Evans v. United StatesEvans v. United States
Michael J. O‘Neill and McGregor & Legere, P.C., Boston, MA, on brief for appellant.
William D. Weinreb, Acting United States Attorney, and Shelbey D. Wright, Assistant United States Attorney, on brief for appellee.
Before LYNCH and SELYA, Circuit Judges, and LEVY, District
SELYA, Circuit Judge.
In this case, a small bug incited a lawsuit under the Federal Tort Claims Act (FTCA),
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
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
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
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 eradicаting 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 placе, 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 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).
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 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 practicе 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 arеa identified as the epicenter of the ALB infestation and specially targeted for removal of high-risk 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 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 appellant filed an administrative claim with USDA, аlleging 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
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
The FTCA must be “construed strictly in favor of the federal government, and must not be enlarged beyond such boundaries 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 аbused.”
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 сhallenged 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, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Because this is so “whether or not the discretion involved be abused,”
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 аdds 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.
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 employeе to follow.” Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (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.” Thе 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 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,
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. Statе pronouncements aside, there was no federal requirement that 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 non-issue for APHIS. If host trees wеre infested, the destruction of those trees was required by law, whether or not the property owner consented. See
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, 111 S.Ct. 1267 (“If the routine or frequent nature of a decision were sufficient
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 аll 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
That ends this aspect of the matter. We conclude that APHIS was exercising discretion when it acted to remove twenty-five host trees from the appellant‘s property withоut 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, 104 S.Ct. 2755, 81 L.Ed.2d 660 (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 susceptiblе 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 record-keeping, “[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 оf a policy-driven analysis.” Id. (emphasis supplied). Here, APHIS’ choice among potential courses of action was plainly susceptible to a policy analysis.
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
To say more would be supererogatory. As the magistrate judge ruled, APHIS‘s decision to cut down the appellant‘s trees 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 undеr the FTCA. We therefore affirm the decision of the magistrate judge.
Affirmed. No costs.