UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VINCENT SCOTT RUSS; EMILY L. 

RUSS, Wife of Vincent Scott Russ,

Plaintiffs-Appellants,  No. 01-1397

v.

UNITED STATES OF AMERICA,

Defendant-Appellee. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Frank W. Bullock, Jr., District Judge.

(CA-99-488-1)

Argued: February 25, 2002

Decided: April 12, 2002

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and

Raymond A. JACKSON, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: John Francis Bloss, Sr., CLARK, BLOSS & MCIVER,

P.L.L.C., Greensboro, North Carolina, for Appellants. Lynne P.

Klauer, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Benjamin H. White, Jr., United States

Attorney, Greensboro, North Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Plaintiff Vincent Scott Russ and his wife, Emily Russ, contend that

the United States is liable under the Federal Tort Claims Act

("FTCA"), 28 U.S.C. § 1346(b), 2671-80, for injuries Russ sustained

when the wheelchair ramp built at his home with federal grant money

collapsed. The district court concluded that the United States had not

waived its sovereign immunity and dismissed the case. Because we

agree that the alleged negligence falls within the misrepresentation

exception of the FTCA, we affirm. 

I.

Plaintiff Vincent Scott Russ ("Russ") is a disabled veteran who

applied for and received a $4,100 grant for a wheelchair ramp for his

home under the Home Improvement and Structural Alteration

("HISA") program, which is directed by the Department of Veterans

Affairs ("VA"). When Russ applied for the HISA grant, he was given

a list of contractors. On the application he signed, he choose Michael

Russell Construction Company ("Russell") to build the ramp. However, Russell did not perform the work properly. And on August 3,

1997, as Russ was walking down the ramp, the ramp caved in and

Russ fell off. As a result, Russ suffered painful, permanent injuries to

his pelvis, shoulder, hand, and back. 

Russ alleges that a VA employee, Dwight Fields, told him that if

he selected Russell to perform the work on his home, he would not

have to solicit other bids. Russ further contends that Fields said he

knew Michael Russell, that Russell had performed many jobs for the

VA, and that Russ’ application would be approved immediately if he

chose Russell. Russ argues that Fields "gratuitously selected" Russell

for the project by promising this "instant" approval and failed to use

due care in selecting Russell. Russ contends that had he known cer2 RUSS v. UNITED STATES
tain facts, for example that Russell was not a licensed contractor in

North Carolina, he would not have chosen him. Russ and his wife,

Emily, (collectively "plaintiffs") filed suit against the United States

for negligence under the FTCA. Russ sought damages for his injuries,

while Emily Russ sought recovery for loss of consortium under North

Carolina law. 

The United States denied the allegations and moved for summary

judgment on both claims, alleging that the claims were actually for

misrepresentation and were excluded from the FTCA’s waiver of sovereign immunity. The district court concluded that despite plaintiffs’

attempts to characterize their claims as being based on simple negligence, they were essentially based on a misrepresentation. Russ v.

United States, 129 F. Supp. 2d 905, 910 (M.D.N.C. 2001). The district court explained that "[t]he Government’s failure to use due care

in communicating information to Vincent Scott Russ is directly

related to Plaintiffs’ injuries. The Government’s misrepresentations

are integral to Plaintiffs’ claims and are not merely incidental to other

negligent conduct." Id. The court held that the claims fell within the

misrepresentation exception of the FTCA. See 28 U.S.C. § 2680(h).

Accordingly, the district court granted the United States’ motion for

summary judgment and dismissed the case for lack of subject matter

jurisdiction. Russ, 129 F. Supp. 2d at 911. 

II.

Plaintiffs contend that they allege negligence, not misrepresentation, and that the United States has waived its sovereign immunity in

this case. However, we agree with the district court that, "the gravamen of [plaintiffs’] action is misrepresentation." Russ, 129 F. Supp at

910. After having read the briefs and listened to oral argument, we

conclude that the district court correctly decided the case before it.

Accordingly, we affirm the judgment. 

AFFIRMED

RUSS v. UNITED STATES 3