BYE, Circuit Judge.
Greg Herden, Roger Herden, and Garrett Herden (the Herdens) sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. They alleged their cattle operation suffered damage because of a seed mixture an employee of the United States Department of Agriculture (USDA) directed them to plant on their land. The district court
The Herdens operate a three-generation
Because environmental conditions vary widely across the United States, the specific conservation practices approved through EQIP must be determined locally. See 68 Fed.Reg. at 32,341 (2003) ("A basic element of EQIP implementation ... is the use of the locally-led process to adapt EQIP to local conditions."). As a result, the NRCS's State Conservationist chooses local employees who will administer the program at specific sites. See 7 C.F.R. § 1466.6 (2004). In Minnesota, William Hunt served as the NRCS's State Conservationist. Hunt delegated seed mixture planting decisions to his staff, including State Grazing Specialist Howard Moechnig. Moechnig was the particular staff member who visited the Herdens' ranch to select a seed mixture.
Moechnig visited the Herdens' operation in the fall of 2004, including a pasture referred to as Section 11. Moechnig observed particularly wet conditions in Section 11. Because of the saturated soil,
Federal regulations require that "[a]ll conservation practices in the EQIP plan of operations must be carried out in accordance with the applicable NRCS field office technical guide." 7 C.F.R. § 1466.9 (2004). When choosing the seed mixture for the Herdens' land, Moechnig referred to Code 512 of the Minnesota Field Office Technical Guide (FOTG).
Similarly, Table 1 entitled "Seeding Rates" allowed for several mixtures that exceeded the recommended seeding rate of 50-70 seeds per square foot.
After Moechnig chose the seed mixture for the pasture in Section 11, Greg Herden said he complained to Moechnig about the high amount of Alsike Clover in the mixture because the clover can create toxic hay for cattle. Moechnig does not recall Herden complaining about Alsike Clover toxicity, but does remember Herden asking for permission to plant a mix containing alfalfa. Moechnig denied permission to plant an alfalfa mix, explaining that alfalfa is hard to establish on wet soils and therefore would neither meet NRCS's environmental goals nor be a good investment for the government. The Herdens chose to comply with Moechnig's seed mixture decision because failure to do so would have resulted in losing the federal funding under EQIP.
After planting the seed mixture in the Section 11 pasture, the Herdens allowed cattle to graze the pasture. They also harvested hay from the pasture and stored it. They later fed the stored hay to their
In February 2010, the Herdens brought suit against the United States pursuant to the FTCA. They alleged Moechnig was negligent in advising them to plant a seed mixture with such a high amount of Alsike Clover, and his negligence caused injury to their cattle operation and family farm. The government moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The government argued Moechnig's seed mixture selection was the type of policy-implementing decision for which the government is immune from suit under the FTCA's discretionary-function exception. The district court agreed Moechnig's decision was a discretionary one. The district court further determined Moechnig's decision involved the balancing of policy goals and considerations, making it the type of discretionary decision Congress intended to exempt from suit. The district court therefore granted the government's motion to dismiss. The Herdens filed a timely appeal.
When a district court dismisses a claim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, we review the dismissal de novo, "placing the burden of proving the existence of subject matter jurisdiction on the plaintiff." Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir. 2005). We may look outside the pleadings to determine the threshold question of jurisdiction. Id.
Pursuant to the FTCA, the federal government waives sovereign immunity and allows itself to be sued
28 U.S.C. § 1346(b)(1). This broad waiver does not, however, apply to claims "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). This exception is referred to as the discretionary function exception. See, e.g., Walters v. United States, 474 F.3d 1137, 1139 (8th Cir.2007). "If the FTCA's discretionary function exception applies, it is a jurisdictional bar to suit." Id.
A well-established legal framework applies to determine whether the discretionary function exception bars a party's suit under the FTCA. The first inquiry is 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." United States v. Gaubert, 499 U.S. 315, 328, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (citing Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). If the challenged conduct is not
If the challenged action is discretionary, however, the next inquiry is whether the government employee's judgment or choice was "based on considerations of social, economic, and political policy." Layton v. United States, 984 F.2d 1496, 1499 (8th Cir.1993) (citing Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954). Not all discretionary decisions are immune from suit because the Congressional purpose of the exception is "to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy[.]" United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). However, as long as a discretionary decision is "susceptible to policy analysis," Gaubert, 499 U.S. at 325, 111 S.Ct. 1267, the exception applies "whether or not [a] defendant in fact engaged in conscious policy-balancing." C.R.S. ex rel. D.B.S. v. United States, 11 F.3d 791, 801 (8th Cir. 1993).
