George Evans v. United States of America

In this case, a small bug incited

a lawsuit under the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346(b), 2671-2680. The district court, acting through a

magistrate judge, ruled that the FTCA's discretionary function

exception barred the maintenance of the action. See Evans v.

United States, No. 14-cv-40042, 2016 WL 5844473, at *8 (D. Mass.

Sept. 30, 2016) (citing 28 U.S.C. § 2680(a)). After careful

consideration, we affirm.

THE BEETLES

We first rehearse the background of the case dividing

our account into four movements.

Norwegian Wood

The Asian Longhorned Beetle (ALB) is an invasive pest

that arrived in the United States from Asia, concealed in wooden

shipping crates and pallets. According to the United States

Department of Agriculture (USDA), the ALB has the grim potential

to be "one of the most destructive and costly invasive species

ever to enter the United States." It bores into (and reproduces

within) deciduous hardwood trees, such as maple, elm, ash, birch,

poplar, and willow trees. These trees, collectively called "host

trees," are especially vulnerable to ALB infestation, which

generally proves fatal to them. Consequently, ALB infestation

poses a severe threat not only to all host-tree species (ranging

from shade trees to forest resources worth billions of dollars)

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but also to a multitude of industries that depend on the

availability of hardwood. As a result, the USDA has declared ALB

infestation an emergency and has begun working with state and local

governments to eradicate this pest before it causes lasting

economic damage.

In 2008, ALB infestations were first detected in

Massachusetts. That August, the Massachusetts Department of

Conservation and Recreation (DCR) issued a quarantine order under

its authority, see Mass. Gen. Laws ch. 132, §§ 8, 11, 12; Mass.

Gen. Laws ch. 132A, § 1F, to suppress and control nuisance

conditions and regulated articles (including living, dead, cut, or

fallen host trees). The state quarantine area included much of

the City of Worcester, and the state quarantine order authorized

DCR to use all lawful means to suppress, control, and eradicate

ALB infestation (including the removal of all trees that could

become infested). The state quarantine order also authorized DCR

to enter upon lands as might be necessary either to implement the

order or to conduct activities thereunder. Finally, the quarantine

order authorized DCR to invest a federal agency, the Animal and

Plant Health Inspection Service (APHIS), with the same array of

powers.1

1 APHIS is a sub-agency within the USDA.

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The following month (September of 2008), the USDA issued

an order to include portions of Massachusetts within the sweep of

preexisting federal ALB quarantine regulations. See 7 C.F.R.

§ 301.51—1-9. These regulations impose strict requirements on the

interstate movement of any trees or wood products susceptible to

ALB infestation. In January of 2009, this federal quarantine was

expanded to include the Worcester area. See id. § 301.51—3.

Come Together

Toward the end of 2008, DCR entered into a cooperative

agreement (the Agreement) with APHIS to jointly combat the ALB

infestation. The Agreement created the ALB Cooperative

Eradication Project (the Project), a partnership marshaling

federal, state, and local resources and aimed at eradicating the

ALB through, inter alia, host-tree removal. The stated goal of

the Agreement was that "[a]ll infested and certain high risk host

trees will be removed and destroyed in order to eradicate the ALB

from Massachusetts." In furtherance of this goal, APHIS agreed to

develop and deliver "an effective public relations program," to

provide funds to DCR for host-tree removal contracts, and to

furnish support personnel, equipment, and facilities.

With the Agreement in place, the Project began to tackle

ALB infestation one tree at a time. Typically, Project staff would

visually survey trees to determine if they were infested with ALB.

Infested trees were marked with red paint, indicating that their

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removal was obligatory. Uninfested trees that belonged to a host

species were marked with blue paint, indicating that their removal

was encouraged (though not required).

