Evans et al v. United States Department of Agriculture et al

Filing 39

Magistrate Judge David H. Hennessy: ORDER entered granting 25 Motion for Summary Judgment. (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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GEORGE EVANS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

CIVIL ACTION
NO. 14-40042-DHH

ORDER
September 30, 2016
Hennessy, M.J.
This matter is before the Court on the Defendant the United States of America’s Motion
for Summary Judgment.

(Docket #25).

The Plaintiff George Evans has filed a response

(docket#35), and the motion is now ripe for adjudication. For the reasons that follow, the Motion
for Summary Judgment is ALLOWED.
I.

BACKGROUND1
On August 8, 2008, the Massachusetts Department of Conservation and Recreation

(“DCR”) issued an order of quarantine for several towns in central Massachusetts to prevent the
human-assisted spread of Asian Longhorn Beetle (“ALB”), a destructive insect known to infest,

1

The following recitation of facts is assumed as true only for purposes of the instant motion.

among other species, maple trees.2 (DF 1, 4).3 The DCR quarantine prohibited any person from
harvesting, cutting, moving, carrying, transporting, or shipping “regulated articles” (i.e. trees and
tree products) within or outside the affected area. (Docket #27-4 at 3-4). The regulated area
included a portion of the City of Worcester. (DF 4). DCR periodically issued orders expanding
the area of the quarantine along with maps of the regulated areas. (DF 5; Docket #27-4).
On December 22, 2008, the United States Department of Agriculture (“USDA”), through
its agency, the Animal Plant Health Inspection Service (“APHIS”), entered into an agreement, the
ALB Cooperative Eradication Program Cooperative Agreement (the “Cooperative Agreement”),
with the DCR codifying a joint action plan to eradicate ALB from the quarantine zone.4 (DF 6-7).
The Cooperative Agreement indicated that APHIS and the DCR would be involved with “[t]he
destruction of infested and high risk host trees” and the “[r]eplacement of trees lost to ALB with
non-host species on public and private property.” (DF 8). Pursuant to the Cooperative Agreement,
APHIS agreed to “[p]rovide personnel to accomplish operational activities” as well as “a project
manager who shall be responsible for coordinating project activities with [DCR] including
planning, decision-making, management, implementation and execution” and “any other activity
leading to the control and eradication of the ALB.” (Id.). DCR agreed to “[s]ecure a cost
competitive tree removal contract” and “[p]rovide the resources and management to administer
the contract.” (Id.).

2

ALB, which is not native to the United States, was transported to this country by burrowing within hardwoods that
were cut into crates and pallets used to import goods into the United States from Asian countries. (DF 1). ALB was
first reported in Massachusetts in August 2008. (DF 3).
3

The term “DF” refers to Defendant United States’ facts. The United States’ facts can be found in its Statement of
Undisputed Facts. (Docket #27).

4

Although not all signatories to this agreement, the ALB Cooperative Eradication Program is a partnership between
APHIS, the United States Forest Service, the DCR, the Massachusetts Department of Agricultural Resources, and the
City of Worcester. (Docket #27-1).

2

DCR solicited bids and entered into contracts with private contractors to cut down trees
designated as ALB host or infected trees. (DF 9). A “host tree” is a member of a certain species
of tree that is susceptible to infestation by ALB, including elm, ash, and all sub-species of maple.
(DF 13). On December 10, 2008, the DCR promulgated bid specifications for these contracts (the
“FAC 47”). (Docket #27-8). Under the FAC 47, tree cutting contractors and their employees
“shall not enter any private property unless [it] is in receipt of a Permission Slip from the property
owner . . . prior to . . . any tree removals.” (Id. at 11).
As part of the eradication process, the ALB Cooperative Eradication Program sent men
and women to visually survey trees in the quarantine area. (DF 16). Pursuant to the survey
protocol, the inspectors marked infested trees with red paint and uninfested host trees with blue
paint. (Docket #27-2 at 15). Because the community was not in favor of removing uninfested
host trees, decisions on whether to remove uninfested host trees were made on a case-by-case
basis. (DF 18). Under the ALB Eradication Program protocol, property owners were given the
choice of whether to allow removal of uninfested host trees. (DF 21). DCR provided a notice to
affected property owners indicating that infected trees, those marked with red paint, were required
to be removed; however, uninfested host trees, those marked with blue paint, could be removed
upon the property owner’s consent, but would not be removed without consent. (Docket 27-2 at
17; Docket #27-10). A form entitled “Acknowledgement and Permission” was attached to the
notice which was to be filled out by the property owner to indicate whether the property owner
authorized the DCR to remove uninfested host trees on the property. (Docket #27-10).
In December of 2008, the ALB Eradication Program identified a 2.2 square mile area
within the City of Worcester which was targeted for removal of infested trees and for seeking

