Submitted: June 14, 2016
from United States District Court for the District of
Minnesota - Minneapolis
MURPHY and SHEPHERD, Circuit Judges, and PERRY,  District
MURPHY, Circuit Judge.
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 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
court 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.
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.
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).
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 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.
VISOP provides no guidance, however, on what action to take
when the cultures do not appear positive or negative.
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.
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 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.
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 ...