Christine Myers, et al v. USA

Filing

FILED OPINION (ALEX KOZINSKI, JOHNNIE B. RAWLINSON and MARK W. BENNETT) REVERSED AND REMANDED. Judge: JBR Concurring & Dissenting, Judge: MWB Authoring. FILED AND ENTERED JUDGMENT. [7821114]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C. MYERS, guardian ad litem;
L.M., a minor,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.





No. 09-56092
D.C. No.
3:02-cv-01349BEN-AJB
OPINION

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
June 10, 2010—Pasadena, California
Filed July 15, 2011
Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson,
Circuit Judge, and Mark W. Bennett, District Judge.*
Opinion by Judge Bennett;
Partial Concurrence and Partial Dissent by Judge Rawlinson

*The Honorable Mark W. Bennett, District Judge for the Northern District of Iowa, sitting by designation.

9599

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COUNSEL
Stephen T. Cox, Cox and Moyer, Pebble Beach, California,
and Scott J. Allen, LaRiviere, Grubman & Payne, L.L.P.,
Monterey, California, for the plaintiff-Appellant.
Karen P. Hewitt, United States Attorney, S.D. Cal., San
Diego, California; Tony West, AAG Civil Div.; J. Patrick
Glynn, Dir., Torts Branch; Adam Bain, Sr. Trial Counsel,
Torts Branch; Kirsten L. Wilkerson, Charles A. Quinlan III,
John J. Schoemehl, Trial Attorneys, Torts Branch, Washington, D.C., for the defendant-appellee.

OPINION
BENNETT, District Judge:
Plaintiffs seek damages from the United States for injuries
to a child allegedly caused by exposure to the toxic heavy
metal thallium from soil dumped into a landfill adjacent to the
child’s residence and school. The child, by her guardian ad
litem, appeals a decision of the district court finding that the
United States acted “reasonably” and did not breach any duty
in conducting the soil remediation project. The district court
also found that it did not have subject matter jurisdiction,
because the “discretionary function” exception to tort liability
of the United States applies in this case. We reverse and
remand for further proceedings.

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I.
A.

BACKGROUND
Factual Background

Whether or not the district court’s findings of fact are
clearly erroneous depends upon “the entire evidence” in the
record. See United States v. Hinkson, 585 F.3d 1247, 1260
(9th Cir. 2009) (en banc). Therefore, this statement of the factual background identifies both the district court’s findings
and other evidence in the record that is relevant to the review
of the district court’s findings.
As the district court found, in 1989, the Environmental Protection Agency (EPA) placed the United States Marine Corps
Base at Camp Pendelton on the “National Priorities List” of
sites requiring environmental cleanup. The Department of the
Navy entered into a comprehensive environmental cleanup
plan for Camp Pendleton, known as a Federal Facility Agreement (FFA), with the concurrence of the EPA, the California
Department of Toxic Substances Control (DTSC), and the
San Diego Regional Water Quality Control Board (RWQCB).
Although the district court did not refer to such a provision
in its findings, the FFA required, among other things, that the
Navy,1 as the party responsible for the cleanup, designate a
Quality Assurance Officer (QAO) as follows:
20.1 In order to provide quality assurance and
maintain quality control regarding all field work and
sample collection performed pursuant to this Agreement, the Marine Corps agrees to designate a Quality
Control Officer (QAO) who will ensure that all work
is performed in accordance with approved work
1

Unless specific circumstances require otherwise, this opinion refers to
the Navy, the United States Marine Corps, which is part of the Navy, and
the United States, the defendant-appellee in this action, collectively as “the
Navy.”

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plans, sampling plans and QAPPS [Quality Assurance Project Plans]. The QAO shall maintain for
inspection a log of quality assurance field activities
and provide a copy to the Parties upon request.
FFA, ¶ 20.1. The district court did not note in its findings that
the Naval Facilities Engineering Command (NAVFACENGCOM) also uses a Safety and Health Program Manual (the
Manual) for all environmental cleanup operations. The Manual specified, in pertinent part, that “[e]ach NAVFACENGCOM activity shall ensure that plans are reviewed and
accepted prior to issuing the Notice to Proceed.” Manual, ¶
0407.b. The Manual also provided as follows:
c. Reviews. All HASPs [(health and safety plans)]
shall be reviewed prior to initiating site work by a
competent person. Competent person shall mean a
certified industrial hygienist [(CIH)] or equivalent by
training and/or experience. In addition, an EFD/EFA
Construction Safety Manager or designated representative who has sufficient knowledge and authority
to review and accept construction safety procedures
shall review HASPs for construction safety requirements.
Manual, ¶ 0407.c.
Sites at Camp Pendelton requiring cleanup were divided
into “operable units.” “Operable Unit 3” (OU-3) consisted of
five contaminated areas where wastes had been burned. Tests
of the soil in all five areas indicated contamination with toxic
substances, but two, known as Sites 1A and 2A, showed elevated levels of thallium.2 As to the sites showing elevated
levels of thallium, the district court found as follows:
2

