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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 13 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MALCOLM SALDANHA, No. 25-3890 D.C. No.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. 2 25-3890 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. 3 25-3890 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. 5 25-3890