Defendant's Attorney: William D. Weinreb and Shelbey D. Wright
Description: 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.
We first rehearse the background of the case dividing
our account into four movements.
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
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
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.
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
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.
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-
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
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regulation, or policy constrained APHIS' discretion by requiring
the agency to obtain a property owner's permission before removing
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
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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
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
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