NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAM LEE,
Plaintiff

- Appellant,

v. UNITED STATES OF AMERICA; UNITED STATES OF AMERICA EX REL UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Defendants

- Appellees. No. 20

- 16722
D.C. No. 2:20

- cv - 00498

- JCM

- BNW

MEMORANDUM *

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 S tates Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 

# FILED

SEP 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

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 an d 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 f or 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 Fed eral 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. Un ited
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 the3

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 Agri c
. , 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.