Jerrad Robinson v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 24-2634
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Jerrad Robinson
Plaintiff - Appellant
v.
United States of America
Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: May 14, 2025
Filed: June 13, 2025
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Before BENTON, KELLY, and GRASZ, Circuit Judges.
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BENTON, Circuit Judge.
A Federal Aviation Administration employee told Jerrad Lee Robinson that if
he retired, he had enough creditable federal service to qualify for a monthly annuity
of $6,273. After he retired, the Office of Personnel Management (OPM) determined
he was entitled to only $5,319. Robinson sued, alleging the FAA was negligent

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under the Federal Tort Claims Act. The district court1 dismissed the complaint.
Robinson appeals. Having jurisdiction under 28 U.S.C. §1291, this court affirms.
Beginning in 1997, Robinson worked as a federal air traffic controller for over
20 years. Before joining the FAA, Robinson was on active duty with the United
States Army, and then both active and inactive service with the Air National Guard.
In 2000 and 2017, Robinson paid military-service deposits to the FAA,
believing that his active-duty time and all his National Guard time would earn
federal-service credit under the Federal Employees Retirement System (FERS). The
application for the credit warned him that “payment of this deposit” would not make
his “military service creditable if it is otherwise not creditable under FERS.”
Robinson applied for retirement in 2018. In response, an FAA employee
issued him a Certified Summary of Federal Service (CSFS), crediting him with 27
years, 1 month, and 16 days of federal service—including 6 years and 2 days of
military service.
Relying on the FAA’s communication, Robinson retired. By the FAA’s
calculation, he would have been entitled to a monthly annuity payment of $6,273.
About nine months after Robinson’s retirement, OPM reviewed his
application. OPM determined that the FAA employee mistakenly counted all his
National Guard service as creditable federal service, when only about four months
qualified under FERS. After administrative appeals, OPM concluded that
Robinson’s monthly annuity was only $5,319.
Robinson sued under the FTCA for the FAA’s negligent communication
about his creditable federal service. He seeks to recover the difference between the
1 The Honorable Patrick J. Schiltz, Chief Judge, United States District Court
for the District of Minnesota.

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larger annuity he expected and the smaller sum he is receiving. The district court
dismissed the complaint.
This court reviews de novo dismissals for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1), “placing the burden of proving the
existence of subject matter jurisdiction on the plaintiff.” Green Acres Enters., Inc.
v. United States, 418 F.3d 852, 856 (8th Cir. 2005). This court may look outside the
pleadings to determine the threshold question of jurisdiction. Id. “If the district
court relies on its own determination of disputed factual issues, we review those
findings under the clearly erroneous standard.” Buckler v. United States, 919 F.3d
1038, 1044 (8th Cir. 2019) (cleaned up).
The FTCA “was designed primarily to remove the sovereign immunity of the
United States from suits in tort.” Millbrook v. United States, 569 U.S. 50, 52 (2013).
Through the Act, federal district courts have exclusive jurisdiction over claims
against the United States for “injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission” of a federal employee “acting
within the scope of his office or employment.” Id., quoting 28 U.S.C. § 1346(b)(1).
The waiver, while broad, has several exceptions. Relevant here, an exception for
intentional torts preserves the government’s immunity from suit for “[a]ny claim
arising out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.” 28 U.S.C. § 2680(h) (emphasis added).
Section 2680(h) “relieves the Government of tort liability for pecuniary
injuries which are wholly attributable to reliance on the Government’s negligent
misstatements.” Block v. Neal, 460 U.S. 289, 297 (1983) (preserving “sovereign
immunity with respect to a broad range of government actions”). But the statute
“does not bar negligence actions which focus not on the Government’s failure to use
due care in communicating information, but rather on the Government’s breach of a
different duty.” Id. Application of the misrepresentation exception thus turns on
what caused Robinson’s injury.

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Robinson argues that the district court erred in dismissing his negligence
action under the FTCA because it misapplied the misrepresentation exception in 28
U.S.C. § 2680(h). The gravamen of Robinson’s claim is that the FAA’s relevant
negligence was not in its communication to him, but in the miscalculation of his
creditable military service time. He asserts that the FAA’s duty to use reasonable
care in calculating his creditable service time is “distinct from any duty to use due
care in communicating information to him.”
Focusing on two cases, Robinson asserts that the “focal point of [his] claim is
the operational negligence by the FAA and [its employee] in processing Robinson’s
retirement and the communication to Robinson was merely collateral to such
performance.” See Appley Bros. v. United States, 7 F.3d 720 (8th Cir. 1993); Saraw
Partnership v. United States, 67 F.3d 567 (5th Cir. 1995). These cases do not help
him. In Appley Bros., a case about USDA examiners and a grain operation, this
court found that the USDA’s negligent inspection of a warehouse—not an
examiner’s communication of information—harmed plaintiffs. See Appley Bros., 7
F.3d at 728 (“The U.S.D.A.’s failure to discover violations of the Warehouse Act is
independent of the inspectors communication of information.”). In Saraw, a
Veterans Administration employee’s negligent keystroke while processing a loan
allowed the loan to fall into arrears. The Fifth Circuit held that the misrepresentation
exception did not bar suing the VA because the focal point of the case was the
negligent keystroke entry. See Saraw Partnership, 67 F.3d at 571 (“Where there is
no detrimental reliance on an alleged miscommunication, no claim for
misrepresentation is made.”). In both cases, the key is “the Government’s breach of
a different duty.” See Block, 460 U.S. at 297 (holding that a homeowner’s suit
against the Farmers Home Administration was not barred by the misrepresentation
exception because “FmHA’s duty to use due care” in ensuring builders cured all
defects “is distinct from any duty to use due care in communicating information to
respondent”). By contrast, when, as here, the “gist of the claim” lies in the
negligence underlying a misrepresentation—the exception applies. See United
States v. Neustadt, 366 U.S. 696, 711 (1961) (rejecting the Fourth Circuit’s assertion

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“that the Government owed respondents a ‘specific duty’ to make and communicate
an accurate appraisal of the property” because, in passing the National Housing Act,
Congress did not intend to “suspend the application of the ‘misrepresentation’
exception of the Tort Claims Act”); Hamre v. United States, 799 F.2d 455, 457 (8th
Cir. 1986) (rejecting appellant’s negligence claim because “[h]ere, as
in Neustadt, any injury sustained by the appellants was proximately caused by their
reliance upon representations made by the government appraiser”).
Robinson’s argument fails. The FAA’s negligence in miscalculating his
creditable service, on its own, did not cause him any harm. The real claim—that the
FAA communicated erroneous information, and he relied on it—is the basis for his
complaint. Where a plaintiff’s injuries are caused by reliance on the
misrepresentations of officials, and the plaintiff would not have been injured
otherwise, the misrepresentation exception applies. Neustadt, 366 U.S. at 711
(finding that respondents’ claim “arising out of misrepresentation” within the
meaning of § 2680(h) “is not actionable against the Government under the Tort
Claims Act”); Bonuchi v. United States, 827 F.2d 377, 380 (8th Cir. 1987) (finding
that the plaintiff has “alleged no injury that they would have suffered independently
of their reliance on the [error]”).
In sum, Robinson asserts that if he had not relied on the FAA’s representations
about his creditable service, he would not have retired when he did. It was because
the FAA communicated erroneous information that Robinson suffered an injury. In
the district court’s words: “No communication, no injury.”
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The judgment is affirmed.
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