3

permission to remove uninfested host trees. (Docket #27-2 at 13-14). Evans’ property was located
within this area. (DF 20).
Prior to tree removal, ALB Eradication Program personnel prepared color coded maps of
the quarantine area that showed whether individual property owners had given written permission
for their uninfested host trees to be removed. (Docket #27-2 at 23; Docket #27-9 at 9-10).
Properties marked in red indicated that the property owner had not given permission to remove
uninfested host trees, properties marked in blue indicated that the property owner had given
permission to remove uninfested host trees, and properties marked in white indicated that the ALB
Eradication Program did not have a signed permission form from the property owner. (Docket
#27-9 at 11-12). Program monitors and tree cutters used these maps to determine which trees to
remove and whether homeowner permission had been obtained. (DF 25). According to the
procedure in place during the relevant time period, no action would be taken if a signed permission
form had not been obtained. (Docket #27-9 at 12). In addition to the maps, Program monitors
were given a listing of properties within the area they were overseeing that included notes on the
permission status of the property. (Id. at 17-20).
On December 31, 2008, DCR entered into a tree removal contractor with Mayer Tree
Service, Inc. (Docket #35-8). Mayer entered into a tree removal subcontract with Marquis Tree
Service on January 5, 2009. (Docket #35-9).
On January 9, 2009 APHIS issued a federal order quarantining a portion of Worcester
County, Massachusetts. (DF 6). Unlike the DCR quarantine, the APHIS quarantine mandated
regulation of interstate movement of ALB “regulated articles” (i.e. trees and tree products). (Id.).
The order described the boundaries of the regulated area. (Id.).

4

Crystal Franciosi was a Plant Protection and Quarantine technician with APHIS who
oversaw tree removal on February 9, 10, and 11, 2009. (DF 26). On February 10 and 11, 2009,
twenty-two Norway Maple trees were removed from Evans’ property by Marquis.5 (DF 26, 27).
Franciosi reported that she had map permission to remove the trees from Evans’ property. (DF
28). However, the listing of properties included the notation, “need release,” with respect to
Evans’ property. (DF 29). After an investigation by a supervisory investigator with APHIS
Investigative and Enforcement Services, no records were found that would indicate that Evans
ever signed a form giving permission for the removal of his host trees. (DF 30). On February 20,
2009, after the host trees had already been removed, DCR sent Evans a written notice of the
removal and an attached permission form. (DF 31). The notice was dated December 10, 2008.
(Docket #27-10 at 4).
II.

STANDARD
Summary judgment is appropriate when “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Once a party has properly supported its motion for summary judgment, the burden shifts to
the non-moving party, who “may not rest on mere allegations or denials of his pleading, but must
set forth specific facts showing there is a genuine issue for trial.” Barbour v. Dynamics Research
Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)). Moreover, the Court is “obliged to []view the record in the light most favorable to the
nonmoving party, and to draw all reasonable inferences in the nonmoving party’s favor.” LeBlanc
v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court is to ignore “conclusory

5

There is some dispute as to the number of trees that were removed from Evans’ property. However, for purposes of
this motion, that dispute is not material. It is undisputed that a certain number of trees were removed from Evans’
property without his permission.

5

allegations, improbable inferences, and unsupported speculation.” Sullivan v. City of Springfield,
561 F.3d 7, 14 (1st Cir. 2009) (quotation omitted).
III.