The Herdens first contend Moechnig's selection of a seed mixture for the Section 11 pasture was not a discretionary decision. More to the point, they argue Moechnig violated a mandatory and specific directive of the FOTG when he selected a seed mixture containing 271 seeds per square foot, because Code 512 says seed "[m]ixtures will have a recommended seeding rate of 50-70 seeds per square foot." See Burgin v. Nix, 899 F.2d 733, 735 (8th Cir.1990) (per curiam) (recognizing the use of the word "will" in a prison policy was mandatory in nature).
We acknowledge a federal regulation clearly mandates that "[a]ll conservation practices in the EQIP plan of operations must be approved by NRCS and developed and carried out in accordance with the applicable NRCS technical guidance." 7 C.F.R. § 1466.9(a). In addition, the government does not dispute the "technical guidance" mentioned in § 1466.9(a) refers to the Minnesota FOTG, including Code 512. We ultimately reject the Herdens' contention that Moechnig violated a mandatory and specific directive when he selected a seed mixture containing more than 50-70 seeds per square foot, however, because Code 512 itself does not mandate any particular seed mixtures. Rather, our reading of the FOTG indicates Code 512 set forth technical guidelines for Moechnig to follow in the exercise of his discretion.
We reach this conclusion for two reasons. First, although Code 512 states seed mixtures "will have" 50-70 seeds per square foot, other parts of Code 512 use permissive language which conflicts with this purportedly mandatory directive. Notably, the phrase "50-70 seeds per square foot" is itself modified by the word "recommended." Code 512 also states it "may be applied as part of a resource management system" and "[o]ther mixtures may be used." See Dykstra v. Bureau of Prisons, 140 F.3d 791, 796 (8th Cir.1998) (indicating "use of the term `may' in ... regulations imports discretion"). Overall, Code 512 uses predominantly permissive rather than mandatory language, a clear signal the seeding mixtures contained therein are merely guidelines rather than mandatory requirements. See Riley v. United States, 486 F.3d 1030, 1033 (8th Cir.2007) (concluding a uniform state highway standard which addressed sight angles at intersections was merely a guideline and not mandatory, despite the standard's use of the term "must," because the standard also used permissive terms such as "guidance" and "recommended").
Second, as noted above, many of the seeding mixtures listed in Tables 1 and 2 of Code 512 actually exceed the purported
The Herdens further contend Moechnig's seed mixture selection, even if discretionary, was not the type of discretionary decision Congress intended to shield from suit because it is not susceptible to policy analysis. Because we have determined Moechnig's decision was a discretionary one, "it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324, 111 S.Ct. 1267. "The [Herdens] must rebut this presumption." Demery v. United States Dep't of Interior, 357 F.3d 830, 833 (8th Cir.2004).
In attempting to rebut the presumption that Moechnig's decision was grounded in policy, the Herdens argue the "decision was a mere professional judgment not imbued with the policy making character that the discretionary function exception was designed to shield from judicial second guessing." Appellant's Br. at 22. The Herdens further suggest the "scale of the decision must be considered" when determining whether a professional decision is susceptible to a policy analysis, and that Moechnig's seed mixture decision "was a professional judgment for one farm, not a decision of sufficient scale to be deemed a policy judgment." Id. at 21, 22.
In Gaubert, the Supreme Court addressed a similar claim involving operational level decisions undertaken by federal bank regulators in managing the day-to-day activities of a savings and loan association (SLA). The plaintiff argued the regulators' conduct fell outside the discretionary function exception because it "involved the mere application of technical skills and business expertise" at the operational level rather than at a policy-making level. 499 U.S. at 331, 111 S.Ct. 1267. The Supreme Court rejected this argument, stating:
Id.
"Discretionary conduct is not confined to the policy or planning level." Id. at 325, 111 S.Ct. 1267. The fact that Moechnig's decision involved technical or professional judgment at the operational level is not enough to remove his decision from the protection of the discretionary function exception. See Layton, 984 F.2d at 1500 ("[T]he Supreme Court has repeatedly said that it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.... In other words, the fact that determinations are
To decide that question, we do not start on a clean slate. Moechnig's selection of a seed mixture implemented the policies of the EQIP program, the purpose of which is "to address soil, water, air, and related natural resources concerns ... in an environmentally beneficial and cost-effective manner." 7 C.F.R. § 1466.1 (2004). In another case involving environmental policy, we addressed whether the government's maintenance of an aeration system on a lake located within the Turtle Mountain Indian Reservation fell within the discretionary function exception. Demery, 357 F.3d at 832. We held "[t]he BIA's maintenance of the aeration system clearly lends itself to policy analysis" because the "decision concerned protecting the environment and aquatic habitats, which are obvious issues of policy." Id. at 833.
Similarly, in Layton we addressed "decisions regarding the culling of timber ... made at the local level" by Forest Service employees. 984 F.2d at 1500. One employee of a private contractor hired by the government to cull trees from the Ozark-St. Francis National Forest died and one employee of a second private contractor suffered injuries in separate felling accidents. They both alleged their injuries were caused in part by the negligence of Forest Service employees in selecting the individual trees to be felled. We held the selection of specific trees to be culled — a decision based on the professional judgment of federal timber markers — fell within the discretionary function exception because the "decisions made by Forest Service personnel were independent choices grounded in policy." Id. at 1502. The policy we identified was the "Forest Service's policy of improving timber quality." Id.
The six reasons Moechnig gave for his seed mixture decision (to establish good ground cover, to enhance soil quality, to enhance ground and surface water quality, to prevent erosion, to create wildlife habitat, and to provide good forage) were all based on considerations of environmental policies the EQIP program was meant to advance.
We have also recognized one of the earmarks of a decision susceptible to policy analysis is one in which a federal employee must weigh or balance competing interests. See Chantal v. United States, 104 F.3d 207, 212 (8th Cir.1997) ("It is well established that a decision which requires the weighing of competing interests is `susceptible to policy analysis' and typifies the kind of governmental decisions which Congress intended to shield from judicial second-guessing." (quoting Gaubert, 499 U.S. at 325, 111 S.Ct. 1267)).
In this case, Moechnig was charged with balancing a number of competing interests. Code 512 required him to choose a seed mixture "as part of a resource management system to accomplish one or more" of six listed purposes:
In addition, two of the statutory purposes of EQIP are to "promote agricultural production... and environmental quality as compatible goals." 16 U.S.C. § 3839aa. As the facts of this case aptly demonstrate, the six purposes listed in Code 512 — as well as the statutory purposes of agricultural production and environmental quality — can sometimes be competing interests even though the NRCS is charged with the task of making them compatible.
On one hand, the Herdens believed a seed mixture containing alfalfa would have better advanced the statutory goal of agricultural production, as well as one of Code 512's stated purposes of improving or maintaining livestock nutrition and/or health. On the other hand, Moechnig believed a seed mixture containing Alsike Clover would better advance the statutory goal of environmental quality, and at least one of Code 512's stated purposes of reducing soil erosion by wind and/or water. The fact that Moechnig was required to balance those competing interests in order "to optimize environmental benefits," 16 U.S.C. § 3839aa, clearly demonstrates the decision he ultimately made was susceptible to policy analysis and thus the type of decision Congress meant to shield from judicial second-guessing. A federal employee implementing EQIP at the local, operational level must have the discretion to balance environmental protection and cattle production in order for the program to be worth the government's significant investment.
Moechnig's need to balance competing interests is what primarily distinguishes this case from others where decisions involving the exercise of professional judgment did not fall within the protection of the discretionary function exception. See C.R.S., 11 F.3d at 802 ("The issue ... whether there are real and competing policy considerations implicated is what separates" protected discretionary decisions from unprotected ones.); Layton, 984 F.2d at 1505 (basing its distinction between protected discretionary decisions and unprotected ones on whether a "consideration of competing values was implicated in the government's decision").
For example, in Lather v. Beadle County, 879 F.2d 365 (8th Cir.1989), we addressed the provision of medical care by a government physician, more specifically,
In Lather, the government actor was advancing a singular goal, i.e., providing appropriate medical care to a patient. The government psychologist was not required to balance any competing policy considerations when he prescribed depression medication, or when he failed to instruct the deputy sheriffs to use restraints. In sharp contrast, Moechnig's job required him to balance protecting the environment with providing nutritious cattle forage, while at the same time being cognizant of the cost to the Herdens and the federal government. We therefore conclude this case involves the type of discretionary decision Congress meant to shield from judicial second-guessing.
We affirm the district court.
BYE, Circuit Judge, with whom WOLLMAN, LOKEN, MURPHY, SMITH, COLLOTON, GRUENDER, and BENTON, Circuit Judges, join, concurring.
MELLOY, Circuit Judge, with whom RILEY, Chief Judge, and SHEPHERD, Circuit Judge, join, dissenting.
I would hold that Moechnig's decision in this case is not the type of decision Congress intended to shield from suit. Decisions are not shielded from suit merely because it is possible to identify policy issues behind the government program at issue. Rather, there must be "real and competing policy considerations implicated," C.R.S. ex rel. D.B.S. v. United States, 11 F.3d 791, 802 (8th Cir.1993), at the general level of decisionmaking challenged in the lawsuit. This "is what separates" protected from unprotected conduct. Id. It is our task to carefully distinguish those cases involving meaningful policy considerations from cases like this, that bear only the superficial trappings of such considerations.
The majority identifies potential policy considerations that lie behind EQIP, and concludes that government technical specialists administering EQIP — employees such as Moechnig — generally are permitted and required to make decisions based upon "competing policy considerations." The majority states, "A federal employee implementing EQIP at the local, operational level must have the discretion to balance environmental protection and cattle production in order for the program to be worth the government's significant investment." Ante at 1050. I simply disagree that such discretion can be characterized as addressing real and competing
To the extent the majority views this case as involving a competing dichotomy — alfalfa for cattle as allegedly proposed by the Herdens versus Moechnig's selected seed mix (allegedly unfit for cattle) — the majority errs in three separate ways. First, it impermissibly focuses upon Moechnig's actual and specific decision in this case. In applying the second step of the discretionary-function analysis, however, we are to ask only if the challenged action permitted the exercise of discretion and whether it was the type of governmental action that is susceptible to policy analysis. We are not to examine the actual choice that was made and infer from that particular choice that policy questions were in play. 28 U.S.C. § 2680(a) (stating that the United States may not be sued based upon the "exercise or performance or the failure to exercise or perform a discretionary function ..., whether or not the discretion involved be abused"); Demery v. U.S. Dep't of Interior, 357 F.3d 830, 833 (8th Cir.2004) ("The judgment or decision need only be susceptible to policy analysis, regardless of whether social, economic, or political policy was ever actually taken into account, for the exception to be triggered."); C.R.S., 11 F.3d at 798 ("Defendant could have considered a wide range of policy factors in making its decision; whether or not it actually did so is immaterial....").
Second, to the extent it was appropriate to examine Moechnig's actual decision at all, the majority's description of the decision is incorrect. Here, the record is clear: Moechnig did not select his recommended seed mixture and reject the Herdens' request for alfalfa to champion environmental concerns over forage needs. He rejected alfalfa as a planting option for the pasture in Section 11 because he did not believe alfalfa was appropriate for the site. In his technical estimation, alfalfa was not likely to thrive in that pasture's saturated soil. Also, in his technical estimation and professional judgment, a high seed application rate for the other species was required to compensate for these difficult growing conditions. Further, Moechnig's recommended seed mixture cannot reasonably be viewed as inherently incompatible with cattle forage needs when viewed in the appropriate context, i.e., as part of a larger cattle operation involving several different pastures with different characteristics and different plant species. This independent fact proves the falseness of the dichotomy at the heart of the majority's opinion. The fighting issues in this case, were a court to permit it to go to trial, would be issues of causation: did Moechnig's seed selection cause the damage to the Herdens' cattle; did the Herdens improperly harvest and store wet grasses and legumes from Section 11, thus by their own hands independently causing the development of dangerous molds or other toxins; did the Herdens unwisely permit their cattle to graze too long or too
Third, the cases show that in almost all situations, it is possible to look at a government actor's decisionmaking task and find some element of "social, economic, or political policy," Demery, 357 F.3d at 833, lurking in the background. It remains important to acknowledge this fact so as to not oversimplify our characterizations of decisions and also to guard against interpreting the mere presence of such issues as showing that they are real and competing in a material sense. In my view, the majority makes this mistake.
In Lather v. Beadle County, 879 F.2d 365, 368 (8th Cir.1989), cited by the majority, we found the discretionary-function exception did not apply to decisions of a government physician providing patient treatment. The majority describes the government actor in Lather as "advancing a singular goal, i.e., providing appropriate medical care to a patient." Ante at 1051. In setting forth this description, the majority fails to acknowledge the complex considerations inherent in the provision of medical care. Behind every individual medical treatment recommendation is a technical medical diagnosis coupled with a calculus that balances the cost-effectiveness of tests, procedures, and medications against the individual patient's wellness goals, the ethical strictures of the profession and society, and larger public-health concerns. For example, the age-related use of PSA tests (with their many false positives) or the overuse of antibiotics are matters of substantial societal concern that, in any individual case, may have grave implications for an individual patient. Nevertheless, the presence of social, economic, and political concerns inherent in medical decisions are not sufficiently "real and competing" in the context of individual patient treatment to trigger application of the discretionary-function exception under the FTCA. I therefore disagree with the majority's attempt to distinguish the present case from Lather by characterizing the physician as a government actor with a "singular goal." Rather, Lather demonstrates the need for our court to openly acknowledge that few if any decisions are made in the pursuit of a singular goal and that social, economic, and political policy considerations can be identified behind most decisions. It remains our task to sort the wheat from the chaff and determine, in each case, whether any such policy issues are "real and competing" in any meaningful way.
In reaching my conclusion that the discretionary-function exception should not apply in this case, I recognize the rebuttable presumption that arises in favor of its application when a court concludes that some degree of discretion exists. United States v. Gaubert, 499 U.S. 315, 324, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) ("When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion."). I also reject categorical treatment,