The opinion of the court was delivered by: Decker, District Judge.
Plaintiff Paul K. Newberg brought this action against the
Federal Savings and Loan Insurance Corporation ("FSLIC"), Service
Savings and Loan Association ("Service"), and Thomas J. Garvey
and Chester Zarecki, liquidators of Service ("liquidators"),
alleging that he was fraudulently induced to buy shares in
Service from its former directors and officers. The FSLIC then
counterclaimed against Newberg, naming James B. Wilson and Sam A.
Mercurio as additional counterdefendants, alleging a conspiracy
to gain control of Service and thereafter cause Service funds to
be deposited in banks, at no interest, so that loans could be
made from these banks to counterdefendants. Counterdefendant
Mercurio then counterclaimed against FSLIC, Service, and the
liquidators, charging a conspiracy to wrongfully liquidate
Service and convert its funds to their own use, all to the damage
of Mercurio and others who were parties to a contract to purchase
a majority interest in Service. Presently before the court are
FSLIC's motion to dismiss the Mercurio counterclaim and motions
for summary judgment filed by the others named in said
The complained of liquidation of Service, and the transfer of
its assets to the FSLIC, occurred in 1965. Yet this counterclaim,
charging a fraudulent conversion of assets, was not filed until
February, 1970, it is therefore barred, as to the FSLIC, by the
provisions of 28 U.S.C. § 2401 in effect in 1965:
"(b) A tort claim against the United States shall be
forever barred unless action is begun within two
years after such claim accrues * * *."
See Federal Savings and Loan Insurance Corporation v. Quinn,
419 F.2d 1014, 1017 (7th Cir. 1969), holding the provisions of the
Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., applicable to
the FSLIC. And see Davis v. Foreman, 239 F.2d 579 (7th Cir.
1956). cert. den. 353 U.S. 930, 77 S.Ct. 719, 1 L.Ed.2d 724
(1957); United States v. Thrower, 267 F. Supp. 608 (M.D.Tenn.
Mercurio's contention that the statute of limitations has not
yet run, because defendants allegedly continue to withhold the
assets of Service, is without merit. That defendants are
allegedly still enjoying the fruits of their wrongful conduct
does not mean that the cause of action did not accrue when this
allegedly wrongful conduct occurred. Indeed, to so hold would
render the provisions of § 2401 meaningless and of no effect in
a great number of cases.
There are a number of other reasons why this counterclaim must
be dismissed as to the FSLIC, all of which arise from the
applicability of the Tort Claims Act. First, it is clear that
under that Act, a federal agency cannot be sued directly. Rather,
action must be brought against the United States. 28 U.S.C. § 2679(a)
and 1346(b); Holmes v. Eddy, 341 F.2d 477, 480 (4th Cir.
1965), cert. den. 382 U.S. 892, 86 S.Ct. 185, 15 L.Ed.2d 149;
Robinson v. Green (N.D.Ill. 1968, 68 C 1179).
Second, no suit may be maintained under the Tort Claims Act
when "based upon the exercise or performance * * * [of] a
discretionary function or duty on the part of a federal
agency * * * whether or not the discretion involved be abused."
28 U.S.C. § 2680(a). The purchase of the assets of Service by the
FSLIC was done pursuant to 12 U.S.C. § 1729(f), which provides:
"In order to prevent a default in an insured
institution * * * the Corporation is authorized, in
its discretion, to make loans to, purchase the assets
of, or make a contribution to, an insured
institution * * *." (Emphasis supplied.)
Finally 28 U.S.C. § 2680(h) excepts from the coverage of the
Tort Claims Act "[a]ny claim arising out of * * *
misrepresentation, deceit, or interference with contract rights."
The counterclaim alleges a conspiracy to defraud Mercurio and
other contract purchasers of the shares of Service, and thus
comes within these exceptions. Thompson v. United States,
408 F.2d 1075, 1081 (8th Cir. 1969); Tapia v. United States,
338 F.2d 416, 417 (2d Cir. 1964), cert. den. 380 U.S. 957, 85 S.Ct. 1096,
13 L.Ed.2d 974 (1965); Covington v. United States, Department of
Air Force, 303 F. Supp. 1145, 1149 (N.D.Miss. 1969); Pargament v.
Fitzgerald, 272 F. Supp. 553, 556 (S.D.N.Y. 1967), aff'd.
391 F.2d 934 (2d Cir. 1968).
For all of the aforementioned reasons, the FSLIC must be
dismissed from the Mercurio counterclaim.
Service and its liquidators have moved for summary judgment on
the Mercurio counterclaim, alleging that this claim is barred by
32 Ill.Rev.Stat. § 906. That statute provides:
"The liquidators shall fix a time for all persons
having claims against the association, other than as
members thereof, to present such claims, and shall
cause notice to be published, requiring all persons
to present the claims on or before such date * * *. A
claim may be presented at any time on or before the
date fixed * * * but any claim not so presented shall
be barred. Upon the disallowance of any claim, the
liquidators immediately shall notify the claimant ...