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Buckler v. United States

United States Court of Appeals, Eighth Circuit

March 22, 2019

Ronald C. Buckler Plaintiff - Appellant
v.
United States of America Defendant-Appellee

          Submitted: April 11, 2018

          Appeal from United States District Court for the Western District of Missouri - St. Joseph

          Before BENTON, MELLOY, and GRASZ, Circuit Judges.

          MELLOY, Circuit Judge.

         Ronald C. Buckler was tragically injured at his place of work, a surface gravel mine. Mr. Buckler sued the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1). He argued his injuries were caused at least in part by a federal mine inspector's inadequate inspection of the mine. The district court held Missouri law contained no private-analogue duty from which FTCA liability could arise. The district court held in the alternative that the discretionary-function exception to the FTCA's waiver of sovereign immunity applied. With one limited exception, we agree the discretionary-function exception applies, and we therefore affirm the judgment of the district court in most respects. We reverse only as to the claim that the mine inspector failed to carry out a non-discretionary and mandatory duty to review training records.

         I.

         Mr. Buckler was injured when using an impact-based rock crusher located at the mine. The crusher had a rotating element to throw rocks against a steel anvil. Upstream from this rotator, a vibrating loading chute moved rocks towards the rotator. The vibrating chute became jammed, and workers turned off the vibrator, but not the rotator. Mr. Buckler attempted to clear the chute by pushing the rocks with an 8-foot steel bar. The bar came into contact with the rotator and crushed Mr. Buckler's upper spine, causing quadriplegia.

         The mine at issue was subject to two inspections per year by federal inspectors from the Mine Safety and Health Administration ("MSHA"). The last inspection occurred in March 2011, and the accident occurred in June 2011. According to Mr. Buckler, a hose that controlled a hydraulic rock clearer on the loading chute had been torn for several years, but no mine inspector had identified this shortcoming as a dangerous condition. Also according to Mr. Buckler, the inspector in March 2011 failed to observe rock crushing operations or maintenance, failed to note missing worker training documentation, and failed to disseminate safety information. Finally, Mr. Buckler emphasizes that, notwithstanding these alleged failures during the March inspection, the mine owner received citations for related safety violations discovered after the June accident. Those citations included a violation of 30 C.F.R. § 48.29 for failing to have training documentation for Mr. Buckler available at the mine site for inspection by MSHA. They also included a violation of 30 C.F.R. § 57.14105 for failing to de-energize equipment and block it against motion when performing maintenance.

         Mr. Buckler sued the government pursuant to the FTCA. The government moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), asserting sovereign immunity and arguing a lack of subject matter jurisdiction. The government argued specifically that there existed no state-law, private-analogue duty under Missouri law and that the discretionary-function exception to the FTCA's waiver of sovereign immunity applied. Regarding the discretionary-function exception, the parties disputed whether the alleged infirmities with the inspection arose from the inspectors' mandatory or discretionary functions. And, to the extent the alleged infirmities arose from discretionary functions, the parties disputed whether that discretion was subject to policy analysis. The district court dismissed the case, finding no state-law duty. The district court did not set forth an analysis of the discretionary-function exception but concluded its order by stating that, for the reasons listed in the government's brief, the discretionary-function exception would also bar recovery.

         II.

         We review de novo the district court's grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). See Herden v. United States, 726 F.3d 1042, 1046 (8th Cir. 2013) (en banc). The plaintiff bears "the burden of proving the existence of subject matter jurisdiction," and we may look at materials "outside the pleadings" in conducting our review. Id. (quoting Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir. 2005)). Because of the "unique nature of the jurisdictional question," Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (citation omitted), it is the court's duty to "decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue," id. at 730. As such, if the court's inquiry extends beyond the pleadings, it is not necessary to apply Rule 56 summary judgment standards. Id. at 729. Rather, the court may receive evidence via "any rational mode of inquiry," and the parties may request an evidentiary hearing." Id. at 730 (quoting Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986)). Ultimately, the court must rule upon "the jurisdictional issue [unless it] is 'so bound up with the merits that a full trial on the merits may be necessary to resolve the issue.'" Id. (quoting Crawford, 796 F.2d at 928). "If the [district] court relie[s] . . . on its own determination of disputed factual issues, [we] . . . review those findings under the 'clearly erroneous' standard." Id. (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

         The FTCA serves as a limited waiver of sovereign immunity, opening the door to state-law liability claims against the federal government for harm caused by government employees. See United States v. Olson, 546 U.S. 43, 44 (2005); Herden, 726 F.3d at 1046. Statutory limitations on this waiver that are material to the present case include: (1) the state-law, private-analogue duty requirement; and (2) the discretionary-function exception. The state-law, private-analogue duty requirement precludes the imposition of FTCA liability based solely on the breach of a federally created duty-if a private person acting in similar circumstances would not be liable under state law for the alleged harm, then there is no FTCA waiver of sovereign immunity. See 28 U.S.C. § 1346(b)(1) (allowing liability "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred"). The discretionary-function exception precludes suit against the government for harm caused by a government employee's acts if those acts are subject to discretion that is "grounded in social, economic, and political policy." Herden, 726 F.3d at 1047-47.

