl. 902, 116 F. Supp. 873 (1953); Pulaski Cab Co. v. United States, 141 Ct. Cl. 160, 157 F. Supp. 955 (1958); Cockrill v. United States, 155 Ct. Cl. 181, 292 F. 2d. 288 (1961); Gradall v. United States, 161 Ct. Cl 714, 329 F. 2d 960 (1963); Keetz v. United States, 168 Ct. Cl. 205 (1964); Kyer v. United States, 177 Ct. *315Cl. 747, 389 F. 2d 714 (1986), cert. denied, 387 U.S. 929 (1967).

The Supreme Court confirmed, the financial independence of unappropriated fund activities when, in Standard Oil Co. v. Johnson, 316 U.S. 481 (1942), it declared the military Exchange Services were federal instrumentalities but limited the implications of this conclusion by stating: “The Government assumes none of the financial obligations of the exchange.” 316 U.S. at 485. Unfortunately, the maintaining of sovereign immunity over claims against the Exchange Services created the anomalous situation in which an individual under contract with the Federal Government could bring suit in this court to remedy contractual claims while a similar contractor providing the same services with an Exchange Service such as the Army and Air Force Exchange Service (AAFES), could not. We have often noted the unfairness of this situation, stating in one case:

We are mindful of the fact that the result reached spells an unduly harsh outcome. Plaintiff has searched in vain for a forum in which the merits of his claim might be aired. We add, though perhaps of little comfort, that the lack of jurisdiction which plaintiff has faced at every turn is a matter which sorely needs congressional correction. [Kyer v. United States, 177 Ct. Cl. 747, 754, 369 F. 2d 714, 719 (1966), cert. denied, 387 U.S. 929 (1967).]

In 1970, the Tucker Act was amended by the Act of July 23, 1970, Pub. L. No. 91-350, 84 Stat. 449, amending, 28 U.S.C. § 1491 (1964), [hereinafter P.L. 91-350] to close this apparent “loophole” by adding the following sentence:

* * * 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. [Emphasis supplied.] [28 U.S.C. § 1491 (1970).]

The majority would have us interpret this amendment so as to provide a waiver of sovereign immunity for all claims against the Exchange Services whether they are based on contract, regulation, or Act of Congress. I believe this is an unwarranted interpretation, and if permitted to stand, it would extend our jurisdiction to cover a vast panoply *316of claims over which Congress never intended to consent to be sued. The language of the amendment is clear on its face, and, when combined with the prior case law and the legislative history, it is apparent that Congress only intended to extend our jurisdiction to cover contractual claims of third party independent contractors against the Exchange Services and not to AAFES employees’ grievances.

In introducing this amendment to the Senate, Senator Tydings described its purpose as follows:

Mr. President, nonappropriated fund activities are at present an anomaly of the law. When states have attempted to tax or regulate nonappropriated fund activities, these organizations have successfully argued that they are immune from taxation and regulation as in-strumentalities of the United States. When sued in foreign courts, nonappropriated fund activities have successfully argued that as instrumentalities of the United States they are not liable to contract suit, except in the courts of the United States. Our own courts have held, and the Justice Department has concurred in such holdings, that employees of nonappropriated fund activities, engaged in the performance of their duties, are employees of the United States, so that the United States is liable, under the Federal Tort Claims Act, for their negligence within the scope of their employment. The United States has, in fact, sued in its own name to enforce contracts entered into by nonappropriated fund activities.
Yet, today, although nonappropriated fund activities are continually identified with their parent department or agency of the United States, contractors with such activities home foumd the court room door barred when they allege a breach of a contract by such an activity. State courts have disclaimed jurisdiction to entertain the claims, holding that the federal courts are the appropriate forum. Both the federal district courts and the U.S. Court of Claims afford no relief because of the alleged loophole in the Tucker Act. Kepeatedly, these courts have held that the Tucker Act’s waiver of the sovereign immunity of the United States to contract suits is not broad enough to permit the Court of Claims or the U.S. District Court to entertain suits against non-appropriated fund activities. [115 Cong. Kec,, Part 3, p.3162 (1969).] [Emphasissupplied.]

