     Case: 19-40077   Document: 00515372558     Page: 1   Date Filed: 04/06/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit


                                 No. 19-40077
                                                                       FILED
                                                                    April 6, 2020
                                                                  Lyle W. Cayce
CASCABEL CATTLE COMPANY, L.L.C.,                                       Clerk

             Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; SONNY PERDUE, Secretary of
Agriculture (or his successor); KEVIN SHEA, Administrator of the Animal
and Plant Health Inspection Service of the USDA (or his successor),

            Defendants - Appellees
************************************************************************
Consolidated with 19-40086

JUAN DELGADILLO,

             Plaintiff - Appellant

v.


UNITED STATES OF AMERICA; SONNY PERDUE, Secretary of
Agriculture (or his
successor); KEVIN SHEA, Administrator of the Animal and Plant Health
Inspection Service of the USDA (or his successor),

              Defendants - Appellees

************************************************************************
Consolidated with 19-40134

LUIS RAMIREZ; SANTIAGO MARTINEZ,

               Plaintiffs - Appellants
     Case: 19-40077   Document: 00515372558    Page: 2   Date Filed: 04/06/2020


                                No. 19-40077
                           c/w 19-40086, 19-40134
v.

UNITED STATES OF AMERICA; SONNY PERDUE, Secretary of
Agriculture (or his
successor); KEVIN SHEA, Administrator of the Animal and Plant Health
Inspection Service of the USDA (or his successor),

               Defendants - Appellees




            Appeals from the United States District Court for the
                        Southern District of Texas


