Greg Herden v. United States

pro plead a claim failed complaint then, relief, fortiori, injunctive

spective so. “Al complaint also fails to do

Lors’s liberally complaint to be proa se

though

construed, facts ‘must contain ” legally cognizable claim].’ supporting [a Trust & Sav. Lally Cnty. v. Crawford Denison, IA.,

Bank, 612, 613

Cir.1988) (quoting Sargent, Martin v. (8th Cir.1985)). Lors has we hold Consequently, so here.

not done a claim complaint plead did not

that Lors’s injunctive relief. prospective

III. Conclusion sovereign we hold immuni-

Because against the state

ty shields defendants money damages claims for

Lors’s plead a prospective

Lors did not claim for relief, jurisdiction we

injunctive have no merits of appeal.

consider the Lors’s Con- and re-

sequently, appeal we dismiss this proceedings further consistent

mand for opinion.

with this HERDEN; Herden;

Greg Roger Herden,

Garrett Plaintiffs-

Appellants

v. America,

UNITED STATES of

Defendant-Appellee.

No. 11-3530. States Appeals, Court of

Eighth Circuit. April

Submitted: 2013. Aug.

Filed: discrimination, place. re- within work acts of harassment and taliation Defendants Eckland,

Jeff Howard argued, Mark J. Blando, Daniel Julian Cragg, Minneapolis, MN, Plaintiffs-Appellants. Martin, Dana Joan argued, Sarah Williams, AUSA, Bryan, Lonnie F. J. Pat- Director, Glynn, Branch, rick Torts Fishback, Quality Program mental Incentives Falk, Assistant David Christina Branch, (2009); (EQIP): and Issues see Directors, Gay Elizabeth Status Torts D.C., brief, (reciting pur- on the also 16 3839aa Washington, U.S.C. Kang, Through EQIP, gov- of poses EQIP). Defendant-Appellee. and technical provides ernment financial RILEY, Judge, Chief Before assistance to farmers and ranchers. BYE, LOKEN, MURPHY, WOLLMAN, ranchers exchange, farmers who SMITH, COLLOTON, MELLOY, EQIP implement choose to participate BENTON, GRUENDER, soil, conservation measures “to address SHEPHERD, Judges, En Banc. Circuit water, air, natural and related resources concerns ... their lands in an environ- on BYE, Judge. Circuit mentally beneficial and cost-effective man- Herden, Herden, Roger and Gar- Greg (2004). ner.” 7 1466.1 In this C.F.R. Herdens) (the rett Herden sued Unit- agreed plant a mix Herdens Federal ed States under the Tort Claims grasses legumes of on some of their (FTCA), §§ Act 2671-80. 28 U.S.C. lands, pasture government agreed and the their cattle suf- They alleged operation the Herdens 90% the reimburse aof mixture an damage fered because seed planting costs associated with the seed Department States employee of the United mixture chosen the NRCS. (USDA) directed them to Agriculture vary Because environmental conditions plant land. The court1 on their district widely spe- across the United claims, concluding Herdens’ dismissed the practices cific approved conservation employee’s the federal conduct fell within through EQIP locally. must be determined discretionary-function excep- the FTCA’s (“A (2003) 32,341 See 68 Fed.Reg. at basic panel After a divided of this court tion. EQIP implementation element of ... court, banc reversed the district the en locally-led process adapt use government’s granted petition court conditions.”). result, EQIP to local As now rehearing. We affirm the district the NRCS’s State Conservationist chooses court. employees local who will administer program See 7 sites. C.F.R. (2004). Minnesota, § 1466.6 William operate a three-genera- The Herdens Hunt served the NRCS’s State Conser- tion2 farm in cattle northern Minnesota. vationist. delegated Hunt seed mixture In May par- the Herdens chose staff, planting including decisions to his ticipate Quality in the Environmental In- Specialist State Howard Moe- Grazing Program (EQIP). EQIP is a centives chnig. Moechnig particular was the staff by the program through run USDA member the Herdens’ who visited ranch to Natural Resource Service Conservation select mixture. seed (NRCS). purpose “The is to operation visited the Herdens’ promote production, forestry Moechnig agriculture 2004, including in the fall management, quality and environmental referred 11. goals, Moechnig and to to as Section ob- compatible optimize envi- Stubbs, particularly served wet conditions in Sec- Megan ronmental benefits.” Serv., soil, R40197, 11. Cong. Environ- tion Because of the Research saturated Tunheim, Roger Greg 1. Herden’s The Honorable John R. Herden is father. Judge for the Greg States District District of Minne- Herden’s Herden is Garrett father. sota. chose a mixture with a Moechnig high ceeded the seeding recommended rate of of Alsike for the amount Clover 50-70 per square seeds foot. pasture. Specifically, in the Moe- plant Similarly, Table 1 entitled “Seeding chnig comprised recommended a mixture Rates” allowed for several mixtures that Clover, pounds pounds of six of Alsike four exceeded the recommended seeding rate of Timothy grass, pounds and three per 50-70 seeds square foot.4 For exam- Creeping grass. Garrison Foxtail Alto- ple, when planted Alsike Clover is alone gether averaged the seed mixture mixture, and not in a Table 1 recommends per square seeds foot. ex- acre, planting 3.5 million per seeds which plained particular he chose that seed mix- converts to over 80 per square seeds foot. reasons, including ture for several the fol- Likewise, the “in mixture” recommenda- (1) cover; lowing: good to establish ground (1.4 tions under Table 1 for Alsike Clover (2) (3) to enhance soil quality; to enhance acre) million per seeds Timothy grass (4) ground and surface quality; water (3.69 acre) million seeds per convert to 117 (5) erosion; prevent to create wildlife habi- per square seeds foot without (6) including