ANALYSIS
“The United States as sovereign, is immune from suit save as it consents to be sued, and

the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.”
United States v. Sherwood, 312 U.S. 584, 586 (1941) (internal citations omitted). The Federal
Tort Claims Act (“FTCA”) “provides a ‘carefully limited waiver’ of the federal government’s
sovereign immunity for certain claims alleging harm caused by United States employees or
agents.” Carroll v. United States, 661 F.3d 87, 93 (1st Cir. 2011) (quoting Bolduc v. United States,
402 F.3d 50, 62 (1st Cir. 2005)). The FTCA allows civil actions against the federal government
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, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.
28 U.S.C. § 1346(b)(1).

“[T]he 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, 402 F.3d at 56 (quoting United States v. Horn, 29 F.3d 754, 762 (1st Cir. 1994)).
This statutory waiver of sovereign immunity comes with several exceptions. 28 U.S.C.
§ 2680. The United States argues that two exceptions to the waiver apply in the instant case – the
quarantine exception and the discretionary function exception. (Docket #26 at 7-8).
A.

Quarantine Exception
The United States argues that Evans’ claims fail because the removal of the trees was

performed pursuant to ALB quarantine orders, and, therefore, those claims are barred by 28 U.S.C.
§ 2680(f). (Docket #26 at 8). Pursuant to 28 U.S.C. § 2680(f), “[a]ny claim for damages caused

6

by the imposition or establishment of a quarantine by the United States” is specifically exempted
from the FTCA. For the quarantine exception to apply, the damages must be proximately caused
by the imposition or establishment of a quarantine by the United States. Rey v. United States, 484
F.2d 45, 48 (5th Cir. 1973). Damages incidental to the quarantine itself are not barred by the
quarantine exception. Id.
Pursuant to the Plant Protection Act (the “PPA”), the Secretary of Agriculture is authorized
to “prohibit or restrict the importation, entry, exportation, or movement in interstate commerce”
of plants and plant products if the Secretary determines that such a prohibition is necessary to
prevent the dissemination of a plant pest in the United States. 7 U.S.C. § 7712(a). The United
States has promulgated regulations authorizing the Administrator of APHIS to impose quarantines
in states in which the ALB has been found or in which the Administrator has reason to believe that
the ALB is present.6 7 C.F.R. § 301.51-3(a). On January 9, 2009, pursuant to these authorities,
APHIS issued a quarantine on the interstate movement of ALB regulated articles from portions of
Worcester County. (Docket #27-6).
Evans correctly argues that nothing in the PPA or the ALB quarantine regulations
authorizes the United States to regulate living, mature, stationary trees on private property.
(See Docket #34 at 10). Instead, the removal of ALB infested or host trees in Worcester County
in 2009 was grounded on orders issued by the DCR pursuant to its authority under sections 8, 11,
and 12 of chapter 132 and section 1F of chapter 132A of the Massachusetts General Laws.7 (See

6

The Administrator may designate less than an entire state as a quarantined area only if the state itself has adopted
and is enforcing restrictions on the intrastate movement of regulated articles equivalent to those imposed by the United
States on the interstate movement of those same articles. 7 C.F.R. § 301.51-3(a).
7

Section 1F of chapter 132A of the Massachusetts General Laws provides that the bureau of forestry, a division of
the DCR, shall be responsible for the insect suppression of public nuisances. Section 12 of chapter 132 of the
Massachusetts General Laws imposes civil liability upon any person who knowingly violates an order of quarantine
imposed by the DCR relative to the suppression or eradication of ALB.

7

Docket #27-4; Docket #27-10). Section 11 of chapter 132 of the Massachusetts General Laws
authorizes the DCR to make rules and regulations for the purpose of suppressing the ALB. Mass.
Gen. Laws ch. 132, § 11. Section 8 of that chapter permits DCR employees and agents to enter
upon any land within the Commonwealth of Massachusetts to determine the existence of an
infestation of ALB and to suppress and control ALB. Mass. Gen. Laws ch. 132, § 8. Pursuant to
these authorities, the DCR imposed the August 8, 2008 quarantine and its periodically issued
updates which authorized the DCR to make use of “all lawful means of suppressing, controlling
and eradicating ALB, including . . . removing or causing to be removed, and the destruction thereof
of all Regulated Articles,” including living trees, within the quarantine area “that are, may be or
have the potential to be infested or infected by ALB.” (Docket #27-4). Consistent with this
framework, the notice sent to homeowners indicating that ALB infested trees would be removed
and seeking permission to remove host trees indicated that such trees were being removed pursuant
to the DCR quarantine. (Docket #27-10).
As the quarantine imposed by the United States was not the proximate cause of the
destruction of Evans’ trees – because the federal quarantine was a restriction on the movement of
articles in commerce, and not a mandate for the destruction of ALB infested or host trees – the
quarantine exception to the FTCA does not preclude Evans’ claims.
B.

