Evans v. United States
876 F.3d 375
1st Cir.2017Background
- Asian Longhorned Beetle (ALB) infestation discovered in Massachusetts; federal (APHIS/USDA) and state (DCR) agencies cooperated under a joint Agreement to eradicate ALB by removing infested and high‑risk host trees.
- DCR issued a state quarantine authorizing removal of trees and authorized APHIS to exercise similar powers; federal regulations also imposed quarantine controls for ALB.
- DCR mailed property owners a letter and a form requesting permission to remove host trees; Project practice was to seek owner permission and record consent, but APHIS personnel retained discretion to remove trees without owner consent when necessary.
- Plaintiff George Evans owned property inside the quarantine; 36 host trees were identified and ~10 were painted blue (noninfested but high risk). Evans did not return a consent form and claims he did not receive the DCR letter before contractors removed 25 maple trees.
- APHIS contractors (with DCR cooperation) cut 25 trees in February 2009; APHIS technicians later reported many were infested, but for summary‑judgment purposes the court assumed Evans's version that trees were removed without prior authorization and were not yet infested.
- Evans filed an administrative FTCA claim (denied) and then sued the United States in district court; the magistrate judge granted summary judgment for the government based on the FTCA discretionary function exception, and the First Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal of Evans's trees without his permission was discretionary conduct for FTCA §2680(a) purposes | DCR's letter and Project practice made obtaining owner permission mandatory for federal actors; thus APHIS lacked discretion | No federal statute, regulation, or policy required owner permission; APHIS retained judgment based on infestation risk and scientific factors | Held: APHIS action was discretionary — no federal rule stripped discretion |
| Whether the discretionary acts were grounded in policy so as to trigger the exception | Argued the decision was operational/ministerial (seeking consent) and not susceptible to policy analysis | Agency decisions balancing infestation control, economic/environmental harms, and public‑health considerations are policy‑driven | Held: The decision was susceptible to policy analysis and implicated social/economic/political policy; exception applies |
| Whether state law or Project practices can strip federal discretion and permit FTCA suit | State quarantine letter/policy and Project practices created a binding obligation on APHIS to obtain permission | Federal law, regs, and Agreement are silent on mandatory owner consent; state rules cannot eliminate federal sovereign immunity | Held: State policy and courteous Project practices did not eliminate federal discretion |
| Whether contractor compliance formalities (e.g., signed compliance agreement) affected liability | Evans suggested lack of contractor compliance with federal paperwork made removal unlawful | No evidence contractor intended interstate transport; compliance agreement absence irrelevant to the claim that trees were removed without permission | Held: This point did not overcome discretionary‑function protection |
Key Cases Cited
- Shansky v. United States, 164 F.3d 688 (1st Cir.) (discusses scope of discretionary function exception)
- Bolduc v. United States, 402 F.3d 50 (1st Cir.) (FTCA construed narrowly in favor of government)
- United States v. Horn, 29 F.3d 754 (1st Cir.) (interpretation of FTCA waiver limits)
- United States v. Gaubert, 499 U.S. 315 (1991) (discretionary function protects policy‑based agency decisions)
- Berkovitz v. United States, 486 U.S. 531 (1988) (federal statute/regulation can remove discretion if it prescribes specific course of action)
- Carroll v. United States, 661 F.3d 87 (1st Cir.) (state law cannot strip federal discretionary immunity)
- Varig Airlines v. United States, 467 U.S. 797 (1984) (discretionary acts implicate policy judgments)
- Fothergill v. United States, 566 F.3d 248 (1st Cir.) (two‑step discretionary‑function analysis and policy susceptibility)
- Irving v. United States, 162 F.3d 154 (1st Cir.) (de novo review of discretionary function applicability)
- Lopez v. United States, 376 F.3d 1055 (10th Cir.) (negligence irrelevant to discretionary‑function defense)
- Rosebush v. United States, 119 F.3d 438 (6th Cir.) (discretionary‑function bars liability despite alleged abuse of discretion)
- Attallah v. United States, 955 F.2d 776 (1st Cir.) (exercise of discretion where choice exists falls under exception)
- Autery v. United States, 992 F.2d 1523 (11th Cir.) (general goals and public‑relations obligations insufficient to eliminate discretion)
- Mesnick v. General Elec. Co., 950 F.2d 816 (1st Cir.) (summary‑judgment factual‑viewing standard)