         A. State-Law, Private-Analogue Duty

         Here, the parties address several possible sources for a state-law, private-analogue duty, focusing primarily on the Good Samaritan Doctrine as adopted in Missouri. See Stanturf v. Sipes, 447 S.W.2d 558, 561-62 (Mo. 1969); Kraus v. Hy-Vee, Inc., 147 S.W.3d 907, 925 (Mo.Ct.App. 2004). A key requirement for liability under this doctrine is an increase in the risk of harm based upon the defendant's-the Good Samaritan's-actions. See, e.g., Restatement (Second) of Torts § 323(a) (Am. Law Inst. 1965) ("his failure to exercise such care increases the risk of such harm"); § 324A(a) ("his failure to exercise reasonable care increases the risk of such harm"). The government argues a private inspector who negligently fails to detect or report a dangerous condition does not increase the risk of harm but, at most, allows an existing risk caused by another person to persist. According to Mr. Buckler, however, a Missouri Court of Appeals case demonstrates that an inspector's failure to report a dangerous condition should be viewed as increasing the risk of harm. See Brown v. Michigan Millers Mut. Ins. Co., 665 S.W.2d 630, 636 (Mo.Ct.App. 1984) (holding a private inspector increased the risk of harm by failing to report a dangerous condition regarding the risk of electric sparks in the presence of flammable grain dust). Mr. Buckler argues that Brown demonstrates the Missouri Supreme Court, if faced with the question, would conclude a negligent inspection can give rise to liability under the Good Samaritan Doctrine. See Eubank v. Kansas City Power & Light Co., 626 F.3d 424, 427 (8th Cir. 2010) ("If the Supreme Court of Missouri has not addressed an issue, we must predict how the court would rule, and we follow decisions from the intermediate state courts when they are the best evidence of Missouri law.").

         Brown arguably is distinguishable from the present case in several respects. For example, in Brown, an insurer provided the inspector as a means of reducing risk and making insurance more affordable. 665 S.W.2d at 634. Brown, therefore, arguably involved the breach of a contractual duty. Regardless, the court in Brown did not purport to rely on the arguably contractual nature of the duty to inspect. Rather, the Missouri Court of Appeals stated, "Thus, under this theory, there is a factual basis for submission. Defendants, for whatever reason, undertook to inspect for hazards. The evidence unquestionably demonstrates that the existence and use of the plastic pipe was a hazardous condition." Id. at 635. We conclude a qualifying state-law duty exists because Brown provides the "best evidence" as to how the Missouri Supreme Court would rule if faced with the question of whether an assumed duty to investigate for hazards may give rise to state-law tort liability. Eubank, 626 F.3d at 427.

         B. Discretionary-Function Exception

         We use a two-step analysis to determine whether the discretionary-function exception applies. First, we ask "whether the challenged conduct or omission is truly discretionary, that is, whether it involves an element of judgment or choice instead of being 'controlled by mandatory statutes or regulations.'" Herden, 726 F.3d at 1046 (quoting United States v. Gaubert, 499 U.S. 315, 328 (1991)); see also C.R.S. ex rel. D.B.S. v. United States, 11 F.3d 791, 799 (8th Cir. 1993) (noting that the "mandatory" policy directive must be "specific"). If the conduct or omission involves discretion, we next ask "whether the government employee's judgment or choice was 'based on considerations of social, economic, and political policy.'" Herden, 726 F.3d at 1047 (quoting Layton v. United States, 984 F.2d 1496, 1499 (8th Cir. 1993)). Importantly, "as long as a discretionary decision is 'susceptible to policy analysis, '" id. (quoting Gaubert, 499 U.S. at 325), "the exception applies 'whether or not [a] defendant in fact engaged in conscious policy-balancing, '" id. (quoting C.R.S., 11 F.3d at 801). And, if qualifying discretion exists, the exception applies regardless of whether the government employee abuses that discretion. See 28 U.S.C. § 2680(a) (limiting the waiver of sovereign immunity "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" (emphasis added)). Finally, if discretion exists, a presumption arises that the discretion is grounded in policy considerations, and the plaintiff "must rebut this presumption." Herden, 726 F.3d at 1048 (citation omitted).

         i. Discretion

         Turning first to the question of whether discretion exists, we note that our circuit has not yet addressed claims against mine inspectors under the FTCA. However, several of our sister circuits have addressed such claims, and in each case, the parties have conceded the existence of discretion or the courts have expressly determined that the inspectors' duties "involve[d] an element of judgment or choice." Herden, 726 F.3d at 1046. In fact, Mr. Buckler cites no case in which a circuit has held MSHA inspectors lack discretion. See Estate of Bernaldes v. United States, 81 F.3d 428, 429 (4th Cir. 1996) (per curiam) (applying the discretionary-function exception and expressly adopting the reasoning of the underlying Virginia district court which held MSHA inspectors possessed discretion rooted in policy considerations (citing 877 F.Supp. 301 (W.D. Va. 1995))); Myers v. United States, 17 F.3d 890, 895 (6th Cir. 1994) ("Even the most cursory glance at the plaintiffs' wording of [MHSA] duties shows that they are replete with choice and, thus, discretion."); Ayala v. United States, 980 F.2d 1342, 1348-50 (10th Cir. 1992) (noting that the parties conceded an MSHA inspector ...


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