Saks Inc v. USA, et al

* 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this opinion should not be published and is not precedent except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
F I L E D
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

-- 1 of 4 --

No. 06-60379
-2-
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

-- 2 of 4 --

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.”).

-- 3 of 4 --

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.

-- 4 of 4 --