Kevin Abbey, et al. v. United States, et al.

Petitioners are active and former San Francisco Police Department employees and their family members. They suffer from cancer and numerous ailments caused by exposure to toxic and radioactive materials the government knowingly released at a Naval shipyard in San Francisco Bay. Petitioners sued the government for negligence. In the decision below, the Ninth Circuit held that all the Petitioners lack subject matter jurisdiction for all their claims under the Federal Tort Claims Act (FTCA), which waives the federal government’s sovereign immunity from civil tort actions but excludes from that waiver claims “arising out of” various intentional torts including “misrepresentation.” 28 U.S.C. §§ 1346(b)(1), 2680(h). The question presented is: Whether Petitioners’ negligence claims “aris[e] out of … misrepresentation,” and thus are barred by section 2680(h) of the FTCA, even though Petitioners did not personally rely on an alleged misrepresentation. (I)