Compart's Boar Store, Inc. v. United States ( 2016 )


Menu:
  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 15-3147
    ___________________________
    Compart's Boar Store, Inc.
    lllllllllllllllllllll Plaintiff - Appellant
    v.
    United States of America
    lllllllllllllllllllll Defendant - Appellee
    ____________
    Appeal from United States District Court
    for the District of Minnesota - Minneapolis
    ____________
    Submitted: June 14, 2016
    Filed: July 13, 2016
    ____________
    Before MURPHY and SHEPHERD, Circuit Judges, and PERRY,1 District Judge.
    ____________
    MURPHY, Circuit Judge.
    In 2011 Compart's Boar Store (Compart), a producer of breeding swine,
    intended to export over three hundred pigs to China. China suspended all imports
    from Compart, however, after it was notified by the United States government that
    1
    The Honorable Catherine D. Perry, United States District Judge for the Eastern
    District of Missouri, sitting by designation.
    the test results from a small set of the blood samples were "inconclusive" for Porcine
    Reproductive and Respiratory Syndrome virus (PRRSv). Compart subsequently
    brought a negligence suit against the United States under the Federal Tort Claims Act
    (FTCA). The district court2 dismissed Compart's action for lack of jurisdiction after
    concluding that it fell within the FTCA's discretionary function exemption. Compart
    appeals and we affirm.
    I.
    The export of pigs to China is governed by the Quarantine and Health
    Requirements of the People's Republic of China for Swine Exported from the United
    States (China Protocol). Under the China Protocol the National Veterinary Services
    Laboratories (NVSL) must test pigs prior to their export to China for PRRSv, a viral
    disease which can cause pigs to have spontaneous abortions, pneumonia, lethargy,
    and lack of appetite. NVSL is overseen by the Animal and Plant Health Inspection
    Service which is an agency of the USDA.
    NVSL tests pigs for PRRSv using two immonufluorescent antibody (IFA) tests
    and a virus isolation test. If the pigs pass the first IFA test they are isolated in a
    quarantine facility for 30 days and tested again using another IFA test. Ten percent
    of the quarantined pigs are also tested for PRRSv using a virus isolation test. NVSL's
    procedure for virus isolation tests is set out in a document entitled Isolation of
    Porcine Reproductive and Respiratory Syndrome Virus (PRRSV) from Porcine
    Specimens (hereinafter VISOP).
    This VISOP requires testing blood samples on two cell lines, known as SAM
    and MARC cells. The cultures are then examined for cell damage over approximately
    2
    The Honorable Patrick J. Schiltz, United States District Judge for the District
    of Minnesota.
    -2-
    seven days. If no cell damage is observed, the cultures are frozen and thawed and the
    process is repeated. If no cell damage is observed for a second time, the cultures are
    stained and examined for fluorescence. The presence of fluorescence ordinarily
    indicates the presence of PRRSv. The VISOP provides the following guidance for
    interpreting the stained cultures:
    If fluorescence is observed in any cultures inoculated with submitted
    specimens, and is comparable to fluorescence observed in the positive
    slides, and no fluorescence is observed in the negative controls, the
    specimen is reported as positive for PRRS virus isolation. If no
    fluorescence is observed in any but the positive control slides, the
    specimens are considered negative for PRRS virus isolation.
    The VISOP provides no guidance, however, on what action to take when the cultures
    do not appear positive or negative.
    In 2011 Ag World International Corporation secured a contract to export pigs
    to China. After Chinese buyers selected over three hundred of Compart's pigs to be
    included in the shipment, the pigs underwent PRRSv testing. During the first IFA
    test, all of Compart's pigs tested negative for PRRSv. They were then placed in a
    quarantine facility where they passed a second IFA test. During the virus isolation
    test, NVSL did not observe any cell damage in either the MARC or SAM cells.
    Nevertheless, a NVSL lab technician observed fluorescence in some of the stained
    MARC cells. The fluorescence was unusual because it was not as bright as typical
    positive slides and not as dark as typical negative slides. NVSL personnel then
    conducted additional testing that yielded similar results. NVSL then issued a final
    report stating that all PRRSv tests were negative with the exception of a few samples
    whose results were "inconclusive." China subsequently suspended all swine imports
    from Compart.
    Compart filed suit against the United States, alleging that NVSL was negligent
    in testing its pigs for PRRSv and in reporting the results to China. The district court
    -3-
    granted the government's motion to dismiss for lack of jurisdiction under Rule
    12(b)(1). The court concluded that the discretionary function exemption to the
    Federal Tort Claims Act (FTCA) barred Compart's claims. Compart appeals.
    II.
    We review de novo motions to dismiss for lack of jurisdiction under Rule
    12(b)(1). Herden v. United States, 
    726 F.3d 1042
    , 1046 (8th Cir. 2013). The plaintiff
    has the burden of proving subject matter jurisdiction. 
    Id. To determine
    our court's
    jurisdiction, we may look outside the pleadings. 
    Id. We review
    for clear error the
    district court's "determination of disputed factual issues." Osborn v. United States,
    