Before WIENER, HIGGINSON, and HO, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Plaintiffs-Appellants—Cascabel Cattle Company, Juan Delgadillo, Luis
Ramirez, and Santiago Ramirez (“plaintiffs”)—sued the United States, the
Secretary of Agriculture, and the Administrator of the United States
Department of Agriculture’s Animal and Plant Health Inspection Service
(“defendants”), alleging violations of the Federal Tort Claims Act (“FTCA”).
Plaintiffs seek monetary damages associated with their loss of livestock
following the implementation of a temporary fever tick quarantine. We
AFFIRM the district court’s dismissal for lack of jurisdiction because the
defendants’ challenged actions fall under the quarantine exception to the
FTCA.
                                        I
      Plaintiffs own cattle that they raise for sale in Cameron County, Texas.
In 2014, the Texas Animal Health Commission (“TAHC”) declared a temporary
fever tick quarantine that included the land where the plaintiffs’ cattle were
being raised. As a result, restrictions were placed on the movement and sale of
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                                    No. 19-40077
                               c/w 19-40086, 19-40134
the plaintiffs’ cattle, and the plaintiffs were required to submit their livestock
for inspection and treatment. The quarantine was part of the Fever Tick
Eradication Program—a joint effort between the United States Department of
Agriculture (“USDA”) and TAHC—to eradicate fever ticks. Fever ticks are
destructive to livestock because they carry protozoan parasites that cause the
often-fatal cattle disease babesiosis.
      The Fever Tick Eradication Program is governed by both federal and
state regulations. See 9 C.F.R. §§ 72.1–72.25; 4 TEX. ADMIN. CODE §§ 41.1–
41.22. Among other things, these regulations classify all cattle in a quarantine
zone as infected, restrict the movement of infected cattle beyond the
quarantine area, and list the specific pesticides and methods of application to
be used for treatment. 9 C.F.R. §§ 72.1, 72.11, 72.13, 72.25; 4 TEX. ADMIN. CODE
§§ 41.4–41.6, 41.8. The restricted-use pesticide cuomaphos, or Co-Ral, is
approved for government use in quarantine zones as a “25 percent wettable
powder or flowable form labeled for use as a 0.25 percent dip and used at a
concentration of 0.125 to 0.250.” 9 C.F.R. § 72.13(b). The government is
required to administer Co-Ral by “thoroughly wetting the entire skin by either
immersion in a chemical solution in a dip vat, or by spraying with a chemical
solution using a spray-dip machine or a hand-held sprayer.” Id. § 72.25.
      Co-Ral’s label also contains instructions regarding its use. Relevantly,
the label warns “not [to] spray in a confined, non-ventilated area” and provides
instructions on how to properly mix Co-Ral for both spray and dip treatment.
The label also states, “It is a violation of Federal Law to use this product in a
manner inconsistent with its labeling.” See 7 U.S.C. § 136j(a)(2)(G) (“It shall
be unlawful for any person to use any registered pesticide in a manner
inconsistent with its labeling . . . .”).
      Plaintiffs claim that their cattle suffered injury and death as a result of
the defendants’ actions during the quarantine. They claim that government
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                                  No. 19-40077
                             c/w 19-40086, 19-40134
personnel negligently rounded up cattle for treatment using chutes and roping,
resulting in the death of at least 14 cattle. They also allege that the
government’s application of Co-Ral by spray box and dipping vat violated the
Co-Ral label and led to the injury and death of more cattle.
      The district court dismissed the lawsuit, finding no jurisdiction because
plaintiffs’ claims were barred by the quarantine exception to the FTCA. The
district court also found that Cascabel Cattle Company failed to exhaust its
administrative remedies for its claims related to the use of a spray box, as
required by the FTCA. Because we AFFIRM dismissal based on the quarantine
exception, we need not address the exhaustion issue.
                                        II
      We review de novo the district court’s dismissal for lack of subject-matter
jurisdiction. See Ordonez Orosco v. Napolitano, 598 F.3d 222, 225 (5th Cir.
2010).
      “The United States enjoys sovereign immunity from suit, meaning it
cannot be sued without consent.” Gonzalez v. United States, 851 F.3d 538, 543
(5th Cir. 2017). “[T]he existence of consent is a prerequisite for jurisdiction.”
United States v. Navajo Nation, 537 U.S. 488, 502 (2003). The FTCA provides
a waiver of sovereign immunity and is “the sole basis of recovery for tort claims
against the United States.” Gonzalez, 851 F.3d at 543. However, the FTCA’s
waiver of sovereign immunity is subject to thirteen statutory exceptions. See
28 U.S.C. § 2680. If one of these exceptions applies, a federal court is without
subject-matter jurisdiction over the claim. Campos v. United States, 888 F.3d
724, 730 (5th Cir. 2018).
      A waiver of the Government’s sovereign immunity is typically construed,
“in terms of its scope, in favor of the sovereign.” See Lane v. Pena, 518 U.S. 187,
192 (1996). However, the Supreme Court has clarified that this “general rule”
is “unhelpful” in the context of the FTCA. Dolan v. U.S. Postal Serv., 546 U.S.
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                                       No. 19-40077
                                c/w 19-40086, 19-40134
481, 491–92 (2006) (quoting Kosak v. United States, 465 U.S. 848, 853 n.9
(1984)). 1 “[T]he proper objective of a court attempting to construe one of the
subsections of 28 U.S.C. § 2680 is to identify those circumstances which are
within the words and reason of the exception—no less and no more.” Id.
(quoting Kosak, 465 U.S. at 853 n.9).
                                             III
       The quarantine exception to the FTCA states that the statute’s sovereign
immunity waiver does not apply to “[a]ny claim for damages caused by the
imposition or establishment of a quarantine by the United States.” 28 U.S.C.
§ 2680(f). The parties dispute the meaning of the terms “caused by” and
“imposition or establishment.” 2
       “[W]ords in statutes are [typically] construed according to ‘their
ordinary, contemporary, common meaning[s].’” Kennedy v. Tex. Utilities, 179
F.3d 258, 261 (5th Cir. 1999) (alteration in original) (quoting Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993)). We often
look to dictionary definitions for help in discerning a word’s ordinary meaning.
See, e.g., United States v. Am. Commercial Lines, L.L.C., 875 F.3d 170, 175 (5th
Cir. 2017); see also Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014); Belt
v. EmCare, Inc., 444 F.3d 403 (5th Cir. 2006) (“[W]e routinely consult
dictionaries as a principal source of ordinary meaning.”).