tat; provide good forage. See Creeping grass. Foxtail addition, App. Moechnig at 37. In be- lieved the seed mixture he chose “would After Moechnig chose the seed mixture provide continue to good vegetation for for the pasture in Section Greg Herden many years, so cost-sharing through he complained said to Moechnig about the good was a investment for NRCS.” high amount of Alsike Clover in the mix- Id. ture because the clover can create toxic regulations

Federal require that “[a]ll hay for cattle. Moechnig does not recall practices EQIP plan conservation in the complaining Herden about Alsike Clover operations must be carried out in accor- toxicity, but does remember Herden ask- applicable dance with the NRCS field of- ing permission plant a mix contain- technical guide.” fice 7 C.F.R. 1466.9 ing alfalfa. Moechnig denied permission (2004). When choosing the seed mixture mix, plant an alfalfa explaining that land, for the Moechnig Herdens’ referred alfalfa is hard to establish on wet soils and to Code 512 of the Minnesota Field Office therefore would neither meet NRCS’s en- (FOTG).3 Technical Guide Under head- vironmental goals good nor be a invest- ing Selection,” “Species entitled Code 512 government. ment for the The Herdens says seed will have a recom- “[m]ixtures to comply chose seed mix- mended seeding per rate of 50-70 seeds ture decision because failure to do so square Although foot.” the 271 per seeds losing would have in the federal resulted square foot Moechnig chose for the Her- funding EQIP. under dens’ land exceeded this recommended After planting the seed mixture in the rate, seeding provision another of Code 11 (Table pasture, Section the Herdens allowed 2 entitled “Mixtures Recom- graze cattle to Minnesota”) pasture. They also specified mended fact, may hay mixtures harvested from the and stored “[o]ther be used.” Table listed several They mixtures ex- it. later fed the hay stored to their Coincidentally, 3. pound. pounds per himself authored in each The acre seeds Code 512 of the FOTG. multiplied by per pound the amount of seeds per square by dividing converts to seeds foot 4. Table 1 pounds lists the number of of seed 43,560, square the result the number of per grasses recommended acre for various feet an acre. legumes, as well as the number of seeds Enters., plaintiff.” Inc. v. spring winter and Green Acres during

cattle hay States, The claim toxic 2006-07. United Cir. 2005). in the injure spring their cattle began may pleadings look outside stillborn, and Several calves were question ju to determine the threshold shortly died after birth. Adult cat- others risdiction. Id. died. The Herdens attribute the tle also FTCA, the Pursuant to the their illnesses and deaths of cattle to government sovereign immunity waives hay Clover harvested

