1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

__________________________________

AMERICAN FEDERATION OF *

GOVERNMENT EMPLOYEES LOCAL 1, *

*

and *

*

JUSTIN MCCRARY, *

Plaintiffs, *

*

v. * Civil No. 3: 04-CV-1219-H

*

DAVID M. STONE, in his official capacity as *

Administrator, Transportation Security *

Administration, United States Department of *

Homeland Security, *

Defendant. *

MEMORANDUM OPINION AND ORDER

Before the Court is the Judgment and Mandate, issued on September 21, 2005, from

the Fifth Circuit Court of Appeals in the instant case. (See Judgment, Fifth Circuit Court of Appeals,

No. 04-10009). Also before the Court are Defendant's Motion to Dismiss under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6), filed September 8, 2004; Plaintiffs' Response, filed October

8, 2004; and Defendant's Reply, filed October 25, 2004. Pursuant to the Mandate, the Court must

decide Plaintiff’s breach of contract claim on remand. For the following reasons, the Court is of the

opinion that Defendant's Motion should be GRANTED as to Plaintiff’s breach of contract claim.

The Court does not reiterate its recitation of the facts underlying the instant dispute. For a

discussion of the background of the case, see the Court’s Memorandum Opinion and Order, entered

November 2, 2004.

 

 Case 3:04-cv-01219-H Document 23 Filed 09/23/05 Page 1 of 3 PageID 137
2

McCrary raises a claim for back pay arising under a theory of breach of contract.

However, McCrary has no actionable claim against the federal government under such a theory.

“[A]bsent specific legislation, federal employees derive the benefits and emoluments of their

positions from appointment rather than from any contractual or quasi-contractual relationship with

the government.” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed. Cir. 1995) (internal quotation

omitted). When an employee is hired by appointment, a breach of contract action against the federal

government is precluded. See id. at 1105. A plaintiff’s employment “cannot be simultaneously

governed by both an appointment and a contract.” Collier v. United States, 56 Fed. Cl. 354, 356

(2003); see United States v. Hopkins, 427 U.S. 123, 128-29 (1976). A contractual relationship with

the federal government can only be established if the employment relationship is “specifically

spelled out as a contract.” See Troutman v. United States, 51 Fed. Cl. 527, 534 (2002) (internal

citation omitted).

To determine if an employee’s status is one of appointee or contract, the Court looks

to relevant statutory language and regulations and the language of the hiring documents. See

Hopkins, 427 U.S. at 127-30. The relevant statutory language does not support a finding that a

contractual relationship exists. Under the statute, the TSA Administrator is granted the authority to

“appoint . . . and fix the compensation, terms and conditions of employment. . . .” 49 U.S.C. §

323(a); 49 U.S.C. § 44935 (note) (emphasis added). No explicit mention of a contractual

relationship is made in the relevant statute. Additionally, it is undisputed that McCrary’s conditional

offer of employment indicated that it was one of conditional appointment and did not explicitly

indicate that McCrary was hired as a contract employee. (See Pl.’s Resp. at 11-12.) Therefore, the

Court finds as a matter of law that Plaintiff was not a contract employee. 

 

 Case 3:04-cv-01219-H Document 23 Filed 09/23/05 Page 2 of 3 PageID 138
3

Accordingly, Defendant’s Motion to Dismiss McCrary’s breach of contract claim is

GRANTED. Plaintiff’s Complaint is DISMISSED WITH PREJUDICE.

SO ORDERED.

DATED: September 23, 2005

 

 Case 3:04-cv-01219-H Document 23 Filed 09/23/05 Page 3 of 3 PageID 139