       1 To the extent our unpublished caselaw has suggested otherwise, it is not persuasive
because it does not engage with the Supreme Court’s clarification in Dolan. See, e.g., Huff v.
Neal, 555 F. App’x 289, 297 (5th Cir. 2014); Ashford v. United States, 463 F. App’x 387, 391
(5th Cir. 2012); Jasper v. Fed. Emergency Mgmt. Agency, 414 F. App’x 649, 651 (5th Cir.
2011); Patel v. United States, 398 F. App’x 22, 27 (5th Cir. 2010); Linn v. United States, 281
F. App’x 339, 344 (5th Cir. 2008).
       2 On appeal, the plaintiffs do not argue that Co-Ral treatments are not part of fever

tick “quarantines.” When plaintiffs’ counsel was asked at oral argument whether the
quarantine encompasses the treatment, he responded affirmatively. Therefore, we do not
decide this undisputed issue.
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                                  No. 19-40077
                             c/w 19-40086, 19-40134
      At the time of the FTCA’s enactment, “establishment” was defined as
“[t]he action of establishing; the fact of being established.” Establishment,
OXFORD ENGLISH DICTIONARY (1933). It also had an alternative definition of
“‘establishing’ by law.” Id. The root, “establish,” was further defined as “[t]o fix
settle, institute or ordain permanently, by enactment or agreement.”
Establish, OXFORD ENGLISH DICTIONARY (1933). “Imposition” was defined as
“[t]he action of imposing or laying as a burden, duty, charge, or task; the action
of inflicting, levying, enjoining, or enforcing.” Imposition, OXFORD ENGLISH
DICTIONARY (1933). “The definition[s] of words in isolation however, [are] not
necessarily controlling in statutory construction. . . . Interpretation of a word
or phrase depends upon reading the whole statutory text, considering the
purpose and context of the statute, and consulting any precedents or
authorities that inform the analysis.” Dolan, 546 U.S. at 486.
      Beginning with context, “different words within the same statute should,
if possible, be given different meanings.” BNSF Ry. Co. v. United States, 775
F.3d 743, 755 n.86 (5th Cir. 2015) (citation omitted). Other cannons of
statutory interpretation suggest the same. For example, the Supreme Court
has noted that “or” is “almost always disjunctive.” Encino Motorcars, LLC v.
Navarro, 138 S. Ct. 1134, 1141 (2018). Here, a disjunctive interpretation of “or”
would imply that “establishment” and “imposition” connotate different actions.
See 28 U.S.C. § 2680(f). Additionally, statutes should ordinarily be construed
so that no words constitute surplusage. See Corley v. United States, 556 U.S.
303, 314 (2009). By applying independent significance to “establishment” and
“imposition,” we help ensure that no part of the statute is “inoperative” or
“insignificant.” See id. (citation omitted). Therefore, we agree with the district
court that “establishment” of the quarantine refers to enactment of the
quarantine, and “imposition” of the quarantine refers to the manner in which
the quarantine is carried out and enforced.
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                                  No. 19-40077
                             c/w 19-40086, 19-40134
      Looking next to precedent, we have previously stated that the words
“caused by” in the quarantine exception mean “proximately caused by.” Rey v.
United States, 484 F.2d 45, 48 (5th Cir. 1973). We have also said that the crux
of proximate cause is reasonable foreseeability. Johnson v. Greer, 477 F.2d 101,
108 (5th Cir. 1973). Thus, the quarantine exception applies when a plaintiff’s
damages are reasonably foreseeable based on the government’s decision to
establish a quarantine or the government’s actions imposing the quarantine.
      This interpretation is consistent with our discussion in Rey. There, the
plaintiffs filed an FTCA claim alleging that a USDA veterinarian negligently
diagnosed their hogs with fatal hog cholera, leading them to be injected with a
live virus vaccine that killed 415 hogs. Rey, 484 F.2d at 46–47. The complaint
alleged that the veterinarian ordered the hogs quarantined “at the time the
initial testing was done,” and that the fatal vaccinations were performed
