To determine the proper scope of the
section 2680(h) exception, we must turn to the “traditional and commonly understood legal definition of the tort.”
United States v. Neustadt, 366 U.S. 696, 706, 81 S.Ct. 1294, 1300, 6 L.Ed.2d 614 (1961). To accomplish this task, we must refer, as the Supreme Court did in
Neustadt, to the
Restatement (Second) of Torts. According to the
Restatement, the tort of misrepresentation is the same as deceit.
Restatement (Second) of Torts Ch. 22, Topic 1 at 55. The
Restatement makes it clear that one essential element of misrepresentation is reliance
by the plaintiff himself upon the false information that has been provided.
Id. § 525 at 55, § 537 at 80, § 552 at 126, and § 552C at 141. Even when the misrepresentation is made to a third party, the plaintiff must have suffered damages because he himself acts in justifiable reliance upon the misrepresentation.
Id. § 533 at 72–73.