DCR proceeded to write to property owners within the

quarantine areas to inform them that, in consultation with APHIS,

it had determined that it was necessary to take steps to eradicate

ALB. Its letter explained that "the hardwood trees that have

previously been marked with red paint . . . are to be cut, removed,

and destroyed," while "[a]dditional hardwood trees marked with

blue paint . . . may need to be removed and destroyed." The letter

further advised property owners that if trees in this latter

category were going to be cut down, "notice will be provided in

advance." Along with each letter, DCR mailed a form, which gave

property owners an option: "the undersigned ___DOES/___DOES NOT

request and authorize host trees to be cut and removed from the

premises and destroyed." The form also requested a property

owner's signature to authorize DCR's contractors to cut, remove,

or destroy any trees. The property owner was advised that, even

if he did not consent, "failure to permit authorized contractors

to perform the removal actions at the premises . . . will result

in DCR seeking enforcement of this Order in Superior Court."

The Project maintained maps and charts indicating which

property owners had authorized all host-tree removal, which had

authorized only the removal of infested trees, and which had not

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yet signed and returned the form. Ordinarily, an APHIS

representative would go into the field with the tree-removal

contractors hired by DCR and point out which trees they should

cut. Standard practice was that the APHIS representative would

not instruct a contractor to enter a parcel of land unless the

Project's records indicated that the owner had authorized such an

entry.

Here Comes the Sun

Against this backdrop, we turn to the facts giving rise

to the underlying claim. Plaintiff-appellant George Evans owns an

interest in property in Worcester,2 within both the state and

federal quarantine areas. The appellant's half-acre parcel is

located within a 2.2 square-mile area identified as the epicenter

of the ALB infestation and specially targeted for removal of highrisk

host trees. A survey conducted on December 8, 2008, disclosed

that no fewer than thirty-six shade trees on the appellant's

property were host species (although not then infested).

Approximately ten of these trees were daubed with blue paint.

Neither the appellant nor his wife authorized contractors to enter

onto their property for the purpose of tree removal, and Evans

claims — and the government does not dispute — that he did not

2 The appellant's wife, Katherine Evans, is a joint owner of

the property. She has not proffered a claim against the

government, though, and she is not a party to this appeal.

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receive the letter and authorization form from DCR until after his

trees had been cut down.

In mid-February of 2009, contractors nonetheless entered

the appellant's property and cut down twenty-five maple trees.

Crystal Franciosi, an APHIS technician, stated that no fewer than

twenty-one of these trees were infested with ALB.3

The Long and Winding Road

The appellant filed an administrative claim with USDA,

alleging that twenty-five of his shade trees had been chopped down

without his permission. The USDA rejected this claim on January

26, 2012. The appellant countered by instituting this FTCA

action.4 The parties consented to proceed before a magistrate

judge, see 28 U.S.C. § 636(c); Fed. R. Civ. P. 72, and engaged in

extensive pretrial discovery. At the close of discovery, the

3 Franciosi thought that her map showed the property owners

had given permission for the removal of all host trees. A

subsequent investigation found no record that any such permission

had been granted. For summary judgment purposes, we assume,

favorably to the appellant, that the trees were cut down without

his prior authorization. See Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991) (holding that, for summary judgment

purposes, factual disputes must be resolved in favor of the

nonmovant). For the same reason, we also assume — consistent with

the appellant's version of the facts but contrary to the stated

observations of APHIS personnel — that the appellant's trees were

not already infested when they were chopped down.

4 The appellant also sued the contractor who removed the trees

in a Massachusetts state court. See Evans v. Mayer Tree Serv.,

Inc., 46 N.E.3d 102 (Mass. App. Ct. 2016). That state court suit

has no bearing on the issues before us.

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government moved for summary judgment. See Fed. R. Civ. P. 56(a).

The appellant opposed the motion. In a thoughtful rescript, the

magistrate judge entered summary judgment in favor of the

government, concluding that the discretionary function exception

to liability under the FTCA barred the appellant's suit. See

Evans, 2016 WL 5844473, at *8. This timely appeal ensued.

WE CAN WORK IT OUT

We first discuss the discretionary function exception

and how it is designed to operate. We then apply that exception

to the case at hand.

