The opinion of the court was delivered by: Bua, District Judge.
Before the Court is the defendant Envirodyne's motion to
dismiss for lack of jurisdiction under 28 U.S.C. § 1346(b). For
the reasons stated herein, defendant's motion to dismiss is
The plaintiff is an engineer. In September 1975 he entered
into an employment contract with Westenhoff & Novick, Inc. The
defendant Envirodyne is successor to Westenhoff & Novick. The
plaintiff was hired to serve as Project Manager for the design
and construction of a certain project in the Republic of El
Salvador for a period of 18 months beginning in July 1975.
Plaintiff alleges that in October 1975, defendant Envirodyne
terminated his employment in breach of the terms of that
Plaintiff originally alleged diversity jurisdiction under
28 U.S.C. § 1332. Upon defendant's motion to dismiss for lack of
diversity, plaintiff filed his first amended complaint,
additionally naming as defendants Henry W. Kissinger, former
Secretary of State of the United States, and other unknown
persons. He now claims this Court has jurisdiction pursuant to
28 U.S.C. § 1346(b). Defendant Envirodyne again has filed a
motion to dismiss based on lack of jurisdiction under the
Federal Tort Claims Act, 28 U.S.C. § 1346(b).
As the language of the complaint makes clear, this claim is
based in contract and does not fall within the coverage of the
Federal Tort Claims Act, 28 U.S.C. § 1346(b). The Tucker Act,
28 U.S.C. § 1346(a)(2), constitutes the sole jurisdictional
basis for a suit against the United States sounding in
contract, and exclusive jurisdiction is in the Court of Claims
if the amount in issue exceeds $10,000. 28 U.S.C. § 1346(a)(2)
In some instances, a breach of contract can also be treated
as a tort. However, in this action plaintiff asserts damages
based on breach of contract. It is settled that claims founded
upon an alleged failure to perform contractual obligations are
not deemed "tort" claims for the purposes of the division
between Tort Claims Act and Tucker Act jurisdiction.
Blanchard v. St. Paul Fire & Marine Insurance Co., 341 F.2d 351
(5th Cir. 1965). Therefore, the Court holds that where, as in
this case, the action is essentially for breach of a
contractual undertaking and the liability, if any, depends
wholly upon the government's alleged promise, the action must
be brought under the Tucker Act and not under the Federal Tort
Under the Tucker Act, federal jurisdiction to hear
plaintiff's action is limited to the Court of Claims because
the amount of damages claimed, $30,400, exceeds $10,000.
28 U.S.C. § 1346(a)(2) and 1491. This Court is empowered to
transfer plaintiff's case to the Court of Claims under
28 U.S.C. § 1406(c). However, plaintiff's amended complaint fails
to define a claim against the United States or Henry Kissinger,
who is named as defendant. The real parties in interest to the
employment contract are plaintiff and defendant Envirodyne. In
addition, the underlying employment contract does not name the
United States nor Henry Kissinger as a party, and therefore it
cannot be considered a government contract on which the United
States is liable.
If the plaintiff can allege facts sufficient to support the
tenuous connection between Kissinger, AID (Agency for
International Development), and Envirodyne on which he rests
his contract action, he can bring an action in the U.S.C.ourt
of Claims. However, in light of this tenuous connection, the
Court declines to transfer the case to the Court of Claims and
instead dismisses the case without prejudice to file an action
in the U.S.C.ourt of Claims. United States v. Welborn,
495 F. Supp. 833, 837 (M.D.N.C. 1980).
Since this Court does not have jurisdiction to hear this case
under either 28 U.S.C. § 1346(b) or § 1346(a)(2), defendant's
motion to ...