Alsike itself to be allows sued pasture. They claim the the Section ... injury property or loss caused virtually to their cattle herd have losses negligent wrongful act or destroyed farming their multi-generational any employee omission of of the Govern- Her- NRCS contests the operation. acting scope ment while within the his claims and instead believes mold dens’ employment, office or under circum- hay prob- caused the improperly stored stances where if a lems with the cattle herd. private liable to the person, would be February Herdens brought claimant in with the law of accordance against pursuant suit the United States to where the or omission oc- place act They alleged Moechnig the FTCA. curred. plant negligent advising them to a seed 1346(b)(1). high § mixture with such a amount of Alsike 28 This broad waiver U.S.C. Clover, negligence injury however, and his caused to not, does to claims apply “based operation family their cattle and farm. upon exercise or or performance The lack government moved dismiss for perform exercise or failure to discretion- subject jurisdiction matter under Feder- ary duty part function or on of a 12(b)(1). al Rule Civil Procedure The agency employee or an of the Gov- government argued Moechnig’s mix- ernment, whether or not the discretion policy-imple- ture selection was the 2680(a). § involved be abused.” 28 U.S.C. menting govern- decision for which the This is as the exception referred to discre- is ment immune from suit under See, exception. e.g., tionary function Wal- discretionary-function exception. FTCA’s States, 1137, ters v. 474 F.3d 1139 United agreed The district court deci- (8th Cir.2007). “If the FTCA’s discretion- discretionary sion was a one. The district ary exception juris- function it is a applies, court further determined Moechnig’s deci- dictional bar to suit.” Id. the balancing policy goals sion involved A legal well-established framework considerations, making it the type applies to determine whether discre discretionary intended tionary exception bars a party’s from exempt suit. The district court inquiry suit under the FTCA. The first granted government’s therefore motion challenged whether the or conduct omis filed timely dismiss. is, sion truly discretionary, that whether appeal. involves an element of

II being choice instead “controlled man datory or regulations.” statutes a district court dismisses a ? Gaubert, 315, 328, States v. 499 111 U.S. claim under Rule of Civil Proce Federal (1991) 1267, (citing S.Ct. 113 L.Ed.2d 335 12(b)(1) subject dure lack of matter States, 531, 486 Berkovitz v. United U.S. jurisdiction, we review dismissal de 536, 1954, novo, 108 S.Ct. 100 L.Ed.2d 531 “placing of proving the burden (1988)). subject jurisdiction existence of matter on If the conduct is not

1047 discretionary, exception ap- does not applicable guidance.” NRCS technical ply- 1466.9(a). § addition, C.F.R. gov- ernment dispute does not the “technical If the challenged action is discre 1466.9(a) guidance” mentioned in refers however, tionary, the next inquiry is FOTG, to the Minnesota including Code government whether the employee’s judg ultimately reject the Herdens’ ment or choice was “based on consider contention that Moechnig violated man- social, economic, political ations of pol datory directive when he se- icy.” Layton v. United lected a seed mixture containing more (8th Cir.1993) 1496, Berkovitz, (citing foot, however, than 50-70 seeds per square 1954). 536-37, at U.S. 108 S.Ct. Not because Code 512 itself does not mandate all decisions immune any particular Rather, seed mixtures. our Congressional pur suit because the reading of the pose FOTG indicates prevent judicial is “to Code 512 set guidelines forth technical ‘second-guessing’ legislative and admin for Moechnig social, istrative grounded decisions follow in the eco exercise of his discretion. nomic, political policy[.]” United We reach this conclusion for two rea- Airlines, Varig 797, 814, States v. 467 U.S. First, sons. although Code 512 states (1984). 104 S.Ct. 81 L.Ed.2d 660 seed mixtures “will have” 50-70 seeds per However, long a discretionary deci foot, square parts other of Code 512 use “susceptible sion is policy analysis,” permissive language which conflicts with Gaubert, U.S. purportedly mandatory directive. No- the exception applies “whether or not [a] tably, phrase per square “50-70 seeds defendant in engaged fact in pol conscious foot” is itself modified the word “recom- icy-balancing.” C.R.S. ex rel. D.B.S. v. mended.” Code 512 “may also states it be States, (8th 791, 11 F.3d 801 Cir. applied part as of a resource management 1993). “[ojther system” and may mixtures be Prisons, used.” Dykstra See v. Bureau of A (8th 791, Cir.1998) 140 F.3d 796 (indicating The Herdens first contend Moe “use of the ‘may’ regulations term in ... chnig’s selection of a seed mixture for the discretion”). Overall, imports Code 512 pasture Section 11 was not a uses predominantly permissive rather than decision. More to the point, they argue mandatory language, a clear signal Moechnig mandatory violated a and specif seeding mixtures contained therein are ic of directive the FOTG when he selected merely guidelines rather than mandatory a seed mixture containing per 271 seeds requirements. Riley v. United foot, square says because Code 512 seed (8th 1030, Cir.2007) (con- 486 F.3d 1033 “[mjixtures will have a recommended seed cluding highway a uniform state standard ing rate of 50-70 seeds per square foot.” sight which addressed angles at intersec- Nix, See Burgin v. 735 merely guideline tions was and not man- Cir.1990) curiam) (per (recognizing the use datory, despite the standard’s use of the of the word prison policy “will” in a “must,” term because the standard also nature). mandatory in permissive used “guidance” terms such as acknowledge regulation a “recommended”). clearly mandates that “[a]ll conservation Second, above, many as noted practices in the plan operations approved by seeding must be developed NRCS and mixtures listed in Tables 1 and 2 and carried out in accordance with the 512 actually Code exceed the purported Gaubert, ad- As Court Supreme foot. per square of 70 seeds

maximum result, such as Grazing Specialist involving opera- State a similar claim dressed instances, not, many could in feder- decisions tional level undertaken contained mixtures comply day-to- in regulators managing the al bank as well the recommended in the tables day savings activities of and loan associa- per square seeding rate of 50-70 seeds (SLA). regu- plaintiff argued The tion con- supports government’s This foot. conduct fell outside the discretion- lators’ seeding rate tention that recommended “involved ary because the maximum 512 did not refer to Code application mere technical skills per square planted amount of seeds be level expertise” operational at the business foot, mandatory was not as a intended policy-making than at a level. rather Consequently, we conclude Moe- range. Supreme The S.Ct. 1267. U.S. for the chnig’s selection a seed mixture stating: rejected argument, Court discretionary de- was a Section just way saying But this another cision. involving the the considerations management of a business day-to-day B pre- [the concern such so SLA] further contend at the cisely formulated that decisions selection, if Moechnig’s seed mixture even level the exer- operational never involve discretionary, discre was not the meaning cise of discretion within intended to tionary FTCA], al- a notion that we have [the suscepti from suit it is not shield because ratio- ready rejected disapproving the analysis. we have Because ble Appeals’ nale of the Court of decision. was a dis Moechnig’s decision determined may resting It be that certain decisions one, “it cretionary presumed must be calculations, on mathematical for exam- agent’s grounded acts are no ple, involve choice or exercising that Gau when discretion.” calculations, carrying out but bert, “The 499 U.S. at acts are not of regulatory alleged here presumption.” must rebut [Herdens] Rather, to us that genre. plain that it is Interior, Demery Dep’t v. United States each of the actions involved (8th Cir.2004). 357 F.3d judgment. exercise of the choice and attempting presumption the rebut Id. Moechnig’s grounded that decision was “Discretionary not confined to conduct is the the “decision policy, argue Herdens policy planning the level.” Id. at not im- professional judgment was a mere Moechnig’s 1267. The fact that the character that policy making bued with professional involved technical or decision discretionary was the function operational at the not level is judicial to shield second designed remove from the enough to his decision 22. The guessing.” Appellant’s Br. at ex- protection discretionary of the function the further the “scale of suggest Layton, at 1500 ception. See must be when deter- decision considered” (“[T]he said Supreme repeatedly Court has mining whether professional conduct, the nature rather that susceptible policy analysis, to a actor, governs than the status “was a mixture decision excep- whether the farm, judgment for not professional one applies given in a case.... In other deemed a tion decision of sufficient scale to be words, the fact are policy judgment.” Id. at that determinations relatively made at a low level does not Similarly, in Layton we addressed “de- prevent applicability regarding cisions exception.”) culling of timber ... (internal made at the by local level” quotation marks Forest Service and citation omitted). employees. Thus, 984 F.2d at 1500. One em- inquiry the relevant does ployee of a private contractor hired focus on whether applied government to cull trees from the Ozark- professional or technical judgment to make St. Francis National Forest died and one just a decision about one seed mixture in employee of a private second contractor Rather, one of one farm. the in- injuries suffered in separate felling acci- quiry is whether the seed mixture decision They dents. alleged both injuries their susceptible to a analysis be- were in part by caused negligence cause it was “based on considerations of Forest Service employees in selecting social, economic, political policy.” Id. individual trees to be felled. We held the at 1499. selection of specific trees to be culled—a To question, decide that we do not start decision based on the professional judg- on a clean slate. Moechnig’s selection of a ment of federal timber markers —fell implemented seed mixture policies of within the discretionary function exception EQIP program, purpose of which because the “decisions made Forest soil, water, air, is “to address and related personnel Service were independent natural resources concerns ... in an envi- grounded choices in policy.” Id. at 1502. ronmentally beneficial and cost-effective The policy we identified was the “Forest (2004). manner.” 7 C.F.R. 1466.1 In Service’s of improving timber quali- ty.” another involving case Id. poli- cy, we govern- addressed whether The six reasons Moechnig gave for his ment’s maintenance of an system aeration (to seed mixture decision good establish on a lake located within the Turtle Moun- cover, ground to enhance soil quality, to

tain Indian Reservation fell within the dis- ground enhance and surface quality, water cretionary function exception. Demery, erosion, prevent to create wildlife habi- 357 F.3d at 832. We held “[t]he BIA’s tat, provide and to good forage) were all system maintenance of the aeration clearly based on considerations of environmental lends policy analysis” itself to because the policies program was meant to “decision concerned protecting the envi- Consequently, advances.5 we see no habitats, aquatic ronment and which meaningful distinction between the deci- obvious issues of policy.” Id. at 833. sions in Demery involved and Layton and 5. The dissent impermissibly contends we fo- to susceptible demonstrate a decision is to upon Moechnig’s Furthermore, cus actual and policy analysis. deci- question the sion. The dissent particular claims the actual decision whether a actually decision maker factors, is irrelevant because policy decision considered or at least could only susceptible them, need policy analysis be to have completely sepa- considered ais discretionary the apply. function inquiry to rate question from the whether the disagree being to limited to an ultimately abstract decision maker abused his discre- any Thus, particular consideration of Al- decision. tion. the dissent’s citation to 28 U.S.C. though 2680(a) a decision actually § maker need not (stating may the United States social, economic, consider political policy or upon be sued discretionary based function trigger exception, to the it is rele- nonetheless "whether or not the discretion involved be abused”) actually vant when a decision maker nothing does does to advance the claim policy making consider factors before a deci- to the effect we cannot examine whether Moe- Indeed, chnig sion. the fact a actually decision maker actual- poli- considered environmental ly policy way takes prior making factors into account one cies his decision. hand, On the Herdens believed involved here. one

the seed mixture decision cases, have employees containing exer- would In all three federal seed mixture alfalfa agri- at opera- statutory goal better of professional cised advanced an level to environmental tional advance as well as one of Code production, cultural government. policy or purposes improving 512’s stated livestock maintaining nutrition and/or one of the ear- recognized We have also hand, Moechnig be- health. the other On susceptible policy marks of decision Alsike containing lieved mixture a seed employee one a federal analysis is in which statutory better advance the Clover would inter- weigh competing must or balance at least goal quality, environmental States, 104 ests. See Chantal v. United of re- purposes one of 512’s stated (“It Code Cir.1997) well F.3d water. ducing erosion wind soil which and/or requires established that a decision Moechnig required fact that was weighing competing interests is ‘sus- in order competing balance those interests analysis’ and ceptible typifies benefits,” optimize “to governmental kind of decisions which Con- 3839aa, clearly judicial § from U.S.C. gress intended to shield sec- demonstrates Gaubert, ultimately suscepti- ond-guessing.” (quoting 499 U.S. decision he made was 1267)). 111 S.Ct. analysis ble to thus meant to shield from charged this judicial second-guessing. A federal em- balancing competing a number of interests. local, EQIP ployee implementing at the required him to Code 512 choose a seed operational level must have the discretion part manage- mixture “as of a resource protection to balance environmental system one accomplish ment or more” program cattle in order production of six listed purposes: government’s significant to be worth (cid:127) compatible spe- Establish adapted investment. cies, varieties, cultivars. or (cid:127) Improve or maintain livestock nutri- competing Moechnig’s need to balance

tion health. primarily distinguishes what and/or interests is (cid:127) in- from others where decisions length grazing Extend the sea- case volving professional judg- exercise of

son. ment (cid:127) fall within protection did not forage production. Provide emergency discretionary exception. (cid:127) Reduce soil erosion wind and/or C.R.S., (“The ... 11 F.3d at 802 issue water. competing poli- whether there are real and (cid:127) Improve species growing or renovate cy implicated sepa- is what considerations hayland. on discretionary rates” decisions protected addition, statutory purposes two of the ones.); unprotected Layton, 984 agricultural pro- are to “promote pro- at 1505 between (basing its distinction ... quality duction and environmental unpro- tected decisions and compatible goals.” 16 U.S.C. 3889aa. tected on whether “consideration ones demonstrate, aptly the facts As of this case values was in the competing implicated purposes the six listed Code 512—as decision”). government’s statutory purposes agricul- well as the For in Lather example, v. Beadle Coun production tural and quali- environmental (8th Cir.1989), we ad ty, 879 F.2d 365 ty competing sometimes be interests —can though charged provision even the of medical care the NRCS with dressed the making compatible. government physician, specifically, task of them more psychologist the Ill provided treatment National Health employed by the Services affirm the district court. Huron, The Corporation in South Dakota. sought for Huron College

basketball coach BYE, Judge, Circuit with whom for de- psychologist treatment from WOLLMAN, LOKEN, MURPHY, pression. government psychologist, The SMITH, COLLOTON, GRUENDER, and psychiatrist, consultation with a prescribed BENTON, Judges, join, Circuit The depression. medication to treat concurring. worsened, however, ulti- depression MELLOY, whom Judge, Circuit with injuries mately the coach suffered serious RILEY, SHEPHERD, Judge, Chief moving when he from a vehicle jumped Judge, join, Circuit dissenting. being transported by deputy while sheriffs to the Human Services Center in Yankton hold would that decision in Moechnig’s after Fol- voluntarily committing himself. is not the type this case of decision Con- lowing the coach injuries, sued gress to suit. intended shield from Deci- government he was psychologist alleging merely sions are shielded suit from negligent in his evaluation of the coach’s is possible identify because it to policy advise failing medical condition and to government program issues behind the at deputy during sheriffs to use restraints Rather, issue. there “real must be Huron transportation the coach’s between policy competing implicat- considerations at and Yankton. Id. 366-68. We held the ed,” States, ex rel. D.B.S. C.R.S. v. United physician’s provision of medical care did (8th Cir.1993), at the discretionary not fall within the general decisionmaking level “gov- it did not because involve separates” the lawsuit. This “is what discretion,” equated ernmental which we unprotected protected conduct. Id. policy with the need to balance consider- carefully distinguish It is our task to those (citing ations. Cas. Georgia See id. at involving meaningful consider- cases & Sur. Co. v. this, only from cases like bear ations (8th Cir.1987)). superficial trappings consider- such ations. Lather, government actor i.e., advancing singular goal, providing majority The identifies potential appropriate patient. EQIP, care to a The that lie medical considerations behind government psychologist required government spe- was not concludes technical any competing policy administering EQIP employees to balance consider- cialists — permit- med- prescribed depression Moechnig generally ations when he such as — ication, required he based or when failed to instruct ted and make decisions deputy sharp upon “competing policy sheriffs to use restraints. considerations.” contrast, states, employee “A job required majority him federal local, opera- protecting implementing balance environment providing forage, nutritious cattle while at tional level must have the discretion to being cognizant protection cost and cat- same time balance program and the in order for govern- production the Herdens tle significant in- government’s ment. conclude this case be worth the We therefore simply Ante at dis- involves the decision vestment.” 1050. I agree that such discretion can be charac- judicial meant shield from addressing competing real and second-guessing. terized as 1052 re- meaningful only policy analysis, be to susceptible a

policy considerations economic, enjoy social, not employee Such an does or gardless sense. whether as goals treat these dual actually the discretion to ever taken into political policy was over the champion one account, inconsistent and trig- exception for the to be must, as a mat- employee Such an (“Defen- other. C.R.S., 11 F.3d gered.”); at 798 upon expertise and based ter of technical range of dant could have considered a wide conditions, agri- “promote site prevailing decision; making its policy factors ... and production cultural actually immate- whether or not it so is did goals.” 16 as U.S.C. quality compatible rial....”). support propo- § no for the 3839aa. find Second, to it appropriate the extent was as specialist such sition that a technical Moechnig’s to examine actual decision statute, by regula- Moechnig is empowered all, description the deci- majority’s tion, role as step outside his or Code 512 to Here, the record is sion incorrect. scientist, policy- on the mantle of take not his recom- clear: did select maker, over goals and choose one these mixture and the Her- reject mended seed v. other. Berkovitz United to envi- request champion dens’ for alfalfa 531, 537, 100 486 U.S. forage ronmental over needs. concerns (1988) (“[T]he discretionary L.Ed.2d 531 rejected planting option He alfalfa as a Govern- function insulates the in Section because he did challenged liability from if the action ment not believe alfalfa was for the appropriate permissible exer- in the case involves the estimation, site. technical alfalfa his add- judgment.” (emphasis cise of policy likely pasture’s was not to thrive in that ed)). Also, technical saturated soil. esti- his majority To the extent views high professional judgment, mation and dichotomy— involving competing case as application species rate for seed the other allegedly proposed alfalfa for cattle as required compensate was for these diffi- selected Herdens versus Further, cult conditions. Moe- growing cattle) mix unfit (allegedly —the chnig’s recommended seed cannot mixture ways. majority in three separate errs reasonably inherently incom- be viewed First, impermissibly upon Moe- focuses forage with cattle patible needs when in this chnig’s actual and context, i.e., appropriate viewed of the applying step case. second part larger operation involving of a cattle however, discretionary-function analysis, pastures several different with different if only we are ask action species. plant characteristics different permitted the exercise of discretion independent proves This fact the falseness whether it of governmental dichotomy major- at the heart of the susceptible analysis. action that to policy ity’s opinion. The in this fighting issues actual choice We are to examine the permit go were a court to it to particu- that was and infer from that made trial, would be issues causation: did questions lar choice were in Moechnig’s seed selection cause the dam- 2680(a) (stating that the play. U.S.C. cattle; to the the Her- age Herdens’ did may upon not be sued based States dens harvest and store wet improperly the failure performance “exercise or or grasses legumes thus Section exercise perform or causing their independently own hands ..., whether or not the discretion development dangerous abused”); molds Demery involved be v. U.S. toxins; Interior, unwisely other did Dep’t Cir.2004) (“The graze need their or too permit long or decision cattle too exclusively on a field of clover when alsike against medications the individual pa- other, less-alsike-intensive pastures were goals, tient’s wellness the ethical stric- available; or, assuming even there were no tures of the profession society, and and storage-related mold or other infirmities larger public-health concerns. For ex- 11, with feed from Section did the Herdens ample, age-related use PSA tests simply by unwisely (with err and exclusively their many false positives) or the feeding heavy a alsike clover mixture to overuse of antibiotics are matters of the cattle when the products harvested that, substantial societal concern any in Section 11 could have been blended with case, may individual grave have implica- other stored potential feed? These and tions for an patient. individual Never- jury questions serious as to causation theless, presence social, econom- make majority’s clear the error in examin- ic, political and concerns inherent in ing Moechnig’s actual decision inter- and medical decisions are sufficiently not it preting dichotomy as based on a false “real and competing” in the context of pitting against cattle needs patient individual treatment to trigger needs. application of the discretionary-function exception

Third, under the FTCA. therefore the cases show that in almost all disagree with the situations, majority’s attempt possible gov- to look at a distinguish the present case ernment actor’s from Lath- decisionmaking task and er by characterizing physician “social, economic, find some as a element of or government actor with political policy,” “singular Demery, 357 F.3d Rather, goal.” Lather demonstrates the lurking background. It remains need for our court important openly acknowl- acknowledge this fact so as to edge any few if decisions are oversimplify our characterizations of pursuit made in the singular of a goal decisions and also guard against inter- social, economic, and that political preting the presence mere of such issues policy considerations can be identified showing they are real compet- behind most It view, decisions. remains our ing a material sense. In my task to sort the wheat from the majority chaff makes this mistake. determine, case, in each whether In Lather v. County, Beadle any such issues are “real and Cir.1989), cited competing” any meaningful way. majority, we found the discretion- In reaching my conclusion that the dis- ary-function apply did not cretionary-function exception should not government decisions physician apply in this I recognize the rebutta- providing patient treatment. The ma- presumption ble that arises in favor of its jority describes government actor application when a court concludes that in Lather “advancing singular degree some i.e., discretion exists. goal, providing appropriate medical Gaubert, 315, 324, States v. 499 U.S. patient.” care to a Ante at 1051. (1991) (“When 113 L.Ed.2d 335 setting description, forth this the ma- governmental policy, established as ex- jority fails to acknowledge complex statute, pressed implied by regulation, considerations provision inherent or agency guidelines, of medical care. allows a Government every Behind individu- discretion, agent al medical to exercise treatment recommendation it must be presumed technical medical that the diagnosis coupled agent’s ground- acts are a calculus that balances ed in exercising the cost- when that discre- tests, tion.”). treatment, procedures, reject effectiveness of I also categorical in this that urged “opera- lines between bright would draw decisions, site-spe- “planning”

tional” and decisions, generally applicable

cific and decisions, non-cost-related

cost-related and layper- technical/professional

or even 325-26, decisions. Id. at 111 S.Ct.

son treatments such (rejecting categorical “planning” and “operational” versus “ conduct, ‘it the nature of stating,

rather than the status actor’ discretionary function

governs whether the

exception applies” (quoting United States 797, 813, Airlines, Varig

v. 467 U.S. (1984))). Still,

S.Ct.' L.Edüd rejection treatment can- categorical

our

not lead us the need to distin- ignore cases

guish between those where and important

concerns substantial in- decisionmaking

factors at level of in a those where

volved case and cases merely background

such concerns are Here,

noise. I left with the firm im- am authority limited

pression type of

did not extend to the discretion to shield from intended suit.

Accordingly, dissent. America,

UNITED STATES

Plaintiff-Appellee

v. DONNELL,

Keith Brian Defendant-

Appellant.

No. 12-3520. Appeals,

United States Court

Eighth Circuit. June

Submitted: 2013. Aug.

Filed:

Case Details

Case Name: Greg Herden v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 9, 2013

Citation: 726 F.3d 1042

Docket Number: 11-3530

Court Abbreviation: 8th Cir.