*317In reporting favorably on 6. 980, the Senate bill to amend the Tucker Act, the report of the Senate Judiciary Committee stated:

S. 980 will fill a gap in the Tucker Act’s waiver of immunity of the United States to claims 'based upon contracts with departments or agencies of the Government. The United States is liable in the Court of Claims of the United States and, in appropriate cases, in the district courts of the United States, to suits “upon any express or implied contract with the United States * * *.” 28 U.S.C. 1491; 28 U.S.C. 1346(a)(2). The courts have repeatedly held, however, that the Federal Government’s liability to suit under these sections only exists with respect to contract obligations to be paid out of appropriated funds. See, e.g., Kyer v. United States, 369 F. 2d 714 (Ct. Claims 1966); Pulaski Cab Co. v. United States, 157 F. Supp. 955 (Ct. Claims 1968); Keetz v. United States, 168 Ct. Claims 205 (1964); Borden v. United States, 116 F. Supp. 873 (Ct. Claims 1953). [S. Rep. No. 268, 91st. Cong., 1st. Sess. 2 (1969)] [Emphasis supplied.]

The House Judiciary Committee also favorably reported the bill and, describing its purpose as closing a “loophole” in the Tucker Act dealing with “claims based upon contracts with departments or agencies of the Government.” [2 U.S. Code Cong. & Admin. News 3478 (1970).]

The intention of Congress to close a loophole with respect to contractual claims of third party independent contractors is further substantiated by the floor debate prior to the bill’s passage. Speaking for the amendment, Representative Rogers of Colorado stated:

Under the Tucker Act, the United States has waived its sovereign immunity with respect to contract claims. However, the construction given to the Tucker Act by the courts has left a loophole, which creates inequities for some claimants. This loophole exists with respect to contracts entered i/nto by those Federal instrumentalities which operate as nonappropriated fund activities. In short, under present construction of the Tucker Act, a plaintiff with a legitimate claim against a nonappro-priated fund activity is not entitled to any judicial relief. S. 980 as reported by the Committee on the Judiciary is intended to close this loophole with respect to contracts *318entered into by post exchange types of operations conducted within the Department of Defense and the National Aeronautics and Space Administration. [116 Cong. Rec., Part 8, 10,604-06 (1970)] [Emphasis supplied.]

Similarly, Representative Fish in commenting on the types of problems that necessitated an amendment stated:

S. 980, as it passed the other body, would close this loophole in the Tucker Act by permitting the aggrieved party to sue the U.S. Government where the gravamen of the complaint arises from a contract with a nonappro-priated fund activity. Such activity would then have to reimburse the United States for any judgment paid. [Id. at 10, 605-06] [Emphasis supplied.]

The legislative history speaks clearly and unambiguously. Public Law 91-350 was intended by Congress to waive sovereign immunity solely over claims of third party independent contractors arising as a result of contracts with nonap-propriated fund instrumentalities such as the AAFES. The legislative history is silent concerning claims against the AAFES by employees. No reference is made to the lack of a Court of Claims forum for the resolution of pay claims or other employment grievances for AAFES employees. It seems clear to me that Congress did not intend to provide additional remedies for nonappropriated fund instrumentality employees when it passed Pub. L. 91-350; its only aim was to correct an anomalous situation with respect to those third party independent contractors having explicit contracts with the Exchange Services.

Moreover, it is highly relevant to note that the AAFES, alone, had almost 80,000 civilian employees in 1970.1 Certainly, if Congress planned to give such a vast number of individuals, together with thousands more in the four other Exchange Services, a new forum to present their employment grievances or pay claims, some statement would have been made to that effect by the two Judiciary Committee Reports or during the debates. The absence of such com-*319merit is, in my judgment, significant since sovereign immunity cannot be waived by implication, United States v. King, 395 U.S. 1, 4 (1969), or implied through the construction of an ambiguous statute, General Mutual Ins. Co. v. United States, 119 F. Supp. 352 (N.D.N.Y. 1953) as the majority would have us do. Bather, it must be unequivocally and unambiguously expressed. As the Supreme Court stated:

* * * We think that this approach runs counter to the settled propositions that the Court of Claims’ jurisdiction to grant relief depends wholly upon the extent to which the United States has waived its sovereign immunity to suit and that such a waiver cannot be implied but must be u/nequwocalhj expressed. United States v. Sherwood, 312 U.S. 584. * * * [Emphasis supplied.] [ United States v. King at 4.]