because of the quarantine.” Id. at 47. The district court dismissed the plaintiffs’
claims pursuant to the quarantine exception. Id. We affirmed on the
alternative grounds that the plaintiffs’ claims were barred by either 28 U.S.C.
§ 2680(h), the misrepresentation exception, or by 28 U.S.C. § 2680(f), the
quarantine exception. Id. at 50. In doing so, we provided some insight into the
proper interpretation of the quarantine exception. Id. at 48. We explained that,
“loss[es] in value occasioned by physical restraint on [live]stock for a period of
time [and] losses caused by the forced exposure of healthy animals to diseased
animals within the quarantine area” fall within the exception. Id. Claims of
“negligence in the procedures . . . by which [the government] arrive[s] at a
decision to impose a quarantine would also be barred by Section 2680(f).” Id.
Conversely, we explained that damages which are merely incidental to a
quarantine, such as “damages caused by the negligent operation of a motor
vehicle during the quarantine inspection process, would not in our judgment
be barred by Section 2680(f).” Id.
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                                  No. 19-40077
                             c/w 19-40086, 19-40134
      This interpretation also makes sense in light of the purpose of the
quarantine exception. “The § 2680 exceptions are designed to protect certain
important governmental functions and prerogatives from disruption.” Molzof
v. United States, 502 U.S. 301, 311 (1992). The very nature of quarantines is
that they may increase the risk to some in order to protect many. By retaining
its sovereign immunity, the government has permitted itself to exercise its
discretion in this sensitive area free from fear of litigation.
      Plaintiffs complain that government employees negligently rounded up
their cattle and negligently treated them with Co-Ral. But the only reason the
government rounded up plaintiffs’ cattle and treated them with Co-Ral was to
enforce the temporary fever tick quarantine. Thus, as the district court noted,
the plaintiffs’ damages are not “an unfortunate incidental harm that was only
tangentially related to the quarantine.” Rather, plaintiffs’ damages were
“caused by” the “implementation” of the quarantine. Therefore, defendants’
challenged actions fall within the quarantine exception to the FTCA.
      Plaintiffs argue that this interpretation is unduly broad. They construe
our interpretation as permitting “all government negligence touching a
quarantine [to] be immune from suit.” We disagree. As we explained in Rey,
the “caused by” element of the exception is an important limiting factor.
Government actions, like negligent driving, that are merely incidental to the
establishment and imposition of a quarantine do not fall within the quarantine
exception. Our interpretation properly identifies those circumstances that are
within the words and reason of the exception—no less and no more. See Dolan,
546 U.S. at 491–92.
      Plaintiffs also argue that our interpretation of the quarantine exception
conflicts with 7 U.S.C. § 136j(a)(2)(G), which makes it unlawful “to use any
registered pesticide in a manner inconsistent with its labeling.” This argument
misconstrues the nature of sovereign immunity. We hold only that a violation
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                                  No. 19-40077
                             c/w 19-40086, 19-40134
of 7 U.S.C. § 136j(a)(2)(G) does not provide a basis for recovery under the FTCA
for plaintiffs whose damages were “caused by the imposition or establishment
of a quarantine by the United States.” See 28 U.S.C. § 2680(f).
      Finally, plaintiffs argue that we should consider whether the
government acted unreasonably and violated the instruction on the Co-Ral
label. These arguments go to the merits of the lawsuit. Because we lack
jurisdiction, we do not consider the merits of the case. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94 (1998).
                                       IV
      For the forgoing reasons, we AFFIRM the district court’s dismissal for
lack of jurisdiction.




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