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October 2, 1992 [NOT FOR PUBLICATION]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 &
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Kominsky, were on brief for appellants.
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Mark W. Pennak, with whom Stuart M. Gerson, Assistant
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Attorney General, and Richard S. Cohen, United States Attorney,
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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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