Jha v. Secretary, U.S. Department of State

Filing 12

Judge Richard G. Stearns: ORDER entered granting 7 Motion to Dismiss (RGS, law2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-11795-RGS
SACHCHIDANAND JHA
v.
SECRETARY, U.S. DEPARTMENT OF STATE
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO DISMISS
April 22, 2011
STEARNS, D.J.
This case is a negligence action brought under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 2671-2680. The plaintiff, Sachchidanand Jha, is a citizen of
India who was legally living and working in Massachusetts in 2008. On April 22,
2008, the U.S. Citizenship and Immigration Service approved O1 visa status for Jha,
which he was required to activate by September 1, 2008. To activate his status, Jha
had to appear personally at a U.S. Embassy or Consulate. Compl. ¶ 4. He decided to
go to the U.S. Consulate in Montreal, Canada. Id. ¶ 5.
On June 12, 2008, Jha created a profile on NVARS, the website for visa
appointments in Canada.1 Id. Jha visited the NVARS website appointment calendar

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In 2008, NVARS was maintained by Nucomm International, an independent
contractor. Johnson Decl. ¶ 2.

many times in June of 2008, but each time he found that no appointments were
available. Compl. ¶ 7. On July 9, 2008, Jha’s visa sponsor wrote to NVARS
requesting an appointment for Jha on any day from August 25, 2008, to August 27,
2008. Id. ¶ 9. Neither Jha nor his sponsor received a response from NVARS, but a
few days later, on the NVARS website appointment calendar, the message
“appointments reserved” appeared for August 27, 2008. Jha understood this message
to mean that he had been granted an appointment for August 27, 2008. Id. ¶ 10. On
July 21, 2008, Jha wrote to NVARS, stating that he thought that he had an appointment
for August 27, 2008, but the computer system would not allow him to pay the NVARS
fee. In response, Jha received an unsigned message directing him to the website for the
U.S. Consulate in Montreal. He visited the website, but did not find an answer to his
question. Id. ¶ 11.
On August 27, 2008, Jha traveled to the U.S. Consulate in Montreal. Id. ¶ 12.
At the Consulate, Jha was informed that he did not have an appointment, and his
requests for an emergency appointment were denied. Id. ¶¶ 13-14. Consequently, Jha
had to travel to India to activate his O1 visa. Id. ¶ 15. Because he missed the start of
the fall term, he lost his teaching position at the University of Massachusetts-Boston
and the related health insurance. Id. ¶ 16. In June of 2010, Jha filed an administrative
tort claim for $15,872, reflecting travel costs, visa fees, and compensation for the six2

month loss of employment and health insurance. Id. ¶ 18. The claim was denied on
June 28, 2010. Id. ¶ 19.
On October 15, 2010, Jha timely filed this action, claiming that the government2
acted negligently in “provid[ing] misleading information about the [visa] interview,”
which he relied on to his detriment. Id. ¶ 18. On March 31, 2011, the government filed
a motion to dismiss for lack of subject matter jurisdiction. The motion to dismiss will
be allowed.
The court agrees with the government’s argument that Jha’s claim is fairly read
as one for negligent misrepresentation, which is not actionable under the FTCA. In his
Complaint, Jha alleges that the U.S. Consulate in Montreal was “negligent” and “had
no authority to provide misleading information about the interview.” Id. He claims that
he “had to incur substantial expense, bear physical strain, and suffer emotional distress
as a result of the misleading message from the U.S. Consulate, Montreal about [his]
visa appointment.” Id. See Block v. Neal, 460 U.S. 289, 296 (1983) (“[T]he essence
of an action for misrepresentation, whether negligent or intentional, is the

2

The government correctly notes that the only proper defendant in an FTCA
action is the United States. See 28 U.S.C. § 2679(b)(1); McCloskey v. Mueller, 446
F.3d 262, 266 (1st Cir. 2006); Roman v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000).
Jha could amend his Complaint to substitute the United States as the defendant (in
place of the Secretary of State); however, the point is moot because Jha’s Complaint
fails on substantive grounds.
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communication of misinformation on which the recipient relies.”).
“Because the FTCA is a waiver of sovereign immunity, it is strictly construed.”
Cascone v. United States, 370 F.3d 95 (1st Cir. 2004), citing Skwira v. United States,
344 F.3d 64, 73-74 (1st Cir. 2003). Claims based on misrepresentation, including
negligent misrepresentation, are excluded from the FTCA’s limited waiver of sovereign
immunity. See 28 U.S.C. 2680(h); United States v. Neustadt, 366 U.S. 696, 701-702
(1961); Muniz-Rivera v. United States, 326 F.3d 8, 13 (1st Cir. 2003). Jha’s claim for
negligent misrepresentation is thus not actionable under the FTCA.
ORDER
Defendant’s Motion to Dismiss is ALLOWED pursuant to Fed. R. Civ. P.
12(b)(1). The Clerk will enter an order of dismissal and close the case.

SO ORDERED.
/s/ Richard G. Stearns
________________________________
UNITED STATES DISTRICT JUDGE

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