Summary of a Recent
Judicial Development in
Food Safety

FSIS Not Subject to FTCA's "Private
Analogue" Requirement

Emilie H. Leibovitch
National AgLaw Center Graduate Assistant

In Barnes v. United States, 448 F.3d 1065 (8th Cir. 2006), the United States Court of Appeals for the Eighth Circuit held that the Food Safety and Inspection Service was immune from liability for negligent inspection and advice.

A Food Safety and Inspection Service (FSIS) employee inspected a chicken-processing plant in Missouri. Barnes, 448 F.3d at 1066. The processor filed suit against the United States alleging that FSIS' negligent inspections, misleading noncompliance notices, and shut-downs drove it out of business. See id. The government moved to dismiss the processor's action claiming sovereign immunity. See id. The district court granted the motion and the Eighth Circuit affirmed. See id.

The Federal Tort Claims Act, pursuant to the "private analogue" requirement, 28 U.S.C. § 2674, and 28 U.S.C. § 1346(b)(1), specifically waives the government's immunity if "the government's conduct [is] such that a private individual under [similar] circumstances would be liable under state law." Id. at 1067 (citation omitted). The court found no private analogue existed because it was not Missouri law that imposed on the FSIS a duty to inspect and to give advice; it was federal law. See id. at 1066. Without owing a duty to inspect and advise under state law, FSIS cannot be liable for negligence under state law. See id.

The court also rejected the processor's argument that the government had acted as a Good Samaritan and so had the duty to exercise reasonable care in rendering services to the processor. See id. at 1067. The court held that the processor was not an intended beneficiary of the FSIS' actions because FSIS conducts its inspections to guarantee the sanitary conditions of the chickens to the public and not to benefit the plant owner. Id.

The case was decided on May 30, 2006; this summary was posted Feb. 21, 2006.