Her Majesty

As a sovereign, the United States is immune from suit

without its consent. See Shansky v. United States, 164 F.3d 688,

690 (1st Cir. 1999). The FTCA provides for a limited waiver of

this sovereign immunity and authorizes suits against the United

States for certain torts. See 28 U.S.C. § 1346(b)(1). Broadly

speaking, the FTCA allows "civil actions on claims against the

United States" for "injury or loss of property . . . caused by the

negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or

employment . . . where the United States, if a private person,

would be liable" under local law. Id.

The FTCA must be "construed strictly in favor of the

federal government, and must not be enlarged beyond such boundaries

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as its language plainly requires." Bolduc v. United States, 402

F.3d 50, 56 (1st Cir. 2005) (quoting United States v. Horn, 29

F.3d 754, 762 (1st Cir. 1994)). In addition, the FTCA's waiver of

sovereign immunity is narrowed by exceptions. One such exception,

commonly called the discretionary function exception, bars

liability for 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).

The analytic framework for use in connection with the

discretionary function exception is familiar. The court must

initially "identify the conduct that is alleged to have caused the

harm." Fothergill v. United States, 566 F.3d 248, 252 (1st Cir.

2009). It must "then determine whether that conduct can fairly be

described as discretionary." Id. If so, it must proceed to

"decide whether the exercise or non-exercise of the granted

discretion is actually or potentially influenced by policy

considerations." Id. In sum, as long as the challenged conduct

involves "the exercise of discretion in furtherance of public

policy goals," claims under the FTCA are foreclosed by the

discretionary function exception. United States v. Gaubert, 499

U.S. 315, 334 (1991). Because this is so "whether or not the

discretion involved be abused," 28 U.S.C. § 2680(a), the presence

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or absence of negligence is irrelevant to the applicability of the

discretionary function exception, see Lopez v. United States, 376

F.3d 1055, 1057 (10th Cir. 2004); Rosebush v. United States, 119

F.3d 438, 442 (6th Cir. 1997).

We afford de novo review to the question of whether the

discretionary function exception shields the government from

liability in any given set of circumstances. See Irving v. United

States, 162 F.3d 154, 162 (1st Cir. 1998) (en banc).

Tell Me Why

In this instance, the challenged conduct is the

destruction of the twenty-five maple trees without first securing

the permission of either the appellant or his wife.5

With the conduct defined, the next question becomes

whether that conduct was discretionary. The appellant argues that

DCR's letter made securing property owner permission obligatory.

He adds that the practice of seeking property owner permission was

taken so seriously by the various governmental actors that it

amounted to a nondiscretionary requirement for federal officials.

We find these arguments unpersuasive.

5 It is clear beyond peradventure that DCR had the authority

under state law to order that the trees be cut down and removed.

See Mass. Gen. Laws ch. 132, §§ 8, 11, 12. Thus, the crux of the

harm is not that the appellant's trees were destroyed but, rather,

that they were destroyed without first obtaining his permission.

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The conduct of federal employees is generally held to be

discretionary unless "a federal statute, regulation, or policy

specifically prescribes a course of action for an employee to

follow." Berkovitz ex rel. Berkovitz v. United States, 486 U.S.

531, 536 (1988). State law will not suffice: only federal

statutes, regulations, or policies will suffice to remove the

discretion of a federal official for purposes of the discretionary

function exception. See Carroll v. United States, 661 F.3d 87,

101 (1st Cir. 2011).

In this instance, DCR's quarantine order authorized

APHIS to "undertake activities necessary [for stopping the spread

of ALB,] including removing or causing to be removed . . . all

[trees] that may be or have the potential to be infested or

infected by ALB." The appellant does not deny that his trees were

host trees, that is, trees that had the potential to be infested.

He nonetheless argues that the letter that DCR sent to property

owners requesting permission to enter onto their property and cut

down trees announced an official state policy and thus imposed an

obligation on cooperating federal officials to follow it. APHIS

had no discretion, the appellant's thesis runs, to violate this

mandatory state policy.