Discretionary Function Exception
Alternatively, the United States argues that Evans’ claims are barred pursuant to the

discretionary function exception. (Docket #26 at 10). This exception bars liability against the
United States for:
Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not such
statute or regulation be valid, or based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal
8

agency or an employee of the Government, whether or not the discretion involved
be abused.
28 U.S.C. § 2680(a). “The Supreme Court has observed that the discretionary function exemption
‘marks the boundary between Congress’ willingness to impose tort liability upon the United States
and its desire to protect certain governmental activities from exposure to suit by private
individuals.’” Carroll v. United States, 661 F.3d 87, 99 (1st Cir. 2011) (quoting United States v.
S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)). The
discretionary function exception “immunizes conduct of government employees that arises from
‘legislative and administrative decisions grounded in social, economic, and political policy,’
protecting against ‘liability that would seriously handicap efficient government operations.’” Id.
(quoting Wood v. United States, 290 F.3d 29, 36 (1st Cir. 2002)).
The discretionary function exception “poses a jurisdictional prerequisite to suit, which the
plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction.”
Baird v. United States, 653 F.2d 440 (10th Cir. 1981); see Santoni v. Potter, 369 F.3d 594, 602
(1st Cir. 2004) (“If the discretionary function exception applies, the agency is completely immune
from suit, and the claim must be dismissed for lack of subject matter jurisdiction.”). Because the
exception applies “whether or not the discretion involved be abused,” 28 U.S.C. § 2680(a), “the
question of negligence is irrelevant to the applicability of the discretionary function exemption.”
Lopez v. United States, 376 F.3d 1055, 1057 (10th Cir. 2004), accord Valdez v. United States, No.
13-1606(SCC), 2015 U.S. Dist. LEXIS 31425, at *9 (D.P.R. Mar. 12, 2015).
There is a well-established framework used to determine the applicability of the
discretionary function exception: “A court must first identify the conduct that is alleged to have
caused the harm, then determine whether that conduct can fairly be described as discretionary, and
if so, decide whether the exercise or non-exercise of the granted discretion is actually or potentially
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influenced by policy considerations.” Id. (quoting Fothergill v. United States, 556 F.3d 248, 252
(1st Cir. 2009)). “If the conduct is both discretionary and policy-related, the discretionary function
exception bars subject matter jurisdiction.” Montijo-Reyes v. United States, 436 F.3d 19, 24 (1st
Cir. 2006).
1.

The Allegedly Harmful Conduct

At the first step of the inquiry, the court must identify the allegedly harmful conduct,
focusing “on the nature and quality of the harm-producing conduct, not on the plaintiff’s
characterization of that conduct.” Fothergill, 566 F.3d at 252-53. The focus of Evans’ complaints
rests on the removal of his trees without first obtaining his permission.8 (Docket #10 at ¶¶ 29-33).
2.

The Nature of the Conduct

At the second step of the inquiry, the court must determine whether the allegedly harmful
conduct “involves a matter that the political branches have left to the actor’s choice.” Fothergill,
566 F.3d at 253. “[T]he discretionary function exception will not apply when a federal statute,
regulation, or policy specifically prescribes a course of action for an employee to follow.”
Berkovitz v. United States, 486 U.S. 531, 536 (1988), quoted in Sydnes v. United States, 523 F.3d
1179, 1184 (10th Cir. 2008) (“To overcome the discretionary function exception and thus have a
chance of establishing a waiver of sovereign immunity, plaintiffs must show that the federal
employee’s discretion was limited by ‘a federal statute, regulation, or policy;’ after all, states can’t
waive the federal government’s immunity.”); see Carroll, 661 F.3d at 101 (“State law cannot
override the FTCA’s grant of immunity for discretionary conduct”). “In such circumstances,
where ‘the employee’s conduct cannot appropriately be the product of judgment or choice, there

8

While both parties choose to frame the harm around the failure to obtain permission, and the court decides this case
based on the parties having framed the issue in that manner, the court also recognizes that the harm here could have
simply been the removal of Evans’ trees.