There is no question that thallium is highly toxic. According to a
World Health Organization report from 1996, cited in the record, no study
has determined a “no-observed-effect level” for exposure to thallium.

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Of the 154 samples [taken at Site 1A], only one sample exceeded the safe standard for thallium—and not
by much. At Site 2A, 99 soil samples were taken.
. . . Of the samples, only two samples exceed[ed] the
safe standard for thallium. One sample was only a
little high. The other sample was high, but appeared
to be an unreliable test result. The Defendant’s contractor used the Inductively Couple Plasma—Atomic
Emission Spectroscopy method to identify thallium
in the soil samples. That method sometimes produces false positives where there are metals in the
sample. In the soil at site 2A, there were high concentrations of other metals such as zinc and manganese, which likely caused the false positive test for
thallium. Lead was much more prevalent than thallium in the soil moved to Box Canyon and was considered to be the primary risk to human health.
Although the district court found that lead was the primary
risk to human health, the Navy’s “Record of Decision”
(ROD), which set forth its plan to clean up or “remediate” the
sites in OU-3, actually states, “[t]he primary contributors to
the HI [hazard index] [for Site 1A] are arsenic, copper.” Lead
is not mentioned in that list, although concentrations of lead
above established safety levels were also noted. Similarly, the
ROD actually states, “The primary hazard contributors [for
World Health Organization, Environmental Health Criteria 182: Thallium
204-05 (1996). Thallium is designated a “toxic pollutant” pursuant to
§ 307(a)(1) of the Clean Water Act, 40 C.F.R. § 401.15; 33 U.S.C.
§ 1317(a), and is, therefore, designated a CERCLA “hazardous substance”
under 42 U.S.C. § 9601(14). Interestingly, Wikipedia notes, “Because of
its use for murder, thallium has gained the nicknames ‘The Poisoner’s Poison’ and ‘Inheritance Powder’ (alongside arsenic).” http://en.wikipedia
.org/wiki/Thallium. It is not surprising, therefore, that thallium has been
the weapon of choice for various fictional murderers. See, e.g., Agatha
Christie, The Pale Horse (1961); Nigel Williams, The Wimbledon Poisoner (1990); CSI: NY, “Page Turner” (first aired Oct. 1, 2008).

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Site 2A] are manganese, thallium, and zinc.” Again, lead is
not mentioned in that list, although concentrations of lead
above established safety levels were again noted.
The HI for both Site 1A and Site 2A indicated that there
was a potentially “unacceptable” risk to human health requiring cleanup. However, the district court found that the thallium at these sites was believed to be in low concentrations
in the contaminated soil.
The Navy’s plan to clean up or “remediate” the sites in
OU-3 involved excavation of contaminated soils from the
OU-3 sites, transportation of those soils across the base by
dump truck, and dumping of those soils into a landfill known
as Box Canyon Landfill or Site 7. The Box Canyon Landfill
was adjacent to the Wire Mountain Family Housing area of
the Marine Corps base at Camp Pendelton and near an elementary school.
The Navy contracted with IT/OHM to perform much of the
work on the OU-3 project. The Navy’s contract with IT/OHM
required IT/OHM to prepare a HASP (referred to in the contract as a “Site Health and Safety Plan” or SHSP), and
IT/OHM did so. Under the HASP, IT/OHM’s industrial
hygienist (or “Health and Safety Officer”) had on-site responsibility and authority to modify or stop work if working conditions presented a risk to health and safety. The HASP
included requirements for monitoring ambient air and airborne contaminants, including levels for “total dust” that
should have required work stoppages. If dust levels from
monitors placed near the housing area or the school exceeded
a certain level, then the contractor was to determine the
source of the dust, increase the dust control efforts in the landfill, and if increased dust control measures were “ineffective,”
stop soil moving activities in the landfill. The district court
found that the air monitors employed by IT/OHM were appropriate for the task. However, the district court failed to note
that the air monitoring device specified did not monitor “total

