GEORGE EVANS vs. MAYER TREE SERVICE, INC., & others. [Note 1]

HENRY, J. During a State and Federal cooperative effort to control an infestation of the Asian longhorned beetle, the Commonwealth entered into a contract with Mayer Tree Service, Inc. (Mayer), to remove infested and high risk host trees. Mayer subcontracted some of that work to Marquis Tree Service, Inc. (Marquis). On February 10 and 11, 2009, Marquis's work was overseen by a Federal employee, Crystal Franciosi, who directed Marquis to cut trees on George Evans's property. Evans, who had not given permission for the removal of his trees, then commenced parallel cases, one in State court against Mayer and

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Marquis for the willful trespass to trees, [Note 2] and the other in Federal court against Franciosi, the United States of America, and the United States Department of Agriculture (USDA) under the Federal Tort Claims Act. Following the final decision on the merits by the United States Court of Appeals for the First Circuit that the Federal defendants were protected from suit by sovereign immunity, see Evans v. United States, 876 F.3d 375, 383-384 (1st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018), this appeal requires that we address, on a report of the case following a partial grant of summary judgment in the State court case, whether Mayer and Marquis have derivative immunity. [Note 3] Because Marquis followed Franciosi's directions and because the First Circuit has held that Franciosi's directions were authorized, we affirm the order granting partial summary judgment.

Background. [Note 4] Our decision in a prior appeal of this matter, Evans v. Mayer Tree Serv., Inc., 89 Mass. App. Ct. 137 (2016), and the appellate decision in the Federal court case, Evans v. United States, 876 F.3d at 375, both describe in detail the background of this case. We provide an overview of the facts pertinent to our review of the immunity question. In 2008, an invasive insect known as the Asian longhorned beetle was discovered in the Worcester area. The State and Federal governments issued orders relative to controlling the beetle. Those orders established a quarantined area. The State order also included the following provisions: (1) the Commissioner of the Department of Conservation and Recreation (DCR) and the Commissioner's duly authorized agents or designees could "enter upon any land" to carry out the order, and (2) DCR could "authorize, under separate agreements, DCR's duly authorized agents or designees . . . to enter upon the [quarantined area] and undertake activities necessary for suppressing, controlling and eradicating" the beetle. [Note 5]

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Around the same time, DCR entered into a cooperative agreement with the USDA and the USDA's Animal and Plant Health Inspection Service (APHIS). Among other responsibilities, DCR was responsible for "[s]ecur[ing] a cost competitive tree removal contract" and "[p]rovid[ing] the resources to manage and administer the contract." Both DCR and APHIS agreed to "[p]rovide personnel to accomplish operational activities and objectives . . . as determined and agreed to [by DCR] and APHIS." In addition, both DCR and APHIS were responsible for "[t]he destruction of infested and high risk host trees." Significantly, this cooperative agreement did not require Federal employees to obtain property owner permission before removing trees. Evans v. United States, 876 F.3d at 381-382.

Pursuant to its cooperative agreement with USDA and APHIS, DCR secured a contract with Mayer (State contract). Mayer agreed to provide tree removal services in accordance with specifications that DCR provided. One of those specifications provided that "[a]ll Asian Longhorned Beetle Program marked or designated trees shall be cut." Another specification provided that Mayer "shall not enter any private property unless [Mayer] is in receipt of a Permission Slip from the property owner substantially in the same form as Exhibit C," however, no "Exhibit C" was attached to the specifications. Mayer, in turn, entered into a subcontract with Marquis wherein Marquis also agreed to comply with the same specifications; this subcontract also lacked an "Exhibit C."

While the State contract specifications prohibited Mayer and Marquis from entering private property unless they were "in receipt of" a permission slip from the property owner, Mayer and Marquis offered evidence that in practice they never received those permission slips. Instead, the tree removal work was overseen

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by field monitors -- some of whom were DCR employees and some of whom were USDA employees -- who told Mayer and Marquis which trees to cut. As testified to by Franciosi and representatives of Mayer and Marquis at their depositions, Mayer and Marquis cut whatever trees that they were told to cut. [Note 6] The USDA and DCR were responsible for permission slips and, according to Franciosi and Mayer and Marquis representatives, the practice was that the USDA and DCR monitors, not Mayer or Marquis personnel, were to speak with property owners.

Franciosi testified at her deposition that she received a new assignment each morning from her supervisor. That assignment would consist of a map of properties and a computer printout with the corresponding addresses and property owners, as well as an indication of whether the property owners had given permission to cut their trees. Based on those materials, she "told the contractors [such as Mayer and Marquis] what they needed to do for the day . . . [and] what trees to take down." There is no dispute that on February 10 and 11, 2009, she told Marquis to cut Evans's trees and that Evans had not provided DCR or USDA with a permission slip.

Discussion. The parties dispute whether derivative immunity applies in this case. The Superior Court judge concluded that, "[b]ecause Marquis merely carried out what Franciosi chose to do . . . and did so under her supervision and control, derivative immunity applies." Mayer and Marquis argue that this is the correct application of the standard for derivative immunity outlined in Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940). Evans argues that a subsequent United States Supreme Court case, Boyle v. United Techs. Corp., 487 U.S. 500 (1988), clarified Yearsley and that we should thus instead look to Boyle. Mayer and Marquis disagree and argue that Yearsley and Boyle actually involve two different defenses.

We first address whether Boyle clarified Yearsley or whether the two cases involve two different defenses. In Yearsley, 309 U.S. at 20-21, and the more recent case of Campbell-Ewald Co. v.

