*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 14 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MALCOLM F. DUVALL and

ELEANOR J. DUVALL, 

Plaintiffs - Appellants, No. 98-4019

v. (D.C. No. 97-CV-02-S)

UNITED STATES OF AMERICA, (D. Utah)

Defendant - Appellee.

 

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

Plaintiffs-Appellants seek reversal of an order of the district court

dismissing their Federal Tort Claims Act suit against the United States. Plaintiffs

filed suit in the district court alleging the government committed negligent and
-2-

wrongful acts which caused them psychological, financial, and professional harm. 

Defendant filed a motion to dismiss which alleged that Plaintiffs failed to

establish jurisdiction and that they failed to state a claim upon which relief may

be granted. The district court, adopting the recommendation of the magistrate

judge, accepted both of Defendant’s arguments supporting dismissal of the case

pursuant to Federal Rule of Civil Procedure 12(b). The district court determined

that Plaintiffs’ claims fell under the exceptions to the waiver of sovereign

immunity provided by the Federal Tort Claims Act [FTCA] and that they were

also barred by the applicable statute of limitations. 

We review de novo a district court’s decision to dismiss a cause of action

for failure to state a claim upon which relief can be granted. See Chemical

Weapons Working Group, Inc. v. United States Dep’t of the Army, 111 F.3d

1485, 1490 (10th Cir. 1997). The federal courts generally do not have

jurisdiction over claims where the United States is a defendant because the United

States is entitled to sovereign immunity from suit. The FTCA waives the United

States’ sovereign immunity from suit in certain circumstances. See 28 U.S.C. §

2674. However, the FTCA includes exceptions to this waiver, establishing

circumstances under which sovereign immunity is not waived. See 28 U.S.C. §

2680(h). Section 2680(h) excepts from the waiver of sovereign immunity “[a]ny

claim arising out of . . . misrepresentation, deceit, or interference with contract
-3-

rights.” Id. We agree with the district court that Plaintiffs assert claims arising

from an alleged breach of contract and negligent misrepresentations made by

government employees. We hold their complaint was properly dismissed pursuant

to Federal Rule of Civil Procedure 12(b)(1).

Because we hold that Plaintiffs’ claim was properly dismissed pursuant to

Federal Rule of Civil Procedure 12(b)(1), we do not address the district court’s

determination that Plaintiffs’ claims were barred by the applicable statute of

limitations.

AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge