* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 15, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60379

Summary Calendar

SAKS, INC.,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA, et al.,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:05-CV-00019-HTW-JCS

--------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant, Saks, Inc., sued the United States of

America under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §

1346 and § 2671. Saks claimed that the United States was liable

because of its failure to supervise a United States postal

employee, Ray Tommy Barnes, who conspired with a Saks employee,

Henry Earl Johnson, to effectuate a scheme to divert money from

Saks. Under this scheme, when Saks entrusted company checks to

Johnson to prepay its postal account, Johnson delivered the checks

to Barnes. Barnes, in turn, applied only a portion of the money to
No. 06-60379

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the prepaid postal account; the remainder flowed to Johnson and

Barnes. According to Saks, the United States was negligent in its

supervision of Barnes, as it failed to account for the lost money

in its internal audits or day-to-day tallies on incoming funds.

Further, it posits, the United States, “in effect sponsored the

conversion of its customer’s funds.” 

After Saks filed suit in district court, the United States

moved to dismiss the claim based on Rule 12(b)(1) of the Federal

Rules of Civil Procedure, i.e., that the district court lacked

subject matter jurisdiction over the suit. Namely, the United

States asserted that the suit fell within the exception to the

FTCA’s waiver of sovereign immunity for “any claim arising out of

misrepresentation.” 28 U.S.C. § 2680(h). The district court

granted the defendant’s motion. We review the dismissal of a

complaint under 2680(h) de novo. Truman v. United States, 26 F.3d

592, 593 (5th Cir. 1994).

Under the doctrine of sovereign immunity, one may not sue the

United States without its permission. United States v. Mitchell,

463 U.S. 206, 212 (1983); the existence of consent is a

prerequisite for jurisdiction. U.S. v. Navajo Nation, 537 U.S. 488

(2003). Waivers of sovereign immunity should be strictly

construed, and we must resolve all ambiguities in favor of the

sovereign. U.S. Dep’t of Energy v. Ohio, 503 U.S. 607 (1992).

The FTCA constitutes a limited waiver of sovereign immunity.

United States v. Orleans, 425 U.S. 807, 813 (1976). The waiver is
No. 06-60379

-3-

limited in that Congress has carved out exceptions, i.e., it has

declared that the United States’ sovereign immunity is still

preserved as to certain torts. Dolan v. U.S. Postal Service, 126

S.Ct. 1252, 1256 (2006). Some such tort claims that are excepted

are those “arising out of misrepresentation or deceit.” See 28

U.S.C. § 2680(h)(emphasis added). 

The ultimate question in this case is whether Saks’ claim

against the United States “arises out of misrepresentation or

deceit.” We find that it does and therefore is excepted from the

FTCA’s waiver of sovereign immunity. Although Saks frames its

claim as one of negligent supervision and training, its claim

arises out of the misrepresentation and deceit of Barnes. See

United States v. Shearer, 473 U.S. 52, 55-56 (explaining that

2680(h) bars not only claims for intentional torts but also claims

for negligence of government employees in facilitating or not

preventing them)(plurality); Leleux v. United States, 178 F.3d 750,

756-59 (5th Cir. 1999)(the government’s failure to prevent

plaintiff’s injury was not sufficiently distinct from the

intentional tort at issue and therefore, arose out it). See also

Bor-Son Bldg. Corp. v. Heller, 572 F.2d 174, 178 (8th Cir.

1978)(“Even if a claim purports to be grounded in theories other

than misrepresentation, the exception set out in 28 U.S.C. §

2680(h) bars the action if deceit or misrepresentation is a factor

relied upon to maintain the suit.”). 
No. 06-60379

-4-

Because this claim is excepted from the waiver of sovereign

immunity, it is barred, and the district court correctly dismissed

it for lack of subject matter jurisdiction. Atorie Air, Inc. v.

F.A.A. of U.S. Dept. of Transp., 942 F.2d 954, 958 (1991).

Therefore, we affirm the judgment of the district court.