We do not agree. The appellant's thesis "conflates the

merits of [his] claims with the question whether the United States

has conferred jurisdiction on the courts to hear those claims in

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the first place." Carroll, 661 F.3d at 102 (quoting Sydnes v.

United States, 523 F.3d 1179, 1184 (10th Cir. 2008)). A state

policy promulgated by a state agency, without more, cannot divest

the federal government of its sovereign immunity. See id. at 101-

02.

Here, there was no "more." All of the sources of federal

authority that allowed APHIS to partner with DCR (such as the Plant

Protection Act, 7 U.S.C. § 7751, federal regulations, 7 C.F.R.

§ 301.51—1-9, and the Agreement) are completely silent about any

requirement of property owner permission as a condition precedent

to tree removal. Indeed, the Agreement gave federal employees

discretion to "apply appropriate control measures utilizing host

removal" as they deem necessary to halt the ALB epidemic. No

mention was made of any need for property owner permission.

The record makes manifest that, from APHIS's point of

view, the decision about whether to remove a host tree without

property owner permission was a judgment call — a judgment call

that depended upon several interrelated factors, including the

level and timing of infestation. At bottom, this decision was to

be based on scientific knowledge about the beetle and an informed

assessment of what was at risk. Property owner permission simply

was not a determinative consideration in the decisional calculus.

State pronouncements aside, there was no federal requirement that

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APHIS personnel secure (or even seek) such permission before taking

action to curb the infestation.6

To be sure, APHIS tried to be respectful of the wishes

of property owners. APHIS, however, had no binding policy to that

effect: its overriding goal was to do whatever was necessary to

prevent the spread of ALB. From a scientific standpoint, the best

option often was to remove all host trees, regardless of whether

they were already infested and regardless of whether property owner

permission had been obtained. APHIS's decision to employ that

option was squarely within the compass of its discretion. See

Attallah v. United States, 955 F.2d 776, 783 (1st Cir. 1992)

(concluding that discretionary function exception applies "where

there is room for choice" in federal employee decisionmaking).

Seen in this light, property owner permission was a nonissue

for APHIS. If host trees were infested, the destruction of

those trees was required by law, whether or not the property owner

consented. See Mass. Gen. Laws ch. 132, §§ 11, 12. If, however,

host trees were only at risk of infestation, no federal law,

6 The fact that private contractors hired by DCR to remove

trees were contractually bound to obtain property owner permission

before entering onto private property does not rise to the level

of a federal law, regulation, or policy. And to the extent (if at

all) that APHIS had an obligation to supervise those private

contractors, "[w]hen an agency determines the extent to which it

will supervise the . . . procedures of private individuals, it is

exercising discretionary regulatory authority of the most basic

kind." United States v. Varig Airlines, 467 U.S. 797, 819-20

(1984).

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regulation, or policy constrained APHIS' discretion by requiring

the agency to obtain a property owner's permission before removing

them.

As a fallback, the appellant argues that the Project's

practice of obtaining property owner permission and keeping track

of whether such permission had been received was taken so seriously

that APHIS personnel had no discretion to disregard it. This is

whistling past the graveyard. While APHIS personnel testified

that they consistently made good-faith efforts to secure property

owner permission prior to cutting down trees, their approach was

a courtesy — not the product of any official federal policy. A

federal bureaucrat's well-intentioned effort to employ best

practices will not suffice to convert a discretionary act into a

non-discretionary act. In this case, APHIS personnel had

discretion about whether to seek property owner permission before

removing host trees — and the fact that they frequently opted to

seek such permission did not make their tree-removal decisions any

less discretionary. See Gaubert, 499 U.S. at 334 ("If the routine

or frequent nature of a decision were sufficient to remove an

otherwise discretionary act from the scope of the [discretionary

function] exception, then countless policy-based decisions by

regulators exercising day-to-day supervisory authority would be

actionable.")

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Nor does the Agreement change this dynamic. In that

document, APHIS agreed to launch an "effective public relations

program" and keep the "public informed of the status of the

eradication program." Nothing in the Agreement, though, limited

federal employee discretion about how to implement this lofty goal.