10

is no discretion in the conduct for the discretionary function exception to protect.’” Carroll, 661
F.3d at 100-01 (quoting Berkovitz, 486 U.S. at 536). However, where “the government actors in
question have latitude to make decisions and choose among alternative courses of action, the
conduct is discretionary.” Bolduc, 402 F.3d at 61.
In order to implement the PPA, the Secretary of Agriculture “may cooperate with . . . States
or political subdivisions of States.” 7 U.S.C. § 7751(a). Under the PPA framework, the State
“shall be responsible for the authority necessary to conduct the operations or take measures on all
land and properties within the . . . State, other than those owned or controlled by the United
States[.]” 7 U.S.C. § 7751(b)(1). Evans argues that this federal statute bound the United States to
follow whatever procedures the Commonwealth of Massachusetts enacted under its statutory
authority, including the requirement that the property owner’s permission be obtained prior to
removing uninfested host trees, and, hence, the conduct of the United States that caused the
removal of his trees was not discretionary. (Docket #34 at 14-15).
In Lopez v. United States, the Tenth Circuit considered whether the court had subject
matter over plaintiffs’ claim that the United States Postal Service (“USPS”) negligently failed to
take account of the driving public when locating a row of mailboxes on the shoulder of a highway
or whether such claims were barred by the discretionary function exception to the FTCA. Lopez,
376 F.3d at 1057. The plaintiffs argued that USPS regulations and administrative policy removed
discretion from USPS employees to situate the mailboxes at the location in question because
Section 632.524 of the Postal Operations Manual stated that mailboxes “must be placed to conform
to state laws and highway regulations.” Id. at 1057-58. This requirement was reiterated in the
Domestic Mail Manual, which provided that mailboxes must be placed “subject to state laws and
regulations.” Id. at 1058. The Tenth Circuit found that these regulations demanded that applicable

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state highway safety regulations be followed when determining mailbox locations, and, therefore,
if mailboxes were placed in violation of state law or regulations, the USPS was compelled by its
own regulations to relocate them. Id. The Tenth Circuit held that this was a nondiscretionary
mandate. Id.
Unlike the postal regulations in Lopez which affirmatively required the USPS to act in
conformity with state law, the statute here, 7 U.S.C. § 7751(b)(1), does not limit or remove the
discretion of the USDA. Far from it, the statute places all responsibility for “the authority
necessary to conduct the operations or take measures on all land and properties” on the entity
cooperating with the USDA, here the Commonwealth. The statute does not place any affirmative,
nondiscretionary duty on the United States. Cf. Lopez, 376 F.3d at 1058 (holding that USPS
regulations compelled USPS to relocate mailboxes placed in violation of state law or regulations
where USPS manual stated mailboxes “must be placed to conform to state laws and highway
regulations”) (emphasis added).

If the Commonwealth failed to obtain the permission it

unilaterally agreed it would obtain before removing trees, then, under federal law, “responsibility”
lies with the Commonwealth.9 Evans’ argument is predicated on a reading of the statute that the
Commonwealth’s responsibility ends when it adopts a protocol to obtain authority to enter on land
within the Commonwealth.

But the statute does not so limit the responsibility of the

Commonwealth. Without exception, it places responsibility for the authority necessary to conduct
operations on the Commonwealth. Hence, this court finds that the United States did not adopt
DCR’s practice of obtaining property owners’ written consent prior to removing uninfected host
trees so that this practice had the effect of a federal statute, regulation, or policy. This reading of

9

I note that the issue of whether this practice was binding on the DCR is currently being litigated at the state level.
See Evans v. Mayer Tree Serv., Inc., 89 Mass. App. Ct. 137, 149-50 (2016). The court need not reach that issue here
as it finds that the discretionary function exemption is applicable.