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dust,” but only dust particles smaller than a certain size. In
addition to air monitoring requirements, the HASP required
wetting of newly dumped soil to suppress dust and covering
of contaminated soil with layers of uncontaminated soil.
The Manual, ¶ 0407.c, required the Navy to approve the
HASP before work was to begin. Nevertheless, there is no
evidence that either of the Navy’s CIHs ever approved the
HASP for the OU-3 project. One of the Navy’s CIHs, Janet
Corbett, testified that she did not review the HASP. The
Navy’s other CIH, Andrew Bryson, testified that he had no
record showing that he had reviewed the HASP for the OU-3
project and that he did not recall doing so.
During the summer and early fall of 1999, in the course of
executing the OU-3 soil remediation plan, 240,000 cubic
yards of contaminated soil from four polluted sites were transported to and disposed of in the Box Canyon Landfill, including soil from the two sites contaminated with thallium. During
the project, Navy personnel monitoring the project met regularly with personnel from IT/OHM. The district court found
that there were “occasions” in the course of the project when
the air monitoring equipment registered dust levels in excess
of the levels that were supposed to require work stoppages
(called “exceedences” by the parties), but did not note that
record evidence showed that such exceedences occurred more
than 200 times. The district court found that action levels
were set so low that there “were exceedences where there was
no visible dust.” It is undisputed that the work was never
stopped because of these exceedences. The district court did
not find, but the undisputed record evidence shows, that the
Navy’s QAO for the project, Nars Ancog, never looked at the
air monitoring data collected by IT/OHM, nor did anyone else
from the Navy. Residents in the nearby Wire Mountain Family Housing area testified that, at times during the remediation
project in 1999, visible clouds of dust blew from the landfill.
The district court found that “[a]ny visible dust was likely
from uncontaminated soil.”

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Myers’s house in the family housing area of Camp Pendelton was adjacent to the Box Canyon Landfill. Indeed, the
fence line for and access road to the landfill were only about
50 feet from her backyard, where Myers often played. The
landfill was also only about 200 feet from an elementary
school, where Myers played and later attended school. Soon
after the dumping of contaminated soil into the adjacent landfill, Myers became ill. She suffered, and she continues to suffer, from gastrointestinal distress, peripheral neuropathy (a
kind of nerve damage), cognitive deficits, and alopecia (loss
of body hair), all of which are known side-effects of exposure
to thallium.
Some analyses of Myers’s urine in March 2000 indicated
concentrations of thallium well in excess of (as much as ten
times) those expected in the urine of persons who had not
been exposed to thallium. Subsequent tests purportedly
showed no concentrations of thallium in excess of those
expected in a non-exposed person. The raw data for those
later tests was destroyed after this litigation commenced,
however, so that there is no way to determine the reliability
of those tests. The district court described the evidence about
whether Myers’s urine samples revealed normal thallium
levels for humans as “mixed.” District Court Decision at 8.
The district court found that, even if one assumed that exposure to thallium caused Myers’s medical condition, it was not
obvious how or when she was exposed to the toxic metal.
The Navy or its contractors collected post-project samples
in 2000, consisting of over 100 site soil samples, 30 wipe or
“swipe” (dust) samples, ten bulk samples, and even hair samples from Myers’s dog. Consistent with the district court’s
findings, the Navy asserts that only one of these samples,
taken from the elementary school, showed thallium, but the
level shown was actually below the naturally-occurring background level. In contrast, Myers asserts that these samples
were taken months after the end of the OU-3 project and after
an intervening winter of wind and rain. She also contends

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that, contrary to the Navy’s assertion, while the final report of
sampling showed results of less than one microgram of thallium in some of the samples (identified as a “non-detect”), the
raw data actually indicated results that exceeded one microgram, the detection limit used for the tests, so that they should
have been construed as “positives.” Myers also contends that
her expert’s review of the raw data and actual test results indicated that eight wipe or “swipe” samples from air conditioning ducts in Myers’s house and other adjacent houses were
positive for thallium.
B.

