roof for the house. The Kohlers complied with this condition and the matter then went to settlement. The plaintiff has been experiencing difficulties with a leaky roof since shortly after the settlement.
The Government has filed a motion for summary judgment urging two reasons in support thereof: (1) "Plaintiff's complaint fails to state a claim upon which relief can be granted" and (2) "There exists no genuine issue of material fact and Defendant is entitled to judgment as a matter of law." The Government's motion will be treated as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The motion to dismiss will be granted for the following reasons: (1) The Federal Tort Claims Act does not include actions based upon negligent misrepresentation or deceit, (2) In the event plaintiff's allegations against the Veterans Administration were determined to come within the purview of the Federal Tort Claims Act, the plaintiff has not exhausted his administrative remedies as required by the Act, and (3) 38 U.S.C. § 1827, if applicable, precludes judicial review.
Pro se complaints are held to less stringent requirements than are formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-521, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1971); Fischer v. Cahill, 474 F.2d 991, 993 (3d Cir. 1973); United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1201 (3d Cir. 1973); Marshall v. Brierley, 461 F.2d 929, 930 (3d Cir. 1972). A most sympathetic reading of the plaintiff's allegation is that the Veterans Administration was negligent in failing to discover faulty workmanship in the new roof, which it required as a condition for granting a Veterans Administration mortgage guarantee on the home purchased by the plaintiff. The plaintiff's allegations amount to a claim that his reliance upon the misrepresentation made by the Veterans Administration Inspector caused him damage.
United States v. Neustadt, 366 U.S. 696, 6 L. Ed. 2d 614, 81 S. Ct. 1294 (1961), points out that recovery is prohibited under § 2680(h) of the Federal Tort Claims Act for any claim against the United States arising out of misrepresentation or deceit,
and holds that a plaintiff may not maintain an action based upon a negligent inspection since such an interpretation amounts to circumvention of § 2680(h). In Neustadt, the Supreme Court stated:
To say, as the Fourth Circuit did, that a claim arises out of "negligence," rather than "misrepresentation," when the loss suffered by the injured party is caused by the breach of a "specific duty" owed by the Government to him, i.e., the duty to use due care in obtaining and communicating information upon which that party may reasonably be expected to rely in the conduct of his economic affairs, is only to state the traditional and commonly understood legal definition of the tort of "negligent misrepresentation, " . . . .