Mullens v. United States OF
Case Date: 10/02/1992
Docket No: 92-1300
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October 2, 1992 [NOT FOR PUBLICATION] ____________________ No. 92-1300 RONALD MULLENS, ET AL., Plaintiffs, Appellants, v. UNITED STATES OF AMERICA, Defendant, Appellee. ___________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Morton A. Brody, U.S. District Judge] ___________________ ____________________ Before Breyer, Chief Judge, ___________ Torruella and Selya, Circuit Judges. ______________ ____________________ Terrence M. Narrigan, with whom Vafiades, Brountas & ______________________ ______________________ Kominsky, were on brief for appellants. ________ Mark W. Pennak, with whom Stuart M. Gerson, Assistant ________________ _________________ Attorney General, and Richard S. Cohen, United States Attorney, ________________ were on brief for appellee. ____________________ ____________________ Per Curiam. In June, 1988, appellants bought a home __________ from the Farmers' Home Administration (the "FHA"). Appellants allege that (1) under 42 U.S.C. 4822 et seq. and 7 C.F.R. ________ Subpart A, the FHA had a duty to inspect appellants' home for lead paint and to notify appellants if any existed; and (2) that the FHA failed to do so. They further allege that as a result, their daughter ingested lead paint in the home, and consequently, suffered from lead poisoning. Pursuant to the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. 2671, et seq., appellants _______ brought suit against the FHA claiming, among other things, negligence and negligent misrepresentation. The district court granted the FHA's motion to dismiss for lack of subject matter jurisdiction. We affirm that decision. The FTCA confers jurisdiction on the federal district courts over certain tort claims against the federal government. However, it excludes "any claim arising out of misrepresentation." 28 U.S.C. 2680(h). Thus, the federal district courts have no jurisdiction over misrepresentation claims against the United States. Under United States v. ______________ Neustadt, 366 U.S. 696, 703-04 (1960) (quoting Hall v. United ________ ____ ______ States, 274 F.2d 69, 71 (10th Cir. 1959)), the misrepresentation ______ exclusion includes negligent misrepresentations. Appellants essentially claimed that the FHA's failure to warn them about the lead paint in their home was negligent. Their harm arose because they relied on the absence of a warning that the lead paint existed. Although appellants presented these -2- allegations as a negligence claim, in substance, they have alleged a negligent misrepresentation claim. Neustadt, 366 U.S. ________ at 706. Thus, the district court had no subject matter jurisdiction. Affirmed. ________ -3- |