Sam Lee v. United States ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        SEP 21 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    SAM LEE,                                        No.    20-16722
    Plaintiff-Appellant,            D.C. No.
    2:20-cv-00498-JCM-BNW
    v.
    UNITED STATES OF AMERICA;                       MEMORANDUM*
    UNITED STATES OF AMERICA EX REL
    UNITED STATES EQUAL
    EMPLOYMENT OPPORTUNITY
    COMMISSION,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the District of Nevada
    James C. Mahan, District Judge, Presiding
    Submitted August 12, 2021**
    San Francisco, California
    Before: SILER,*** CHRISTEN, and FORREST, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Eugene E. Siler, United States Circuit Judge for the
    U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
    Sam Lee did not file his employment discrimination lawsuit in time. Under
    Title VII, a plaintiff must file suit within 90 days of receiving his right-to-sue letter
    from the Equal Employment Opportunity Commission (EEOC). See 42 U.S.C. §
    2000(e)-5(f)(1). Lee received his letter in October and did not file suit until the
    following February. But before he filed his untimely suit, the EEOC issued a
    second right-to-sue letter (upon his request), which claimed to restart the deadline.
    It did not. As a result, Lee alleges he incurred expenses pursuing a claim he would
    not have otherwise pursued. And he now sues the United States for negligence,
    breach of the covenant of good faith and fair dealing, declaratory relief, and
    negligent supervision.
    The district court dismissed his case for lack of subject matter jurisdiction. It
    found that the EEOC was acting under a regulation and thus sovereign immunity
    was not waived under the Federal Tort Claims Act (FTCA). We have jurisdiction
    under 28 U.S.C. § 1291 and review the dismissal under Federal Rule of Civil
    Procedure 12(b)(1) de novo. Davidson v. Kimberly-Clark Corp., 
    889 F.3d 956
    , 963
    (9th Cir. 2018). We may affirm on any basis supported by the record, “even if the
    district court relied on the wrong grounds or wrong reasoning.” Muniz v. United
    Parcel Serv., Inc., 
    738 F.3d 214
    , 219 (9th Cir. 2013) (quoting Cigna Prop. & Cas.
    Ins. Co. v. Polaris Pictures Corp., 
    159 F.3d 412
    , 418 (9th Cir. 1998)). Because the
    2
    FTCA does not provide us any jurisdiction over misrepresentation claims, we
    affirm.
    Lee relies on the FTCA as the jurisdictional basis for each of his claims. The
    FTCA, however, is a limited waiver of the United States’s sovereign
    immunity. And under the FTCA, the United States is immune from “[a]ny claim
    arising out of . . . misrepresentation,” 28 U.S.C. 2680(h), including both negligent
    and willful misrepresentation, United States v. Neustadt, 
    366 U.S. 696
    , 702
    (1961). To determine whether a claim is one for misrepresentation, we must look
    through to the substance of the allegations. See Mt. Homes, Inc. v. United States,
    
    912 F.2d 352
    , 355 (9th Cir. 1990). Here, each of Lee’s claims hinges on two
    essential facts: (1) the second right-to-sue letter purported to restart the filing
    deadline; and, (2) it did not restart the deadline. In other words, Lee’s alleged
    injuries “are entirely the result of allegedly inaccurate information provided by the
    [EEOC.]”1 Pauly v. U.S. Dep’t of Agric., 
    348 F.3d 1143
    , 1151 (9th Cir. 2003). And
    those types of “tort claims are barred by section 2680(h).” Id.; see also Mt. Homes,
    Inc., 
    912 F.2d at 356
    .
    AFFIRMED.
    1
    Because Lee’s negligent supervision claim hinges on the same underlying tort, it fails for the
    same reason.
    3