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the statute is consistent with the court’s obligation to “construe [] waivers [of sovereign immunity]
narrowly and to resolve any ambiguity or uncertainty in favor of immunity. Abreu v. United
States, 468 F.3d 20, 30 (1st Cir. 2006).
While it finds the analysis above dispositive on the issue, the court also rejects Evans’
argument that, by entering into the Cooperative Agreement, APHIS became an agent of the
Commonwealth, and was thereby bound by any obligation the DCR unilaterally undertook.
(Docket #34 at 13-15). While 7 U.S.C. § 7751(a) provides that the USDA may cooperate with a
State to carry out the PPA, as stated above, there is no mention in the statute of any agency
relationship. The court notes that the Cooperative Agreement itself never uses the word “agent.”
Instead it describes the relationship as “cooperative,” noting that “[e]radication is achieved through
the cooperative efforts of federal, state and local governments,” and that “[t]hrough this mutually
beneficial cooperative effort, MDCR and APHIS endeavor to identify where ALB is present[.]”
(Docket #27-7 at 2). Pursuant to the Cooperative Agreement, APHIS agreed to “[p]rovide
personnel to accomplish operational activities and objectives.” (Id. at 4). The Cooperative
Agreement states that these “[f]ederal personnel will be deployed to assist in related program
activities as determined and agreed to by MDCR and APHIS.” (Id.) (emphasis added). The
Cooperative Agreement clearly contemplates a cooperative venture, rather than one in which the
DCR has any right to control the actions of APHIS. Thus, the essential element of an agency
relationship is missing. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2666 (2013) (“An essential
element of agency is the principal’s right to control the agent’s actions.”) (quoting 1 Restatement
(Third) of Agency § 1.01, Comment f (2005)).10

10

Evans’ construction of the Cooperative

While Hollingsworth quotes the Third Restatement of Agency, this principal is equally applicable under the Second
Restatement of Agency which Massachusetts follows. See CNE Direct, Inc. v. Blackberry Corp., 821 F.3d 146, 150
(1st Cir. 2016).

13

Agreement, while suiting his theory of liability, would, in effect, allow a state government to limit
the scope of the United States’ sovereign immunity. Case law clearly holds that the states do not
possess such power. See Sydnes, 523 F.3d at 1184; Carroll, 661 F.3d at 101.
Evans also argues that, because Marquis had yet to complete a compliance agreement prior
to removing his trees, the United States did not have the authority to direct Marquis to remove
those trees. (Docket #34 at 15-16). However, in accordance with the plain language of 7 U.S.C.
§ 7751(b), discussed above, even if Marquis was not authorized to remove trees, Section 7751
makes clear that responsibility for the authority to conduct operations lies with the
Commonwealth. Ensuring that tree removal contractors are qualified falls squarely within that
requirement. Moreover, the Cooperative Agreement places responsibility on the Commonwealth
to “award and administer host tree removal contracts.” (Docket #27-7 at 6). The responsibility of
the United States, insofar as tree removal contractors are concerned, is only to provide the funds
that the Commonwealth will utilize to award and administer those contracts. (Id.).
Nothing in 7 C.F.R. § 301-51 requires a contrary result. 7 C.F.R. § 301-51-6 provides that:
Persons engaged in growing, handling, or moving regulated articles interstate may
enter into a compliance agreement if such persons review with an inspector each
stipulation of the compliance agreement. Any person who enters into a compliance
agreement with APHIS must agree to comply with the previsions of this subpart
[the regulations dealing with ALB] and any conditions imposed under this subpart.
A compliance agreement is defined as “[a] written agreement between APHIS and a person
engaged in growing, handling, or moving regulated articles that are moved interstate, in which the
person agrees to comply with the provisions of this subpart [the regulations dealing with ALB]
and any conditions imposed under this subpart.” 7 C.F.R. § 301-51-1. Pursuant to the FAC 47,
tree cutting contractors and their employees were to perform all work and services to eradicate the
ALB in accordance with the Compliance Agreement. (Docket #27-8 at 3). Marquis signed a

