Saldanha v. United States
CourtCourt of Appeals for the Ninth Circuit
Date FiledNovember 13, 2026
Docket25-3890
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 13 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MALCOLM SALDANHA, No. 25-3890
D.C. No.
Plaintiff - Appellant, 2:24-cv-09968-SVW-AJR
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted October 28, 2026
Pasadena, California
Before: OWENS, SANCHEZ, and TUNG, Circuit Judges.
Plaintiff Malcolm Saldanha, a former civilian employee of the United States
Department of the Navy, appeals the district court’s order granting the
Government’s motion to dismiss for lack of jurisdiction under the Federal Tort
Claims Act’s (“FTCA”) misrepresentation exception. See 28 U.S.C. § 2680(h).
Because Plaintiff’s claim arises out of a governmental misrepresentation, we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
affirm.
We review de novo an order dismissing suit under the FTCA for lack of
subject matter jurisdiction. Leuthauser v. United States, 71 F.4th 1189, 1193
(9th Cir. 2023). If the United States has not waived sovereign immunity for a
claim, courts lack subject matter jurisdiction over the action. Esquivel v. United
States, 21 F.4th 565, 572–73 (9th Cir. 2021). Under the FTCA, the United States
has waived immunity to a set of tort claims, see 28 U.S.C. § 1346(b)(1), but
excluded from that waiver “[a]ny claim arising out of . . . misrepresentation,”
id. § 2680(h). Section 2680(h) covers “claims arising out of negligent, as well as
willful, misrepresentation.” United States v. Neustadt, 366 U.S. 696, 702 (1961).
Plaintiff contends he retired after receiving erroneous reports from
Department human resources specialists projecting his monthly annuities. After
retiring, the Office of Personnel Management determined that he was eligible to
receive monthly retirement benefits substantially lower than what Department
specialists had estimated and conveyed to him. Although the Government made a
significant error that had severe consequences for a federal employee who had
served the Navy for multiple decades, the district court correctly determined that it
lacked subject matter jurisdiction.
Plaintiff’s claim falls within the misrepresentation exception under our broad
reading of § 2680(h). See Abbey v. United States, 112 F.4th 1141, 1149 (9th Cir.
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2024), cert. denied, 145 S. Ct. 1889 (2025) (“[O]ur circuit has taken a broad view
of the FTCA’s misrepresentation exception . . . .”). “[S]ection 2680(h) does not
merely preclude claims for misrepresentation.” Id. at 1146. “Rather, it bars any
claim ‘arising out of’ misrepresentation.” Id. We have “generally given ‘arising
out of’ or ‘arising from’ . . . a broad construction in other statutory contexts.” Id.
“‘[A]rising out of’ generally means ‘originating from,’ ‘growing out of,’ or
‘incident to, or having connection with.’” Id. (citation modified). Thus, a claim is
barred under the misrepresentation exception “if its ‘gravamen’ or ‘essence’ is the
government's communication of false information.” Id.
Plaintiff’s claim clearly “arises out of” the Government’s misrepresentation.
Plaintiff was only harmed because he received inaccurate information from
governmental employees that led him to retire earlier than he otherwise would
have. Had the employees performed the negligent calculation but never conveyed
it, Plaintiff acknowledges he would not have chosen to retire nor suffered the
consequences of that decision. See Block v. Neal, 460 U.S. 289, 296 (1983)
(“[T]he essence of an action for misrepresentation, whether negligent or
intentional, is the communication of misinformation on which the recipient
relies.”). The harm therefore originated from, grew out of, and was incident to or
connected with the Government’s misrepresentation. See Abbey, 112 F.4th at
1146.
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The Government’s misrepresentation was not merely “collaterally
involved.” Mundy v. United States, 983 F.2d 950, 953 (9th Cir. 1993). In Mundy,
we found a misrepresentation was only collaterally involved when the Government
had negligently and wrongly denied the plaintiff’s security clearance and
communicated that result to his civilian employer, which terminated him. Id. at
951–52. The center of the claim in Mundy was the negligent processing of the
plaintiff’s security clearance, which resulted in its denial. Id. at 952. Here,
however, Plaintiff does not allege that he was granted an incorrect total of monthly
annuity payments. Instead, a federal government employee mistakenly represented
that Plaintiff would receive a larger monthly retirement benefit.1 The essence of
the claim here is the misrepresentation. See also Neustadt, 366 U.S. at 698–701
(applying the misrepresentation exception where a government employee
negligently completed a task, inaccurate information based on that negligent task
was conveyed to the plaintiff, and the plaintiff detrimentally relied on the
information to make a consequential decision).
Plaintiff’s contention that the inaccurate information was “a truthful
conveyance of the flawed calculation” does not alter our analysis. Section 2680(h)
covers both intentional and negligent misrepresentation. See id. at 702. By
1
The email and report communicating Plaintiff’s expected benefits stated that the
figures were an “estimate,” and did not “represent actual amounts.”
4 25-3890
definition, a negligent misrepresentation is the conveyance of inaccurate
information believed to be accurate. Nor is Plaintiff’s reliance on Block an apt
comparison. As we have explained, in “Block . . . there was an injury absent the
miscommunication.” Mt. Homes, Inc. v. United States, 912 F.2d 352, 356 (9th Cir.
1990). Here there is none.
This appeal arises out of unfortunate circumstances caused by the federal
government’s negligent misrepresentation of important information to Plaintiff.
Nonetheless, the district court was correct that § 2680(h) applies to Plaintiff’s
claim.
AFFIRMED.
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