Procedural Background

On July 10, 2002, Myers’s guardian ad litem filed suit pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 2671 et seq., against the United States, as the appropriate
party in a FTCA case for claims against the Navy.3 Myers’s
claims were for negligence, nuisance, trespass, strict liability
for ultra-hazardous activity, and battery. The trial judge trifurcated the bench trial into “breach of duty,” “actual and proximate causation,” and “damages” phases.
During the first phase of the trial, Myers presented evidence in support of her allegations that the Navy breached its
duty of care in the following ways: (1) the Navy violated its
own established policies set forth in the Manual by failing to
have a CIH review the HASP for the Camp Pendleton project
before the work of disposing of contaminated soils in the
landfill began; and (2) the Navy’s designated QAO acted negligently by failing to oversee the air (dust) monitoring plan
carried out by IT/OHM. Post-trial briefs were submitted in
May 2006. The case then languished for the next three years.
3

Myers’s suit also included state tort law claims against IT/OHM and
another contractor, the Shaw Group. The Shaw Group filed a suggestion
of bankruptcy and was dismissed. IT/OHM eventually settled the claims
against it and was also dismissed.

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When the district court finally entered its Decision with
Findings of Fact and Conclusions of Law (Decision) on the
first phase of the bench trial, it offered no explanation for the
long delay. The Decision did, however, state that the court
found “that the Government did act reasonably,” leading the
court to find in favor of the Navy and against the plaintiff. In
reaching this conclusion, however, the district court relied, in
part, on the determination of a “causation” issue—whether
Myers was exposed to thallium from the OU-3 project, a
question on which Myers had not been fully heard—in what
was supposed to be the “breach of duty” phase of the trial.
The Decision also stated that, “[m]oreover, Defendant’s
actions fall within the discretionary function exception.” This
ruling was a reversal, without explanation, of the district
court’s denial of the Navy’s motion to dismiss, which had
raised the “discretionary function” exception as a bar to
Myers’s suit. The district court’s Decision on phase one of the
bench trial obviated the need for phases two and three.
This appeal followed.
II.

LEGAL ANALYSIS

This appeal presents two primary issues: (1) Did the district
court commit reversible error in finding that Myers’s claims
were barred by the “discretionary function” exception? and
(2) Did the district court commit reversible error in finding
that the United States acted “reasonably” in fulfilling its duty
to ensure that IT/OHM used proper safety precautions during
the soil remediation project?
A.
1.

Applicability Of The “Discretionary Function”
Exception
Standard of review

We review de novo the dismissal of a FTCA suit for lack
of subject matter jurisdiction under the “discretionary func-

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tion” exception. See Terbush v. United States, 516 F.3d 1125,
1128 (9th Cir. 2008). We review determinations of underlying
facts for clear error. Autery v. United States, 424 F.3d 944,
956 (9th Cir. 2005).
2.

The “discretionary function” exception

[1] The FTCA waives the government’s sovereign immunity for tort claims arising out of the negligent conduct of
government employees acting within the scope of their
employment. Among the exceptions to that waiver is the “discretionary function exception,” which provides immunity
from suit for any claim “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 abused.” 28 U.S.C. § 2680(a). The “discretionary
function” exception insulates certain governmental decisionmaking from “ ‘judicial “second guessing” of legislative and
administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.’ ”
Terbush, 516 F.3d at 1129 (quoting United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 814 (1984)). “The government bears the burden
of proving that the discretionary function exception applies.”
GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th
Cir. 2002); see also Whisnant v. United States, 400 F.3d 1177,
1181 (9th Cir. 2005) (same).
The two-prong test to determine the applicability of the
exception requires the court to determine (1) whether challenged actions involve an element of judgment or choice; and
(2) if a specific course of action is not specified, whether the
discretion left to the government is of the kind that the discretionary function exception was designed to shield, namely,
actions and decisions based on considerations of public policy. Terbush, 516 F.3d at 1129 (citing Berkovitz v. United
States, 486 U.S. 531, 536-37 (1988)). The first-prong inquiry

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“looks at the ‘nature of the conduct, rather than the status of
the actor’ and the discretionary element is not met where ‘a
federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow.’ ” Id. (quoting
Berkovitz, 486 U.S. at 536). “If there is such a statute or policy directing mandatory and specific action, the inquiry comes
to an end because there can be no element of discretion when
an employee ‘has no rightful option but to adhere to the directive.’ ” Id. On the other hand, if there is no statute or policy
directing mandatory and specific action, the court must continue to the second prong of the analysis. Id. The second
prong requires the court to determine whether the discretion
left to the government is the kind of discretion protected by
“public policy,” which is “understood to include decisions
grounded in social, economic, or political policy.” Id. (internal quotation marks omitted). “Even if the decision is an
abuse of the discretion granted, the exception will apply.” Id.
3.