The majority points to four cases cited by the legislative history, Kyer v. United States, supra; Pulaski Cab Co. v. United States, supra; Keetz v. United States, supra; and Borden v. United States, supra, as evidence of a concern Congress had for employment cases. I do not believe that these cases are illustrative of the point the majority is seeking to make. Each of these cases, with the exception of Keetz, supra, deals with independent suppliers of goods and services under explicit contract with the Exchange Services, not employees in any traditional sense, and was probably cited in the history merely to show that the doctrine of sovereign immunity stood as a bar against such contractual claims. The last case, Keetz, supra, although not involving a contract, is, as I will discuss, based on an incorrect reading of Court of Claims precedent.

Since, as the legislative history seems to indicate, Congress intended the amendment to serve as a waiver of sovereign immunity only over contract claims of independent third parties against the AAFES or other Exchange Services, we acquire jurisdiction in this case only if the plaintiff had such a contractual relationship with the AAFES. In reviewing the statutory scheme created by Congress and the case law that has developed since the Supreme Court decided in Standard Oil Co., supra, that the AAFES is a federal *320instrumentality, I am drawn to the conclusion that if an employee of an Exchange Service such as the plaintiff is a federal employee, he is such employee for limited purposes only. He is not an employee of the U.8. Army or Air Force, but only of the Exchange Service. His salary is paid out of nonappropriated funds over which this court has no jurisdiction. The following cases hold that such Exchange Service employees are federal employees in various situations: Rizzuto v. United States, 298 F. 2d 748, 749-50 (10th Cir. 1961); United States v. Holcombe, 277 F. 2d 143 (4th Cir. 1960), aff'g 176 F. Supp. 297, 299-300 (E.D. Va. 1959); United States v. Forfari, 268 F. 2d 29, 31, 35 (9th Cir. 1959), cert. denied, 361 U.S. 902; Daniels v. Chanute Air Force Base Exchange, 127 F. Supp. 920, 923-24 (E.D. Ill. 1955); Brethauer v. United States, 333 F. 2d 302, 304-06 (8th Cir. 1964); and Aubrey v. United States, 254 F. 2d 768 (D.C. Cir. 1958). None of these cases involved claims for wrongful discharge or back pay, but dealt with claims of tort, workmen’s compensation, criminal law, etc.

In several contexts Congress has explicitly included Exchange Service employees within the rights and benefits extended to other federal employees. Thus, they are eligible for unemployment compensation benefits under 5 U.S.C. § 8501 (1970) as well as coverage under 5 U.S.C. § 7902 (1970), concerning federal safety programs. Similarly, AAFES employees are governed by the dual compensation provision of 5 U.S.C. § 5531 (1970). Where AAFES employees are not to be considered federal employees, Congress has directly and unambiguously so provided. For example, in 5 U.S.C. § 2105 (c) it is declared:

§ 2105. Employee.
$ $ ‡ ‡
(c) An employee paid from nonappropriated funds of the Army and Air Force Exchange Service, [AAFES] * * * is deemed not an employee [of the United States] for the purpose of—
(1) laws administered by the Civil Service Commission; or
(2) subchapter I of chapter -81 [dealing with compensation for work injuries] and section 7902 of this title [federal safety programs].

