George Evans v. United States

In 2009, Respondent the United States of America cut down twenty-five mature and valuable trees from the property of Petitioner George Evans incidental to the Asian Longhorned Beetle eradication program. But Evans’ trees were not infested, and the government violated its own policy by not obtaining Evans’ permission prior to removing his trees. Evans sued under the Federal Tort Claims Act. The courts below granted summary judgment to the government based on the discretionary-function exception to the Federal Tort Claims Act, incorrectly finding that the government’s trespass onto Evans’ property and destruction of his trees was authorized as a matter of discretion. The questions presented are as follows:

1. Whether this Court’s prior precedent applying the discretionary-function exception to the Federal Tort Claims Act to government employees acting on the operational level should be modified to accord with Justice Scalia’s concurrence opinion in United States v. Gaubert, 499 U.S. 315 (1991).

2. Whether this Court should resolve the Circuit split regarding which party has the burden of proof under the discretionary-function exception to the Federal Tort Claims Act.

3. Whether Gaubert should be clarified to reaffirm that government policy as applicable to the discretionary-function exception may be established on a case-by-case basis and formed in partnership with a state government based on local conditions under that state’s statute, regulation, or policy.