Analysis
a.

Direction of “mandatory and specific” action

Myers argues that there are two sources of mandatory and
specific action in this case: The Manual provision requiring
the Navy to review HASPs and the FFA provision requiring
the project QAO to ensure that all work is performed in accordance with approved work plans, sampling plans, and
QAPPS. The Navy argues that neither source imposed sufficiently specific requirements to divest the Navy of its discretion.
i. Manual provisions. On appeal, Myers asserts that the
Manual required that the HASP be reviewed by the Navy’s
CIH or similar competent person, not just by an employee of
the contractor. The Navy argues that the provision of the
Manual on which Myers relies does not specify how any
review of the HASP was to be conducted and was not specific
enough to remove discretion. The Navy also contends that the

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HASP was reviewed by the contractor’s CIH. The district
court made no findings on this issue.
[2] The relevant provision in the Manual, ¶ 0407.c, uses
the unambiguously mandatory “shall” in stating the requirement for review of HASPs “by a competent person.” A competent person is defined as a CIH or “equivalent by training
and/or experience.” The preceding provision in the Manual
specifies that “[e]ach NAVFACENGCOM activity shall
ensure that plans are reviewed and accepted prior to issuing
the Notice to Proceed.” Manual, ¶ 0407.b. Because the NAVFACENGCOM is the Naval Facilities Engineering Command, and this provision is also cast in the unambiguously
mandatory terms “shall ensure,” this provision imposed upon
the Navy itself a “mandatory and specific” duty to ensure that
plans were reviewed and accepted. See Terbush, 516 F.3d at
1129. In short, read in conjunction, paragraphs 0407.b and
0407.c of the Manual required review of HASPs by the
Navy’s “competent person.” No meaningful review—and certainly no meaningful review by the Navy—would be accomplished by having a contractor’s CIH review the contractor’s
own HASP, particularly if the contractor’s CIH is also the
author of the contractor’s HASP, as is the case here.
[3] This “federal . . . policy specifically prescribes a course
of action for an employee to follow,” review by the Navy of
a contractor’s HASP by a competent person, such that “the
employee has no rightful option but to adhere to the directive.” Berkovitz, 486 U.S. at 536. Thus, the Manual “specifically prescribes a course of conduct,” leaving nothing to the
Navy’s discretion. See Kelly v. United States, 241 F.3d 755,
761 (9th Cir. 2001). The provision is not so uncertain in its
definition of the requisite training of the person conducting
the review that it is “discretionary.” Rather, the provision
expressly requires review by “a certified industrial hygienist
[(CIH)] or equivalent by training and/or experience.” Manual,
¶ 0407.c. (emphasis added). This specification of “equivalence” to a CIH “by training and/or experience” is sufficiently

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specific to define the requisite training of the person conducting the review. Although some professional judgment might
be involved in deciding whether or not a particular person
actually is the “equivalent” of a CIH by training and/or experience, that professional judgment is not the same as “discretion.”
Moreover, in Bolt v. United States, 509 F.3d 1028 (9th Cir.
2007), this court found that a comparable policy provision
was sufficiently mandatory and specific to make the “discretionary function” exception inapplicable. In Bolt, this court
held that the Army’s Snow Removal Policy was sufficiently
“specific and mandatory” to avoid application of the “discretionary function” exception, where it required that snow be
removed from family housing parking areas “once per year in
late February or March.” Bolt, 509 F.3d at 1032-33. This
court found that this provision “expressly impose[d] a specific
and mandatory duty to clear Family Housing Parking Areas
of snow and ice once a year, before the end of March,” so that
the Army had failed its burden under the first prong of the
“discretionary function” analysis. Id. at 1033. This was so,
even though the policy did not specify how the snow was to
be removed or the training or qualifications of the person to
perform the snow removal. See also Vickers v. United States,
228 F.3d 944 (9th Cir. 2000). Even supposing that the Navy
had some discretion in the fulfillment of its duty to review
HASPs, it had no discretion under the policy expressed in the
Manual about whether or not to review the HASP at all and
no discretion for such a review to be performed by anyone
other than a Navy CIH or other competent person.
[4] Therefore, upon de novo review, we hold that the district court erred in determining that the Navy had met its burden on the first prong of the “discretionary function” analysis,
because the Manual did impose “mandatory and specific”
requirements for review by the Navy of the contractor’s
HASP. Terbush, 516 F.3d at 1129.4 Because the Manual
4

