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Inc. v. United States

United States Court of Appeals, Eighth Circuit

July 13, 2016

Compart's Boar Store, Inc., Plaintiff- Appellant
v.
United States of America, Defendant-Appellee

          Submitted: June 14, 2016

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          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 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[2] 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 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 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 ...


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