Such general guidelines are "insufficient to deprive the federal

government of the protection of the discretionary function

exception." Autery v. United States, 992 F.2d 1523, 1529 (11th

Cir. 1993) (concluding that Park Service hazardous tree

elimination program involved exercise of discretion in targeting

trees for removal); see Shansky, 164 F.3d at 691 (finding statement

in Park Service manual that "[t]he saving of human life will take

precedence over all other management actions" left employees with

discretion as to how to apply "aspirational goal"). Trying another

tack, the appellant suggests that, at the time that his trees were

cut down, the responsible contractor (hired by DCR) had not yet

signed a compliance agreement with APHIS and, thus, had not agreed

to comply with federal quarantine regulations governing interstate

movement of regulated articles. See 7 C.F.R. § 301.51—6. This

suggestion goes nowhere. Given that there was no evidence that

the contractor intended to transport wood products across state

lines, the absence of a signed compliance agreement simply has no

bearing on the appellant's complaint that his trees were removed

without his permission.

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That ends this aspect of the matter. We conclude that

APHIS was exercising discretion when it acted to remove twentyfive

host trees from the appellant's property without first

securing his permission.

Despite this conclusion, our inquiry must continue. The

discretionary function exception protects only those discretionary

choices that are "grounded in social, economic, and political

policy." United States v. Varig Airlines, 467 U.S. 797, 814

(1984). We therefore turn to that question.

"Because the law presumes that the exercise of official

discretion implicates policy judgments," the appellant bears the

burden of demonstrating that the discretion exercised by APHIS in

this instance was not susceptible to policy analysis. Shansky,

164 F.3d at 692. As we explain below, the appellant has failed to

carry that burden.

We begin with bedrock. Even if the on-the-ground

decision to order the removal of the appellant's trees without

first securing his permission was the product of either human error

or faulty recordkeeping, "[t]he critical question is whether the

acts or omissions that form the basis of the suit are susceptible

to a policy-driven analysis, not whether they were the end product

of a policy-driven analysis." Id. (emphasis supplied). Here,

APHIS' choice among potential courses of action was plainly

susceptible to a policy analysis.

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In this regard, it is important to note that any decision

about whether to require federal personnel to obtain property owner

permission prior to removing host trees was necessarily "informed

by a need to balance concerns about a myriad of factors."

Fothergill, 566 F.3d at 253. APHIS scientists recognized that an

uncontrolled ALB infestation could be devastating to local

economies and environments, so they worked with DCR to devise a

policy that would empower APHIS personnel to take appropriate steps

to try and avert the harm. Consistent with this policy, APHIS

adopted a practice of making a good-faith effort to seek property

owner permission before removing trees, but stopped well short of

making such permission a condition precedent to any tree removal.

In other words, APHIS made a policy determination, based on studies

of previous infestations and the biological characteristics of the

ALB, to allow its employees more latitude in order to improve the

chances of stemming the infestation — and as part of this policy

determination, APHIS chose not to require property owner

permission as an invariable condition to the removal of host trees

(whether or not already infested). This choice was a

quintessential policy decision of the kind that the discretionary

function exception was designed to protect. See Autery, 992 F.2d

at 1531.

To say more would be supererogatory. As the magistrate

judge ruled, APHIS's decision to cut down the appellant's trees

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without first securing his permission constituted a policy-driven

exercise of discretion and, thus, falls under the protective

carapace of the discretionary function exception. It follows that

the entry of summary judgment in favor of the government must

stand.

LET IT BE

We need go no further. While we are not without sympathy

for the appellant's plight — the unexpected loss of twenty-five

majestic shade trees must have been a bitter pill to swallow —

Congress has been clear about the federal government's sovereign

immunity. That immunity, as exemplified by the discretionary

function exception, pretermits the appellant's effort to recover

damages under the FTCA. We therefore affirm the decision of the

magistrate judge.

Affirmed. No costs.