concurring in part and dissenting in part.
I concur with my colleagues that the district court’s dismissal of Bawol Cabiri’s breach of contract claim should be reversed. I cannot agree, however, with their handling of Efua Cabiri’s claim for the infliction upon her of mental and emotional distress.
The infliction of mental or emotional distress is a separate and distinct tort, not to be confused with other more commonly known torts. See Long v. Beneficial Finance Co. of New York, Inc., 39 A.D.2d 11, 14, 330 N.Y.S.2d 664 (1972); Restatement (Second) of Torts § 46 cmt. (b)(1965). It is not a “claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights,” with respect to which a foreign state still can claim immunity from liability under 28 U.S.C. § 1605(a)(5)(B). See Gross v. United States, 676 F.2d 295, 304 (8th Cir.1982).
The House Report referred to by my colleagues, supra, at 199, provides in part as follows:
The purpose of section 1605(a)(5) is to permit the victim of a traffic accident or other noncommercial tort to maintain an action against the foreign state to the extent otherwise provided by law. (emphasis supplied)
Under the heading “The Non-Commercial Tort Exception,” (supra, at 199), my colleagues correctly cite “misrepresentation” and “deceit” as actions against which a foreign state may continue to claim immunity. They then state that “the wrongful acts alleged to have caused [Efua’s] injury are misrepresentations made to Efua Cabiri concerning her husband’s whereabouts.” (supra, at 200). Ergo, they conclude, Ghana was entitled to immunity from Efua’s claim. I disagree.
The fallacy in this reasoning is that claims for misrepresentation and deceit generally are limited to actions which involve commercial decisions predicated on incorrect or incomplete information. See Block v. Neal, 460 U.S. 289, 296 n. 5, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983)(citing United States v. Neustadt, 366 U.S. 696, 711 n. 26, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961)); Kohn v. United States, 680 F.2d 922, 926 (2d Cir.1982); Salter v. United States, 853 F.Supp. 389, 394 (M.D.Ala.1994). This limitation accords with the traditional interpretation of actions based on misrepresentation and deceit, which require a showing of tangible or pecuniary loss. See, e.g., Cumberland Oil Corp. v. Thropp, 791 F.2d 1037, 1043-45 (2d Cir.1986), cert. denied, 479 U.S. 950, 107 S.Ct. 436, 93 L.Ed.2d 385 (1986); Day v. Avery, 548 F.2d 1018, 1029 (D.C. Cir.1976), cert. denied, 431 U.S. 908, 97 S.Ct. 1706, 52 L.Ed.2d 394 (1977); Leung v. Lotus Ride, Inc., 198 A.D.2d 155, 156 (N.Y.1993); Urtz v. New York Central and Hudson River Railroad, 202 N.Y. 170, 173, 95 N.E. 711 (1911); 37 C. J.S. Fraud § 52.
The above-mentioned House Report also states:
*204The exceptions provided in subpara-graphs (A) and (B) of section 1605(a)(5) correspond to many of the claims with respect to which the U.S. Government retains immunity under the Federal Tort Claims Act, 28 U.S.C. § 2680(a) and (h).
Indeed, the pertinent immunity provisions of § 2680(h) are identical with those of § 1605; i.e., “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights.”
I deem it significant that five Circuits, including the Second, see Kohn, supra, have held that claims based on the intentional infliction of emotional distress do not fall within the definition of torts listed in the above-quoted section 2680(h). See Truman v. United States, 26 F.3d 592, 596-97 (5th Cir.1994). I believe, therefore, that they do not fall within the definitions of torts listed in 28 U.S.C. § 1605(a)(5)(B).
The district court avoided this issue by stating that “[e]ven those allegations asserted by Mrs. Cabiri, stating that she was subjected to mental abuse when she was refused information about her husband, involve alleged conduct of Ghanian official acting in Ghana.” 981 F.Supp. at 132. Apparently, the district court was confusing wrongs against Bawol, which did take place in Ghana, with the wrong against Efua, which took place in the United States. My colleagues,. however, address the matter directly by holding that “Efua Cibiri’s claim for intentional infliction of emotional distress is outside the FSIA’s exception for noncommercial torts committed in the United States.” Supra, 981 F.Supp. at 195. They say:
Ghana enjoys immunity as to this claim— for emotional injury caused by the refusal of a foreign state, however nefarious, to give its citizens in the United States full or truthful information concerning its operations. The FSIA is not an enforcement mechanism for global freedom of information. Supra, 981 F.Supp. at 199.
This, I suggest, is not a correct statement of the issue now before us and the law pertinent to that issue.
The real issue, as I see it, is whether the refusal of Ghana representatives to give the worried and distressed Efua any information about her missing husband constituted sufficiently extreme and outrageous conduct to bring it within the ban of emotional distress causation. I am not satisfied that this issue can be decided justly in the instant case by way of a Rule 12(b)(1) motion. See Spencer v. Casavilla, 903 F.2d 171, 173 (2d Cir.1990).
I would permit Efua to go to trial with her husband.