The opinion of the court was delivered by: WEBER
Plaintiff, Richard W. Boyd, was the owner of a 7 7/8 % Treasury Note, Series A-1986, dated May 17, 1976, due May 16, 1986, No. 10890 for $ 5,000, which had attached thereto twenty coupons, each valued at approximately $ 196.88.
The following facts are established beyond dispute between the parties. On or about December 8, 1977, there was a burglary of Plaintiff's home. Plaintiff was away at school and did not discover the theft of this bond from a strong box until he returned on December 28, 1977. On that date, Plaintiff immediately reported the theft to the issuing bank in Harrisburg, and to his local bank in Pittsburgh, Union National. A Union bank official immediately notified the Pittsburgh Branch of the Federal Reserve Bank of Cleveland by telephoning and speaking to one Daniel Robinson. Mr. Robinson advised that the plaintiff contact a Ms. Fawcett of the Correspondence and Claims Division of the Department of Treasury in Washington D.C.
Acting on this advice, the plaintiff wrote to Ms. Fawcett on January 7, 1978, reporting the theft and requesting information as to how to go about having the note replaced.
On January 11, 1978, the note was presented for payment by one James Miller, at the Bellevue branch of Pittsburgh National Bank. Before cashing it, a Mr. Sullivan of the Bank's Security and Safety Dept. called the Pittsburgh Branch of the Federal Reserve Bank of Cleveland to determine whether the note had been reported as stolen. He was orally informed by the Federal Reserve that it had not been reported as stolen, even though they had been notified of the theft two weeks earlier. Based on this information, Pittsburgh National Bank cashed the note by crediting the account of James Miller.
Unaware that the note had been cashed, Mr. Boyd called Ms. Fawcett of the Department of Treasury to find out the status of his letter of Jan. 7. Ms. Fawcett told him the letter had been received and was being acted upon.
On January 31, 1978, the Department of Treasury responded to Mr. Boyd's letter by sending him the necessary forms to be completed for bond replacement. The forms were completed by Feb. 22, 1978. The note was placed on the stolen list on Feb. 24, 1978.
On March 8, 1978, the Department of Treasury sent a letter to Boyd informing him that the evidence submitted was sufficient to warrant the granting of relief upon a filing of a proper bond of indemnity. There is no evidence that such a bond was ever filed. On May 23, 1978, the Department wrote another letter to Mr. Boyd, informing him that since the note had already been honored on an authorized transaction, that Boyd's claim could no longer be considered.
This action was instituted on May 18, 1979. The plaintiff alleges that the Federal Reserve Bank was negligent in failing to report promptly the theft of the note, causing the note to be paid to one not the rightful owner, and causing the plaintiff damage under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., jurisdiction for such a claim being pursuant to 28 U.S.C. § 1346(b). The plaintiff also alleges that he was unreasonably denied the relief available under 31 U.S.C. § 738a, jurisdiction for such a claim being pursuant to 28 U.S.C. § 1346(a)(2), the Tucker Act. The plaintiff requests relief in the form of replacement of the note or compensation for the loss of the note.
The Defendants filed a Motion to Dismiss on the grounds of lack of jurisdiction and failure to state a claim on which relief can be granted. The motion contained evidentiary material and so the court ordered that the Motion to Dismiss be considered as one for Summary Judgment, and disposed of according to Fed.R.Civ.P. 56.
The defendant claims that neither the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671, Et seq., nor the Tucker Act, 28 U.S.C. § 1346(a)(2), nor 31 U.S.C. § 738a affords any jurisdictional basis for this suit as against any of the named defendants.
First, the defendant claims lack of jurisdiction over certain of the named defendants under either the FTCA or the Tucker Act. Only the United States Government itself is amenable to suit under either of these statutes. Employees and specific government agencies are not proper defendants. Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256 (2nd Cir. 1975); Morris v. United States, 521 F.2d 872, 874-75 (9th Cir. 1975); Morano v. United States Naval Hospital, 437 F.2d 1009, 1010 (3d Cir. 1971).
The court agrees and therefore, some of the named defendants, the Department of Treasury, W. Michael Blumenthal, Secretary, and the Federal Reserve Bank of Cleveland are not proper parties and this action must be dismissed as to them. This, however, in no way alters the availability of suit against the United States since they were included as a named defendant and are the proper party.
Second, the government claims that 31 U.S.C. § 738a alone does not provide a cause of action and so does not confer subject matter jurisdiction. That section authorizes the Secretary of the Department of Treasury to provide relief on account of loss or theft of any security identified by number and description. This statute provides the basis for the plaintiff's action under the Tucker Act for breach of contract and is a necessary corollary of the claim. In Bodek v. Dept. of Treasury, Bureau of Public Debt, 532 F.2d 277 (2nd Cir. 1976), both the District Court and the Circuit Court found no jurisdictional problems with a suit brought under 31 U.S.C. § 738a, finding that jurisdiction was conferred by the Tucker Act, 28 U.S.C. § 1346(a)(2), 532 F.2d at 279, f. 7.
Third, the defendant contends that this court lacks jurisdiction under the FTCA on the grounds that plaintiff has failed to satisfy all the preconditions to suit set out in 28 U.S.C. § 2675(a), requiring that the claimant must first have presented the claim to the appropriate federal agency and his claim shall have been ...