James O. Gorman v. Army and Air Force Exchange Service

U.S. Court of Appeals for the Fifth Circuit
James O. Gorman v. Army and Air Force Exchange Service, 619 F.2d 1141 (5th Cir. 1980)
1980 U.S. App. LEXIS 16198
Reavley, Goldberg, Garza, Reav-Ley

James O. Gorman v. Army and Air Force Exchange Service

Opinion

REAVLEY, Circuit Judge:

As in Sheehan v. Army & Air Force Exchange Service, No. 79—1471, 619 F.2d 1132 (5th Cir. 1980), the sole issue on this appeal is whether the district court possessed subject matter jurisdiction to con *1142 sider an action alleging wrongful discharge. This suit was initiated by James Gorman against the Army & Air Force Exchange Service (“AAFES”) after administrative remedies proved futile.

Gorman was employed as a merchandising specialist with the AAFES in its Executive Management Program. He received final notice of separation and thereafter exhausted administrative appeal. Suit was filed in the district court against the AAFES alleging that the discharge was (1) arbitrary and capricious and an abuse of discretion, (2) not in accordance with the AAFES personnel rules and regulations, (3) a deprivation of due process, and (4) not supported by substantial evidence. Gorman sought reinstatement; back pay, along with restoration of all other employment benefits; an attorney’s fee; and costs. The district court dismissed the suit for want of subject matter jurisdiction.

Today in Sheehan we hold that the district court had subject matter jurisdiction for a virtually identical suit under a confluence of 28 U.S.C. §§ 1331(a), 1346(a)(2) (1976) and 5 U.S.C. § 702 (1976). Although sections 1331(a) and 1346(a)(2) were not specified as bases for jurisdiction in Gor-man’s complaint, since the allegations meet the statutory requirements, the lower court had jurisdiction despite the omission. See Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607 n.6, 98 S.Ct. 2002, 2005 n.6, 56 L.Ed.2d 570 (1978); Schlesinger v. Councilman, 420 U.S. 738, 744 n.9, 95 S.Ct. 1300, 1306, 43 L.Ed.2d 591 (1975). For the reasons stated in Sheehan, we hold that the lower court had subject matter jurisdiction.

REVERSED AND REMANDED.

Reference

Full Case Name
James O. GORMAN, Plaintiff-Appellant, v. ARMY AND AIR FORCE EXCHANGE SERVICE, Defendant-Appellee
Cited By
2 cases
Status
Published