35. Plaintiff's informing the Naval Finance Center of his changes of address was not notice to the McKeesport Reserve Center.
36. The orders reactivating plaintiff were hand delivered to him personally on April 14, 1979 by McLellon and Rogers when he was with his reserve unit for a weekend drill.
37. Plaintiff obeyed the activation orders, and served in the Navy from May 14, 1979 until his release in October, 1980.
Sovereign immunity extends to actions against agencies of the United States such as the Department of the Navy. See, 14 Wright, Miller & Cooper, Federal Practice and Procedure, § 3655 (1976). Sovereign immunity bars this suit unless plaintiff can establish that the Congressional waiver provided by the Tucker Act, 28 U.S.C. § 1346(a) is applicable. Lehman v. Nakshian, 453 U.S. 156, 160, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981); United States v. Mitchell, 463 U.S. 206 , 103 S. Ct. 2961, 2965, 77 L. Ed. 2d 580, 588 (1983).
The Tucker Act gives federal district courts original jurisdiction over civil actions against the United States not exceeding $10,000 in amount "founded . . . upon any express or implied contract with the United States." 28 U.S.C. § 1346(a)(2). The burden is upon the plaintiff to show that there was such a contract and that it was breached by the federal Government. Plaintiff failed to establish an express or implied contract with the United States, and even if the Agreement were such a contract, it was not breached.
Plaintiff asserts that under the "other benefits as provided by law and regulation" clause of the Agreement (see Finding No. 3 supra) the Navy was contractually bound to follow regulation BUPERSINST 5400.42E CH-2 set forth in Administrative Procedures for Naval Reservists on Inactive Duty.*
The United States Supreme Court has held that Government agency regulations do not constitute terms of an implied contract. Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728, 72 L. Ed. 2d 520, 102 S. Ct. 2118 (1982). In Sheehan, supra, the Court said "jurisdiction over respondent's [plaintiff's] complaint cannot be premised on the asserted violation of regulations that do not specifically authorize awards of money damages." Id. at 739. Plaintiff alleges that BUPERSINST 5400.42E CH-2 is part of an implied-in-fact contract with the Navy. Sheehan makes clear that is not the law.
Plaintiff cites Mitchell, supra, to the contrary and gives the decision a broader scope than is justified. The Supreme Court there held that the Tucker Act granted jurisdiction where statutes and regulations clearly established fiduciary obligations of the Government in the management and operation of Indian lands and resources that could fairly be interpreted as mandating compensation for damages sustained. Under those statutes and regulations the availability of remedies for the Government's breach of fiduciary duties as trustee was held actionable. Here there is no comparable allegation of breach of trust, Cf., United States v. Mitchell, 445 U.S. 535, 542, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980).
The Naval Regulations cannot fairly be interpreted as mandating compensation for damages sustained by a reservist for having been recalled to active duty. The regulation itself provided for administrative review at the time, see BUPERSINST 5400.42E CH-2, 305.1; the Secretary of the Navy was subject to federal court action to enjoin reactivation prior thereto. See Dougherty v. Lehman, 688 F.2d 158 (3d Cir. 1982). During a term of illegal active duty, plaintiff's release might have been obtained by writ of habeas corpus. Cf. West v. Chafee, 560 F.2d 942 (8th Cir. 1977); Bandoy v. Commandant of Fourth Naval District, 495 F. Supp. 1092 (E.D.Pa. 1980). But the regulations deal with appropriate procedures for notice and some kind of hearing prior to activation. Nothing expressly or implicitly contemplates any monetary consideration whatsoever.
Even if plaintiff had successfully established the Naval Regulations as an implied term of plaintiff's enlistment contract with the Navy, there was no breach of it. Plaintiff does not dispute his unsatisfactory attendance record at the mandatory drills. When nominated for active duty, his orders were sent to the address plaintiff provided to the McKeesport Reserve Center. The original receipts of delivery of all the certified letters were destroyed by defendant so that only illegible copies were available at trial. However, plaintiff had the burden of proving that the Navy did not send him notice or sent notice to an incorrect address. Plaintiff failed to show either.
Plaintiff's testimony that he filed change of address cards at the McKeesport Reserve Center was not credible; the testimony of the two Government witnesses was. Plaintiff kept the Naval Finance Center which issued his paycheck advised of his multiple address changes; he did not do the same for the McKeesport Reserve Center. The Navy complied with BUPERSINST 5400.42E CH-2 by sending his nomination letter to the reservist's "most recent mailing address." So even if that regulation were part of an implied-in-fact contract between plaintiff and the defendant, there was no breach.
Plaintiff's claims that the Navy's improper notification deprived him of the right to appeal his reactivation. This argument cannot prevail. Plaintiff received personal notice by hand delivery at a drilling session at least one month prior to his reporting date. At no time during that month did he institute legal proceedings challenging the reactivation order. Plaintiff has failed to show he is entitled to recover damages.
Facts stated in this discussion supplement the Findings of Fact made herein.
CONCLUSIONS OF LAW
1. The Tucker Act, 28 U.S.C. § 1346(a)(2) provides a waiver of the traditional doctrine of sovereign immunity in civil suits founded upon any express or implied contract with the United States.
2. Plaintiff has failed to prove a contract between the United States and the plaintiff that contemplates an award of damages for its breach.
3. Even if there were a contract such as plaintiff asserts, its terms were not breached by the defendant. The notification procedure set forth in BUPERSINST 5400.42E CH-2, alleged to be part of the contract, was substantially followed by defendant.
4. Plaintiff was not deprived of his right to make a statement of explanation or opposition to his involuntary order to active duty.
5. Judgment will be entered for defendant.
BUPERSINST 5400.42E CH-2
21 JUL 1980
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