*321The applicable Army/Air Force Regulation is to the same effect as follows:

1-4 Civilian Personnel, a. AAFES personnel are employees of an instrumentality of the United States which is an integral part of the Department of Defense. Since they are compensated out of nonappropriated funds, they are distinguished from other civilian employees of the Armed Services who are compensated from appropriated funds. For example, they are not held or considered as employees of the United States for certain purposes, such as the civil service laws and the Federal Employees Compensation Act (5 U.S.C. 2105). [AR 60-20/AFR 147-14, § 1-4 (Oct. 1968)]

Although excluding AAFES employees from the category of federal employees for the purposes of the Civil Service laws, Congress in § 2105 has clearly not precluded these employees from being federal employees for other purposes.

Similarly, the executive branch of government in certain circumstances groups AAFES employees with federal employees. For example, section 2(h) of Executive Order 11491, setting up a program of labor management relations in the federal service, states that employees of nonappropriated fund instrumentalities are to be included.

Case law similarly points to the conclusion that employees of an Exchange Service are federal employees for limited purposes only. In a long line of cases dealing with the Federal Tort Claims Act, 28 U.S.C. § 1346 (1970), the federal courts have considered those employed by the Exchange Service to be federal employees as far as tort claims are concerned. See e.g., Rizzuto v. United States, supra; United States v. Holcombe, supra; United States v. Forfari, supra; and Aubrey v. United States, supra.

In this court the status of an AAFES employee has been dealt with very infrequently. The latest case considering this question was Keetz v. United States, 168 Ct. Cl. 205 (1964). In Keetz, decided before the passage of Pub. L. 91-350, an employee of the AAFES sued here for back salary claiming that the bar in this court against contractual claims with the Exchange Services did not apply since he was a federal employee and not working fursuant to contract. Instead, the plaintiff alleged that the gravamen of his complaint was a *322refusal by the AAFES to comply with regulations due federal employees. This court denied jurisdiction as it had in all the preceding suits involving the AAEES, holding that in “other contexts” the court had held that employees of the AAEES were not federal employees and citing as support Gradall v. United States, 161 Ct. Cl. 714, 329 F. 2d 960 (1963) and Brummitt v. United States, 165 Ct. Cl. 78, 329 F. 2d 966 (1964). A close reading of those two cases will show that the court erred in relying on them in the Keetz case.

In Gradall, supra, the issue was whether an AAFES employee was a federal employee within the definition of the Dual Compensation Act. The court’s holding that he was not a federal employee was merely dicta inasmuch as the written employment contract which defined the plaintiff’s relationship stated in part that “although EUCQM exchange system is an instrumentality of the U.S. Government * * * you are not considered to "be a federal employee.” [161 Ct. Cl. at 718, 329 F. 2d at 963] [Emphasis supplied.] A similar holding in Brummitt, supra is likewise only dicta, since this court found that the open mess which employed the plaintiff was at the time in issue neither a federal instrumentality nor a nonappropriated fund activity, but rather a private organization, and, therefore, a fortiori, the plaintiff could not be a federal employee. Because of its reliance on the barest form of dicta and its lack of independent analysis, the Keetz case in no way prevents the conclusion that the plaintiff is a federal employee, but only for limited purposes not germane here.

Article 2, Section 2 of the Constitution establishes that the only way one can become a federal officer is through appointment by the President or by the “head of a department” or by one to whom the power of appointment has been delegated. In Crenshaw v. United States, 134 U.S. 99 (1890), the Supreme Court held that even after appointment, a public officer had no vested or contract right in his office. The Court said:

The primary question in this case, * * * is, whether an officer appointed for a definite time or during good behavior had any vested interest or contract right in his office of which Congress could not deprive him? The question is not novel. There seems to be but little dif*323ficulty in deciding that there was no such interest or right. * * * [Id. at 104.]

The Court further stated:

* * * We have already shown, that the appointment to and the tenure of an office created for the public use, and the regulation of the salary affixed to such an office, do not fall within the meaning of the section of the Constitution relied on by the plaintiffs in error; do not come within the import of the term contracts, or, in other words, the vested, private personal rights thereby intended to be protected. * * * [Emphasis in original.] [Id. at 105.]