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Gomez, 577 U.S. 153, 166-169 (2016), the Supreme Court concluded that there is no liability on the part of a contractor who performs work for the Federal government, so long as authority was validly conferred on the contractor by the Federal government and the contractor did not exceed that authority. In Yearsley, supra at 20, there was no dispute that the contractor performed as required under its contract. In contrast, in Campbell-Ewald Co., supra, there were genuine issues of material fact as to what was required under the contract and, thus, whether the contractor was derivatively immune from suit.

In Boyle, 487 U.S. at 502, on the other hand, the issue was whether Virginia tort law was preempted by Federal common law where the defendant, a military contractor, designed a helicopter to meet Federal government specifications for a procurement contract. Id. at 509. The plaintiff sought to hold the contractor liable for breach of its duty of care to design a different escape hatch mechanism. The Supreme Court concluded that State law may be "displaced" where there is a uniquely Federal interest and a significant conflict between that interest and the operation of State law. See id. at 507.

Courts have analyzed Yearsley and Boyle defenses separately. See, e.g., Cunningham v. General Dynamics Info. Tech., Inc., 888 F.3d 640, 646 n.4 (4th Cir.), cert. denied, 139 S. Ct. 417 (2018); Cabalce v. Thomas E. Blanchard & Assocs., Inc., 797 F.3d 720, 731-732 (9th Cir. 2015). One United States Circuit Court of Appeals has stated that Boyle "refined" Yearsley in the context of government military contracts and then assumed without deciding that Boyle applied to the nonmilitary contract at issue there, given the unique Federal interest in disaster relief after the September 11, 2001, attacks. See In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 196 (2d Cir. 2008). We agree with the defendants that the present case falls squarely within the Yearsley rubric and that Boyle does not govern. First, Yearsley addresses derivative sovereign immunity, while Boyle explicitly states that it does not address immunity and instead addresses preemption. See Boyle, 487 U.S. at 505 n.1. See also In re U.S. Office of Personnel Mgt. Data Sec. Breach Litig., 928 F.3d 42, 80 (D.C. Cir. 2019) (Williams, J., concurring). This conclusion is bolstered by the analysis in Campbell-Ewald Co., 577 U.S. at 166-168; the Supreme Court analyzed Yearsley immunity without reference to Boyle. The Court concluded that the critical aspect of Yearsley immunity was "the contractor's performance in compliance with

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all federal directions." Id. at 167 n.7. We thus conclude that Yearsley and Boyle present separate defenses and analyze whether the Mayer and Marquis have derivative immunity under Yearsley.

Under Yearsley, 309 U.S. at 20-21, we first address whether authority was validly conferred on Mayer and Marquis by the Federal government. Authority is "'validly conferred' on a contractor if Congress authorized the government agency to perform a task and empowered the agency to delegate that task to the contractor, provided it was within the power of Congress to grant the authorization." Cunningham, 888 F.3d at 646-647. Here, the First Circuit already concluded that APHIS had authority to partner with DCR and that "DCR's quarantine order authorized APHIS to 'undertake activities necessary [for stopping the spread of (the Asian longhorned beetle),] including removing or causing to be removed . . . all [trees] that may be or have the potential to be infested or infected by [the Asian longhorned beetle]." Evans v. United States, 876 F.3d at 381. Any effort to obtain permission "was a courtesy -- not the product of any official federal policy." Id. at 382. The First Circuit further concluded that even if Franciosi's decision to direct Marquis to remove Evans's trees was the product of human error, the "decision to cut down [Evans'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." Id. at 384. Evans is precluded from arguing otherwise in this case. [Note 7] Where APHIS partnered with DCR, DCR secured a tree removal contract with Mayer, and Mayer subcontracted with Marquis, and DCR also granted authority to Federal officials, including Franciosi, to supervise the tree cutters, authority was validly conferred on Mayer and Marquis by the Federal government.

The second prong of Yearsley, 309 U.S. at 21, whether the contractor exceeded its validly conferred authority, usually turns on whether the contractor complied with its contractual obligations

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to the Federal government. See, e.g., Cunningham, 888 F.3d at 647-648 (contractor adhered to terms of its contract); Ackerson v. Bean Dredging LLC, 589 F.3d 196, 206-207 (5th Cir. 2009) (same). Contrast In re U.S. Office of Personnel Mgt. Data Sec. Breach Litig., 928 F.3d at 68-71 (on motion to dismiss, no immunity where complaint alleged that contractor failed to comply with contractual obligations); Cabalce, 797 F.3d at 732 (limiting Yearsley immunity to "cases in which a contractor had no discretion in the design process and completely followed government specifications" [quotation and citation omitted]); In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 345 (4th Cir. 2014), cert. denied, 135 S. Ct. 1153 (2015) (finding genuine issue of material fact where record did not contain sufficient information to conclude whether plaintiff acted in conformity with its contract or whether military permitted plaintiff to deviate from its contractual obligations in certain circumstances).

In this case, however, there was no contract between the Federal government and Mayer and Marquis. Instead, our inquiry focuses on what the Federal government authorized. As noted above, the First Circuit already concluded that the cooperative agreement authorized APHIS to cause trees to be removed and that Franciosi had the discretion to decide to cut Evans's trees without his permission. That is what she decided to do, whether by mistake or not, and she implemented that decision by directing Mayer and Marquis to cut Evans's trees. Mayer and Marquis followed that instruction. Whether Mayer and Marquis had other obligations under the State contract is not controlling. We conclude that Mayer and Marquis did not exceed the authority validly conferred on them by the Federal government through its employee and that they have derivative immunity. The order dated December 18, 2018, granting partial summary judgment is affirmed.

So ordered.