Can a plaintiff bring a claim against the government arising out of negligent as well as intentional misrepresentation?

28 U.S.C. Sec. 2680(h) prohibits claims against the government arising out of negligent, as well as intentional, misrepresentation. ⁶ Block v. Neal, 460 U.S. 289, 295, 103 S.Ct. 1089, 1092, 75 L.Ed.2d 67 (1983). The prohibition applies only to the misrepresentation portion of the lawsuit. If the plaintiff brings both a misrepresentation and a negligence claim, the government's conduct is actionable under the negligence claim even if the two claims share certain factual and legal questions. Id. at 298, 103 S.Ct. at 1094.

Courts have had difficulty determining whether a claim is one for misrepresentation. The concept is slippery; "any misrepresentation involves some underlying negligence" and "any negligence action can be characterized as one for misrepresentation because any time a person does something he explicitly or implicitly represents that he will do the thing non-negligently." Guild v. United States, 685 F.2d 324, 325 (9th Cir.1982). To determine whether a claim is one of misrepresentation or negligence the court examines the distinction