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compliance agreement with APHIS and the DCR on February 18, 2009, after the trees at issue
were removed from Evans’ property. (Docket #35-2). As an initial matter, there is no indication
in the record that Marquis, which is located in Burlington, Massachusetts, handled or moved the
trees interstate. (See id.). Hence, there is no independent requirement under 7 C.F.R. § 301-51-6
for the United States to enter into a compliance agreement with Marquis. Even if it did handle or
move regulated articles interstate, 7 C.F.R. § 301-51-6 places no affirmative requirement upon
APHIS to enter a compliance agreement with Marquis. The regulation is not directed at APHIS
but rather those who seek to enter an agreement with APHIS and contains only permissive
language, stating that such persons “may enter into a compliance agreement[.]” 7 C.F.R. § 30151-6 (emphasis added). Nor, for the same reasons explained above with respect to the permission
provision, can the fact that the FAC 47 required tree cutting employees to perform all work and
services in accordance with the Compliance Agreement override the FTCA’s grant of immunity
for discretionary conduct.
Pursuant to the FAC 47, tree cutting contractors and their employees were also required to
perform all work and services to eradicate the ALB in accordance with the DCR quarantine order.
(Docket #27-8 at 3). The DCR quarantine provides: “No person shall harvest, cut, move, carry,
transport or ship (or authorize or allow any other Person to do the same) Regulated Articles [i.e.
trees and tree products] within or outside of the Affected Area during the Quarantine Period unless
specifically authorized in writing by the Commissioner of the [DCR].” (Docket #27-4 at 4). Evans
asserts that this provision precluded the United States from directing Marquis Tree to remove any
trees unless and until Marquis Tree was specifically authorized to so in writing by DCR. (Docket
#34 at 15). As explained previously, however, state law cannot override the FTCA’s grant of
immunity for discretionary conduct. See Sydnes, 523 F.3d at 1184; Carroll, 661 F.3d at 101

15

3.

Policy Considerations

At the final step of the inquiry, the court must determine whether Franciosi’s decision to
remove Evans’ uninfested host trees without first obtaining his permission was arguably based on
considerations of public policy. “[T]he actions of Government agents involving the necessary
element of choice and grounded in the social, economic, or political goals of the statute and
regulations are protected.” United States v. Gaubert, 499 U.S. 315, 317 (1991). “Where ‘a
regulation allows the employee discretion, the very existence of the regulation creates a strong
presumption that a discretionary act authorized by the regulation involves consideration of the
same policies which led to the promulgation of the regulations.’” Limar Shipping Ltd. v. United
States, 324 F.3d 1, 8-9 (1st Cir. 2003) (quoting Gaubert, 499 U.S. at 317). First Circuit precedence
places the burden on the plaintiff to show “that discretionary conduct was not policy-driven and,
hence, falls outside the exception.” Carroll, 661 F.3d at 100 n.15. But see Hart v. United States,
630 F.3d 1085, 1089 n.3 (8th Cir. 2011) (noting circuit split on whether the plaintiff or the
government bears the burden of proof).
The law imposes no requirement that the government, as a prerequisite to invoking
the discretionary function exception, demonstrate that a policy judgment actually
was made. The discretionary function exception applies to all acts and omissions
that are susceptible to policy analysis, whether or not that analysis has been
performed on a given occasion.
Fothergill, 566 F.3d at 253.
Here, Evans makes no showing as to whether the conduct at issue was susceptible to policy
analysis. (Docket #34 at 15). On this basis alone, having already found that the conduct was
discretionary, summary judgment is granted and the case dismissed. However, even if the court
goes a step further, it still finds that summary judgment is appropriate. The fact that there is no
federal statute, regulation, or policy requiring property owner permission prior to removing ALB

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uninfested host trees is, arguably, a policy decision to expedite the tree removal process thereby
preventing the spread of ALB. As recognized in the Cooperative Agreement, spread of the ALB
has the potential to cause extensive losses to ornamental and commercial tree species. (Docket
#27-7 at 2). Likewise, the lack of a federal statute, regulation, or policy requiring that tree removal
contractors complete a compliance agreement or be authorized by the DCR is also an arguable
policy decision made to expedite the tree removal process thereby preventing the spread of ALB.
Therefore, because the challenged conduct is both discretionary and policy-related, the
discretionary function exception bars subject matter jurisdiction over this action. See MontijoReyes, 436 F.3d at 24.
IV.

CONCLUSION
For the foregoing reasons, the United States’ Motion for Summary Judgment (Docket #25)

is hereby ALLOWED.

/S/ David H. Hennessy
David H. Hennessy
UNITED STATES MAGISTRATE JUDGE

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