CERTIORARI TO THE UNITED STATES COURT OF CLAIMS
This case involves a suit by respondent's decedent,*fn1 a civilian employee of the Army and Air Force Exchange Service (AAFES), claiming wrongful discharge from his employment. He asserted jurisdiction under the Tucker Act, 28 U.S.C. § 1491, which provides for suits in the Court of Claims upon any express or implied contract with such military exchanges. The Government moved to dismiss for lack of jurisdiction. The Court of Claims concluded that it had jurisdiction because respondent's decedent's relationship with the AAFES was based upon an implied contract of employment and such a contract is covered, since 1970, by the Tucker Act. 206 Ct. Cl. 303, 513 F.2d 1360. We granted certiorari to resolve a conflict between this decision and a contrary holding of the United States Court of Appeals for the Fifth Circuit in Young v. United States, 498 F.2d 1211 (1974). 423 U.S. 821.
The status of claims against military post exchanges has been in some doubt since the decision of this Court in Standard Oil Co. v. Johnson, 316 U.S. 481 (1942). There the Court, in striking down a state tax on the distribution of motor fuel by Army post exchanges, held that such exchanges "are arms of the Government deemed by it essential for the performance of governmental functions. They are integral parts of the War Department...." However, the Court also observed that the "Government assumes none of the financial obligations of the exchange." Id., at 485.
The latter observation was the basis of a series of decisions by the Court of Claims to the effect that it lacked jurisdiction over claims concerning the activities of non-appropriated fund instrumentalities.*fn2 That court held that it could not entertain suits based on a contract for services with such an entity, because, since the Government had assumed no liability for the entity's financial obligations it could not be said to have consented to a suit designed to vindicate such obligations. Therefore, no "claim against the United States" existed under the Tucker Act which is the source of Court of Claims jurisdiction, 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); Kyer v. United States, 177 Ct. Cl. 747, 369 F.2d 714 (1966), cert. denied, 387 U.S. 929 (1967).
The Court of Claims, while denying jurisdiction, recognized the harsh consequences of this result since it could leave claimants against the exchanges with no forum in which to seek relief. However, the court recognized that "it is up to Congress to remedy this apparent harsh result.... [T]he courts should refrain from legislating by judicial fiat." Keetz v. United States, 168 Ct. Cl. 205, 207 (1964).
In 1970 Congress amended the Tucker Act and provided: S
"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." Pub. L. 91-350, 84 Stat. 449.I
The purpose of this amendment, as the reports of both Houses made clear, was to afford contractors a federal forum in which to sue nonappropriated fund instrumentalities by doing away with the inequitable "loophole" in the Tucker Act. S. Rep. No. 91-268, p. 2 (1969); H.R. Rep. No. 91-933, p. 2 (1970). Borden, supra; Pulaski, supra; Keetz, supra; and Kyer, supra, were cited as examples of the "harsh result" which the amendment would correct. The purpose of the bill was clearly to provide a remedy to "contractors" with nonappropriated fund instrumentalities, e.g., S. Rep. No. 91-268, pp. 4-5, and there is nothing in the legislative history to indicate, as the Government contends, that "contractors" did not include anyone who had formed a contractual employment relationship. Since the statute applies, by its terms, to "any express or implied contract" we hold that it is applicable to employment contracts as well as those for goods or other services. The fact that Congress has dealt specifically with exchange employees when it wanted to bring them within or leave them without the provisions of a law dealing with federal employees generally (e.g., 5 U.S.C. § 8171 (b)) is not of controlling weight here. This statute deals with those who have a contractual relationship with military exchanges rather than with different classes of federal employees. If employees of military exchanges are within its general language, they are not removed from its effect by congressional practices in enacting other kinds of statutes.
The Government alternatively contends that AAFES employees do not have a contractual relationship with their employer, and that like orthodox federal employees they serve by "appointment" to a particular position. While there is some ambiguity in the opinion of the Court of Claims, that court apparently agreed that plaintiff
and others like him did have a contractual employment relationship with the AAFES. We think it would be both unnecessary and unwise for us to decide the question at this stage of the case, and we think that the Court of Claims gave insufficient attention to ...