Unpublished Disposition, 902 F.2d 40 (9th Cir. 1984)

MEMORANDUM^* 

J. William Oldenburg appeals the district court's dismissal of his complaint against the Federal Savings and Loan Insurance Corporation (FSLIC). We have jurisdiction under 18 U.S.C. § 1291 (1982). We affirm.

We review de novo the dismissal of a complaint. At this stage in his appeal, Oldenburg contends only that the district court improperly dismissed his first cause of action. Oldenburg alleged in his complaint that by various regulatory actions between March 30, 1984 and August 27, 1984, FSLIC breached and directed State Savings and Loan Association to breach a contract between himself and State Savings. Oldenburg sought money damages.

The district court dismissed this claim as barred by res judicata principles. The court, however, should have dismissed for lack of subject matter jurisdiction. The Federal Tort Claims Act expressly states that it does not waive the United States' immunity from suit for money damages for " [a]ny claim arising out of ... interference with contract rights." 28 U.S.C. § 2680(h) (1982).

Since FSLIC is not alleged to have been a party to the contract at the time of FSLIC's alleged wrongful actions, Oldenburg's first cause of action, although labeled "Breach of Contract," can only be interpreted to be a claim for interference with contract rights. We reject Oldenburg's suggestion that we read his cause of action as against FSLIC only in its capacity as receiver of State Savings, requesting the award of damages from State's assets. Such a reading of the cause of action is simply not plausible. All of the allegations in the complaint are of actions taken by FSLIC rather than by State Savings, and taken before FSLIC was appointed receiver for State Savings.

The judgment of the district court dismissing Oldenburg's second and third causes of action is AFFIRMED. The judgment of the district court dismissing Oldenburg's first cause of action under res judicata principles is VACATED. The case is REMANDED for the district court to dismiss Oldenburg's first cause of action for lack of subject matter jurisdiction.

AFFIRMED in part, VACATED in part and REMANDED with instructions.