Mullens v. United States OF ( 1992 )

USCA1 Opinion

          October 2, 1992       [NOT FOR PUBLICATION]






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          No. 92-1300

                               RONALD MULLENS, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE 

                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                         Torruella and Selya, Circuit Judges.
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                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.



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                    Per Curiam.   In June, 1988,  appellants bought a  home
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          from the  Farmers' Home  Administration (the "FHA").   Appellants

          allege  that (1)  under 42  U.S.C.    4822 et  seq. and  7 C.F.R.
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          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
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          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.
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          Neustadt, 366  U.S. 696,  703-04 (1960)  (quoting Hall  v. United
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          States, 274 F.2d 69, 71 (10th Cir. 1959)),  the misrepresentation
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          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


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          allegations  as  a  negligence  claim, in  substance,  they  have

          alleged a negligent misrepresentation  claim.  Neustadt, 366 U.S.
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          at  706.    Thus,  the  district  court  had  no  subject  matter

          jurisdiction.

                    Affirmed.
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