Again, in Taylor v. Beckham, 178 U.S. 548 (1900), the Supreme Court repeated its holding of Grenshcm, supra, and stated: “In short, generally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right.” [Emphasis supplied.] [Footnote omitted.] [Id. at 577.]

In Urbina v. United States, 192 Ct. Cl. 875, 881, 428 F. 2d 1280, 1284 (1970), we held:

* * * If, * * * plaintiff’s reliance is on some theory of contract law, his position would not be improved since it is plain that public employment does not, in a situation such as is here involved, give rise to a contractual relationship in the conventional sense. Borak v. United States, 110 Ct. Cl. 236, 78 F. Supp. 123, cert denied, 335 U.S. 821 (1948). Cf. Lawrenson v. United States, 139 Ct. Cl. 370, 153 F. Supp. 790 (1957) * * *.

See also, United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868).

In my dissent in Testan v. United States, 205 Ct. Cl. 330, 499 F. 2d 690 (1974), cert. granted, 420 U.S. 923 (1975), case in which the majority found that plaintiff had an interest in a job position to which he had not been appointed, I summarized the law saying:

Article 2, Section 2, of the Constitution provides that officers of the United States shall be appointed by the President or the heads of the departments, as Congress may direct. There is no other way a person can obtain a government job. See United States v. Smith, 124 U.S. 525 (1888); United States v. Mouat, 124 U.S. 303 (1888); and Thomason v. United States, 85 F. Supp. 742 (N.D. *324Cal. 1948), aff'd, 184 F. 2d 105 (9th. Cir. 1950). Government employment is not a contract, is not property and the due process clause of the Constitution does not apply. Bailey v. Richardson, supra [182 F. 2d 46 (D.C. Cir. 1950), aff'd, 341 U.S. 918 (1951)]; Crenshaw v. United States, 134 U.S. 99 (1890); Taylor v. Beckham, 178 U.S. 548 (1900); and Jenson v. Olson, supra [353 F. 2d 825 (8th Cir. 1965)]. Since the plaintiffs were never appointed to these jobs, they had no vested or property rights in them. Consequently when they were not promoted, they were not denied anything that they had a right to. [Id at 336, 499 F. 2d at 693.]

Again, in my dissent in Chambers v. United States, 196 Ct. Cl. 186, 451 F. 2d 1045 (1971), I stated:

We can conclude from the authorities cited above that a government job is not property, does not Involve contract rights, 'but does include, tenure, salary and duties. It can only be conferred by appointment as authorized by Congress. Unless a person has been so appointed, he is not in the government employ and is not a public officer. * * * [Id. at 229, 451 F. 2d at 1070.]

I am persuaded by the foregoing authorities that if the plaintiff was a federal employee by reason of his employment by the AAFES, he was such employee for limited purposes only as indicated above and held such employment by ap-pointmmt and not by a contract with the Federal Government. Consequently, Pub. L. 91-350 does not apply.

Furthermore, I do not view Pub. L. 91-350 as intending to extend the Tucker Act’s waiver of sovereign immunity to include the type of case we have here. A review of the quoted legislative history makes it clear that Congress intended only to remove the existing ban on jurisdiction to hear and decide suits involving contracts entered into by nonappropriated fund instrumentalities for supplies and services other than services of employees, and not as a waiver of sovereign immunity over employment grievances.

In Young v. United States, 498 F. 2d 1211 (5th Cir. 1974) the fifth circuit considered a case closely analogous to the instant case before us. The plaintiff in Young sought review and back salary for action taken by the AAFES discharging him from his position as an architect. He argued, in part, that Pub. E. 91-350 in amending the Tucker Act, 28 U.S.C. *325§ 1346 (a) (2) (conferring concurrent jurisdiction on the district court), extended the jurisdiction of the district court to hear his pay case because he had a contract with the Exchange Service. The district court dismissed the suit on the grounds that:

* * * [T]he plaintiff’s employment relationship with the Exchange Service did not constitute a contractual relationship that could give rise to an action under the Tucker Act, * * *. Id. a 1214.]