    918 F.2d 724
    , 730 (8th Cir. 1990).
    Sovereign immunity shields the United States and its agencies from suit absent
    a waiver. FDIC v. Meyer, 
    510 U.S. 471
    , 475 (1994). Under the FTCA the United
    States has consented to be sued in tort "in the same manner and to the same extent as
    a private individual under like circumstances." 28 U.S.C. § 2674. The FTCA
    contains numerous exceptions to this waiver of sovereign immunity, however. E.g.,
    
    id. § 2680.
    If an exception applies, "the bar of sovereign immunity remains." Dolan
    v. U.S. Postal Serv., 
    546 U.S. 481
    , 485 (2006).
    One exception is the discretionary function exemption, which deprives courts
    of jurisdiction over any claim "based upon the exercise or performance or the failure
    to exercise or perform a discretionary function or duty on the part of a federal agency
    or an employee of the Government, whether or not the discretion involved be
    abused." 28 U.S.C. § 2680(a). The purpose of the exception is to "prevent judicial
    second-guessing of legislative and administrative decisions grounded in social,
    economic, and political policy through the medium of an action in tort." United
    States v. Gaubert, 
    499 U.S. 315
    , 323 (1991) (internal quotations omitted).
    -4-
    The discretionary function exemption applies if two requirements are met. See
    
    Gaubert, 499 U.S. at 322
    –23 (1991). First, we must consider whether the suit
    concerns "acts that are discretionary in nature, [that is] acts that involve an element
    of judgment or choice." 
    Id. at 322
    (internal quotations omitted). Government
    employees act with discretion unless they are following a regulation or policy that is
    "mandatory and . . . clearly and specifically define[s] what the employees are
    supposed to do." C.R.S. ex rel. D.B.S. v. United States, 
    11 F.3d 791
    , 799 (8th Cir.
    1993). Second, we must determine whether the government acted or based its
    decision "on considerations of public policy." 
    Gaubert, 499 U.S. at 323
    (internal
    quotations omitted). When the first step is satisfied, we presume that the
    governmental action involved considerations of public policy. 
    Id. at 324.
    It is the
    plaintiff's burden to rebut that presumption. 
    Herden, 726 F.3d at 1048
    .
    The district court correctly concluded that the challenged governmental action
    here was discretionary. Governmental action is discretionary when a governmental
    policy "predominately uses permissive rather than mandatory language." 
    Herden, 726 F.3d at 1047
    . Even when some provisions of a policy are mandatory, governmental
    action remains discretionary if all of the challenged decisions involved "an element
    of judgment or choice." Hart v. United States, 
    630 F.3d 1085
    , 1086 (8th Cir. 2011)
    (internal quotations omitted). In this case, the VISOP predominantly uses permissive
    rather than mandatory language. For example, the VISOP offers NVSL scientists
    ranges for the amount of blood to be used in the tests, the time for initial incubation,
    and the length of thaw times for the frozen samples. Moreover, the VISOP does not
    provide any guidance on how to interpret stained slides for fluorescence or what to
    do if these slides appear inconclusive for PRRSv—the challenged decisions here.
    Compart argues that our decision in McMichael v. United States, 
    751 F.2d 303
    (8th Cir. 1985) compels the opposite conclusion. In that case, the plaintiffs claimed
    that government inspectors failed to regularly perform a 51 step safety compliance
    check. 
    Id. at 307.
    We concluded that the safety compliance check was mandatory,
    -5-
    not discretionary, as it listed "a number of precise inspections to perform." 
    Id. at 307.
    A rote 51 step inspection list is not analogous to the VISOP which consisted of
    mainly permissive guidelines that allowed NVSL personnel to use their judgment for
    most testing and reporting decisions.
    The district court also correctly determined that Compart did not rebut the
    presumption that NVSL PRRSv testing and reporting decisions was susceptible to
    policy analysis. One of the hallmarks "of a decision susceptible to policy analysis is
    one in which a federal employee must weigh or balance competing interests."
    
    Herden, 726 F.3d at 1050
    . The agency's decision here involved weighing several
    competing interests when testing and reporting for the virus. Incorrectly reporting the
    results as negative could have undermined China's confidence in the government's
    PRRSv testing procedures. Yet incorrectly reporting the results as positive could
    have resulted in harsh consequences for Compart and undermined United States pork
    producers' confidence in NVSL. As the district court concluded, determining "what
    to do in this sensitive situation plainly involved . . . considerations of public policy."
    Compart argues that the testing and reporting merely involved professional
    scientific discretion, rather than considerations of public policy. It claims that this
    case is similar to Lather v. Beadle County, 
    879 F.2d 365
    (8th Cir. 1989), where the
    plaintiff alleged that a government psychologist negligently evaluated him. In that
    case we concluded that the psychologist's conduct did not involve considerations of
    public policy because the treatment was "professional [and] nongovernmental." 
    Id. at 368.
    Compart's reliance on Lather is misplaced. There, the psychologist had a
    "singular goal, i.e., providing appropriate medical care to a patient" and was not faced
    with weighing competing interests like NVSL was required to do here. See 
    Herden, 726 F.3d at 1051
    (distinguishing Lather).
    Since NVSL's testing and reporting of Compart's swine was governed by
    discretionary governmental procedures and susceptible to policy analysis, the
    -6-
    discretionary function exemption precludes jurisdiction over Compart's negligence
    claims.
    III.
    For these reasons we affirm the district court's dismissal of this action.
    ______________________________
    -7-