* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 notmaterially 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 ar gument. Plaintiffs-Appellants seek reversal of an order of the district court dismissing their Federal Tort Claims Act suit again st the United States. Plaintiffs filed suit in the district court alleging the gover nment committed negligent and-2-

wrongful acts which caused them psychological, fina ncial, and professional harm. Defendant filed a motion to dismiss which alleged t hat Plaintiffs failed to establish jurisdiction and that they failed to stat e a claim upon which relief may be granted. The district court, adopting the recom mendation of the magistrate judge, accepted both of Defendant’s arguments suppo rting dismissal of the case pursuant to Federal Rule of Civil Procedure 12(b). The district court determined that Plaintiffs’ claims fell under the exceptions t o the waiver of sovereign immunity provided by the Federal Tort Claims Act [F TCA] and that they were also barred by the applicable statute of limitation s. 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 ge nerally 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 cir cumstances. See 28 U.S.C. § 2674. However, the FTCA includes exceptions to thi s waiver, establishing circumstances under which sovereign immunity is notwaived. See 28 U.S.C. § 2680(h). Section 2680(h) excepts from the waiver o f sovereign immunity “[a]ny claim arising out of . . . misrepresentation, decei t, 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 mi srepresentations 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 properlydismissed pursuant to Federal Rule of Civil Procedure 12(b)(1), we do notaddress the district court’s determination that Plaintiffs’ claims were barred b y the applicable statute of limitations. AFFIRMED. Entered for the Court

Monroe G. McKay Circuit Judge