The Fifth Circuit Court affirmed this action of the district court, thereby holding that the plaintiff did not have a contract with the Exchange Service.2 The decision of the majority in the instant case that our plaintiff had a contract with the AAFES is in direct conflict on this point with the decision of the Fifth Circuit Court in the Young case. The Fifth Circuit Court, in reviewing the legislative history of Pub. L. 91-350 in the Young case, denied that the amendment conferred jurisdiction on the federal courts to hear plaintiff’s claim, saying:

* * * In construing the 1970 amendments to the Tucker Act, we cannot ignore the fact that, in the much larger statutory scheme embracing federal employment, Congress has, when it has thought such action appropriate, dealt with Exchange Service employees directly and specifically. In our view, this circumstance, coupled with the dearth of concern with employment relationships in the legislative history of the 1970 amendments, strengthens our conclusion that those amendments were not intended to extend Tucher Act jurisdiction to the sort of “contract" plaintiff asserts existed in this case. * * * [498 F. 2d at 1217.] [Emphasis supplied.] [Footnote omitted.]

The Young case, being “on all fours” with the instant case on the contract question should stand as clear and convincing precedent for our denial of jurisdiction. Thus, the amendments to the Tucker Act were not intended to waive sovereign immunity over Exchange Service employment grievance cases.

*326The majority opinion goes against the plain language of the amendment, clear legislative history and convincing case precedent.

In any event, the plaintiff cannot recover under the theory advanced by the majority opinion to the effect that he is “governed by the same rules of law applicable to private employer-employee relationships” which “is contractual in nature.” If this is true, the plaintiff could only claim that he had been hired for an indefinite time for personal services. It is well settled in the law applicable to private employer-employee relationships that a hiring of an employee by an employer that is indefinite as to time is not enforceable and is terminable at the will of either party at any time without liability. See 1 Williston, Contracts § 39 (1957), where it is stated:

* * * [I]t is generally held that a hiring indefinite as to time is terminable at the will of either party and therefore creates no executory obligations. * * * [Footnote omitted.] [Id. at 119, Third Edition (Jaeger).]

In Atchison, T. & S.F. Ry. v. United States, 211 F. 2d 264 (10th Cir. 1954), the court said:

* * * It is the well settled rule that a contract providing solely and exclusively for the rendition of personal services, fixing no period of time during which it shall be in force and effect, and failing to specify that a certain amount of work shall be performed under its terms, is terminable at the will of either party. * * * [Many cases cited.] [Id. at 265.]

See also Fibreboard Products, Inc. v. Townsend, 202 F. 2d 180 (9th Cir. 1953), where the court held:

A contract for permanent employment is only a contract for an indefinite period of time and terminable at the will of either party, * * *. [Id. at 182.]

This is undoubtedly the general rule governing private employer-employee contractual relationships. Under the theory of the majority, all that the plaintiff had was employment that could be terminated at will by him or the AAFES without liability. The AAFES terminated the employment. The plaintiff has no rights under the Civil Serv*327ice laws or regulations and by statute no protection under the Lloyd-La Follette Act, 5 U.S.C. §7501 (1970), which, provides that:

§ 7501. Cause; procedure; exception.
(a) An individual in the competitive services may be removed or suspended without pay only for such cause as will promote the efficiency of the service.

Therefore, plaintiff has not alleged a claim on which relief can be granted. In short, plaintiff has not alleged a cause of action even under the theory of the majority and his petition should be dismissed. See Price v. United States, 65 Ct. Cl. 91 (1928), cert. denied, 277 U.S. 587; and Barea v. United States, 115 Ct. Cl. 44 (1949).

In summary, it makes no difference whether plaintiff was a federal employee for limited purposes because of his appointment to a position by the Exchange Service, or whether he was a private employee of the Exchange Service with a private industry employer-employee type contract for personal services for an indefinite period of time, because this court has no jurisdiction to entertain his employment grievance in either case. If he was a federal employee for limited purposes because of his appointment to a position by the Exchange Service, he had no contract and Pub. L. 91-350, supra, does not confer jurisdiction on this court to hear his case. If he was a private employee of the Exchange Service and held a private industry type of employment contract for indefinite personal services, as the majority holds, when the Exchange Service terminated his employment, which it had a right to do without liability, all of his contract rights were also terminated and he has no claim on which relief can be granted. Furthermore, plaintiff’s salary was being paid out of nonappropriated funds over which we have no jurisdiction. See the many cases cited above.

In any event, the plaintiff does not have a third party independent contract claim, being the only kind of contract claim as to which Congress waived sovereign immunity to suit when it enacted Pub. L. 91-350. The United States is immune from suit on all other nonappropriated fund claims including that of the plaintiff in this case.

*328The plaintiff cites Service v. Dulles, 354 U.S. 363 (1957) in support of bis position. Tbat case is clearly inapplicable. Tbe plaintiff there was a regular foreign service officer of the Department of State whose salary was paid out of appropriated funds. The court held that he was improperly discharged because the regulations of the department were not followed. By contrast, the plaintiff in the instant case was not an employee of the Air Force or of the Army whose salary was paid out of appropriated funds, but was an employee of a nonappropriated fund instrumentality and received his pay from nonappropriated funds. The cases are clearly distinguishable.

The plaintiff also cites Vitarelli v. Seaton, 359 U.S. 535 (1959), in support of his claim. That case is of no help to him. The facts are quite different and the cases are easily distinguishable. In that case the plaintiff was an employee of the Department of Interior. He was what is known as a Schedule A employee (i.e., one occupying positions other than those of a confidential or policy-determining character) in the excepted service. His salary was paid out of appropriated funds. Fie had no civil service protected status and could have been discharged summarily without any reasons being given. However, the Secretary discharged him on security reasons invoking department regulations to do so, but he did not follow the regulations. The court held that since the Secretary gratuitously invoked the regulations, he was required to follow them and having failed to do so, the discharge was unauthorized. This is a highly technical point not involved in our case. That case is distinguished from the instant case because there the plaintiff was an employee of the Department of the Interior and his salary was paid out of appropriated funds. Whereas, in our case, the plaintiff was not an employee of any executive department, but was an employee of a nonappropriated fund instrumentality of the government and his salary was paid out of nonappropriated funds. The crucial fact is that here plaintiff was paid out of nonappropriated funds. This brings us back to the starting point that prior to the 1970 amendment of the Tucker Act (28 U.S.C. § 1491) it was universally held that courts had no jurisdiction of claims of employees of nonappropriated fund *329instrumentalities of the government. See cases cited above. In 1970 the Tucker Act was amended giving this court jurisdiction of cases founded upon any express or implied contract with the United States by reason of any such contract with any of the Exchange Services. Therefore, the sole question in this case is whether or not plaintiff had a contract within the meaning of the 1970 amendment. I have already demonstrated that this was not the case whether plaintiff was a federal employee or was a private employee of the Exchange Service. In my opinion, there is no way that plaintiff can bring his claim within the meaning of the 1970 amendment so as to confer jurisdiction on this court to entertain his suit.

For all of the reasons set forth above, the court should either grant defendant’s motion and dismiss plaintiff’s petition on the ground we do not have jurisdiction of his claim, or, without reaching the jurisdiction issue, dismiss plaintiff’s petition because he has not alleged a claim on which relief can be granted, which was the course we followed in the cases of Travis v. United States, 199 Ct. Cl. 67 (1972); and Monett v. United States, 190 Ct. Cl. 1, 5 n. 4, 419 F. 2d 434, 436 (1969), cert. denied, 400 U.S. 346 (1970). See also, Brooks v. Dewar, 313 U.S. 354, 359-60 (1941); and Flanigan v. United States, 142 Ct. Cl. 600 (1958).

The five Exchange Services are: Army and Air Force Exchange Service, Navy Exchanges, Marine Corp Exchanges, Coast Guard Exchanges, and Exchange Councils of the National Aeronautics and Space Administration (84 Stat. 449). The record does not show the total number of their employees.

The district court decision was reversed and plaintiff was granted a new trial on pther grounds.