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 finally denied by the agency in writing and sent by certified or registered mail.
The government claims that plaintiff's letter to Ms. Fawcett of January 7, 1978, requesting information as to how to have the note replaced does not qualify as an administrative claim under 28 C.F.R. § 14.2(a). That section requires an executed Standard Form 95 or "other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property . . . alleged to have occurred by reason of the incident." The government argues that the letter fails as a claim since it is only a "request", not a demand, and because it fails to satisfy the sum certain requirement.
A total reading of the letter would show that it does meet those requirements. The government was made aware of Boyd's purpose of seeking replacement of the note. The note and its value was specifically described in the letter. This would qualify as a sum certain since the government could calculate from that information the total value of the note and its coupons. Any other interpretation of the letter would be putting form over substance.
Furthermore, even if the letter did fall short as an administrative claim, the Department of Treasury Form PD 1022-1, Report/Application for Relief on Account of Loss, Theft or Destruction of United States Bearer Securities (individuals), which was completed by February 22, 1978, would clearly satisfy the requirements for an administrative claim. The very fact that it is the basis on which the Department of Treasury makes its decision on whether or not to grant relief shows that the Department considers it to be a claim. Also, the form itself reads "the undersigned owner hereby requests the Secretary of the Treasury to grant relief authorized by law and the applicable regulations" . . .
Therefore, a claim was clearly made to the Department of Treasury, the appropriate agency, by Boyd, in conformance with 28 C.F.R. § 14.2(a).
The government also argues that even if the letter did qualify as an administrative claim, this suit is time-barred under 28 U.S.C. § 2401(b), which requires that tort suits be brought within 6 months of final agency denial of the claim. The government contends that Boyd's claim was finally denied by the Department of Treasury letter of May 23, 1978 which indicated that the claim could no longer be considered since the note had been honored in an authorized transaction. Although the government was highly concerned about whether Boyd's letter had conformed with the regulations, its own final agency denial failed to conform with the regulations. 28 C.F.R. § 14.9 states that a written denial "shall include a statement that, if the claimant is dissatisfied with the agency action, he may file suit in an appropriate District Court not later than 6 months after the date of mailing of the notification." The government's letter of May 23rd contains no such statement. This failure of the government to make plaintiff aware of his rights prevents this communication from being a proper final agency denial. Here a possible plaintiff may lose his cause of action by failing to comply with federal regulations of which he has no knowledge. Boyd has actively pursued his cause and has tried to work within the government's guidelines. He should not be denied further resolution of his claim where the government failed in its responsibility to him.
Since there has been no proper final agency denial within 6 months of the claim as required by 28 U.S.C. § 2675, the plaintiff has the right at any time of his own option to deem such a failure to be a final agency denial. This is precisely the result allowed in Mack v. United States Postal Service, 414 F. Supp. 504 (D.C.Mich.1976). In that case, an agency had not acted on the plaintiff's claim. The court found that the denial could not be deemed to have occurred six months after the date of the claim. Such a result would be too harsh. The court said that 28 U.S.C. § 2675(a) and the statute of limitations of 28 U.S.C. § 2401 are to be read together. 28 U.S.C. § 2675(a) provides:
"The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section."
The court in Mack found that this gave the claimant the option to pick the time on which the agency action was deemed to be finally denied.
"If so, does the phrase "any time thereafter' permit the claimant to wait any reasonable period of time before deeming his claim denied and filing a federal lawsuit? While this interpretation may seem to be the equivalent of no limitation, it appears to be the most reasonable reading of the statutory scheme. The alternative of treating all unanswered claims as denied six months after they are filed and commencing the six-month period for filing suit under § 2401(b) at that time is far too harsh for the claimant whose faith in the administrative process leads him to wait more than six months for the resolution of his claim." 414 F. Supp. at 507.