The Navy argues that the evidence at trial showed that it adhered to
this requirement, but the Navy has not cited, and this court has not found,

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directed mandatory and specific action, “the inquiry comes to
an end because there can be no element of discretion when an
employee ‘has no rightful option but to adhere to the directive,’ ” and the “discretionary function” exception is inapplicable. Id. (quoting Berkovitz, 486 U.S. at 536).5
ii. FFA provisions. Myers also argues that the FFA
included mandatory and specific provisions regarding the
Navy’s obligation to ensure that safety procedures were followed. Specifically, she relies on the provision of the FFA
requiring the Navy to designate a QAO to oversee field work
and to ensure compliance with work plans and sampling
plans. FFA, ¶ 20.1. The Navy contends that this provision did
not specifically describe how the QAO was to ensure compliance with work or safety plans, nor did it remove discretion
to delegate certain functions to the contractor. The district
court did address this dispute, at least in its 2004 ruling on the
Navy’s motion to dismiss: The district court held that the FFA
did not create any mandatory duty, because it did not specify
how the Navy would carry out its duty to supervise. In its ruling on the first phase of the bench trial, the district court did
not specifically address the FFA provisions at issue. The district court did conclude, however, that “the evidence showed
that Defendant made policy-based decisions regarding discretionary questions of whether to do the remediation work at all,
and whether to do the work itself—or select a contractor.”
any authority suggesting that whether or not the Navy adhered to the
requirement is relevant to whether or not the “discretionary function”
exception applies.
5
The dissent takes the position that we must remand for the district court
to resolve factual issues before a legal ruling can be made on whether the
Navy’s Manual provisions imposed a mandatory duty on the government.
In our view, whether or not the Navy’s Manual provisions imposed a mandatory duty on the government is not primarily a factual inquiry, but a
legal one, subject to de novo review.

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[5] The FFA provision at issue, like the Manual provision
discussed above, uses mandatory language: The QAO “will
ensure that all work is performed in accordance with
approved work plans, sampling plans and QAPPS” and “shall
maintain for inspection a log of quality assurance field activities and provide a copy to the Parties upon request.” FFA, ¶
20.1 (emphasis added). Again, these provisions “specifically
prescribe[ ] a course of action for an employee [the QAO] to
follow,” such that “the employee [the QAO] has no rightful
option but to adhere to the directive.” Berkovitz, 486 U.S. at
536. Unlike the provisions of the Manual discussed above,
however, the first provision, at least, does not “indicate what
the [Navy] must do to comply” with the QAO’s duty to “ensure” that all work is performed in accordance with work and
sampling plans. Thus, it does leave that aspect to the government’s discretion. The second provision, which undisputably
requires that the QAO “maintain” a log, also is not sufficiently specific as to what must be logged as a “quality assurance field activity.”
[6] We affirm the district court’s conclusion that the cited
provisions of the FFA are “discretionary.” Thus, at least as to
the FFA provisions upon which Myers relies, the court must
proceed to the second prong of the “discretionary function”
inquiry. Terbush, 516 F.3d at 1129.
b.

Decisions based on public policy

Even if neither the Manual provisions or the FFA provisions on which Myers relies mandates a specific course of
action, that is not the end of the “discretionary function” analysis. Instead, the court must then consider, in the second
prong of the “discretionary function” inquiry, whether the
judgment left to the agency is of the kind that the “discretionary function” exception was designed to shield, that is, governmental actions and decisions based on considerations of
public policy. Terbush, 516 F.3d at 1129.

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The district court held that “the evidence showed that
Defendant made policy-based decisions regarding discretionary questions of whether to do the remediation work at all,
and whether to do the work itself—or select a contractor.”
The district court apparently also concluded that the Navy
made policy-based decisions about requirements for experience and training of key employees of the contractor, the frequency and degree of oversight by Navy employees, and the
involvement of other federal agencies.
Myers argues that, once the Navy undertook responsibility
for the safety of the project, the execution of that responsibility was not subject to the “discretionary function” exception,
because execution of safety standards is not susceptible to a
policy analysis. The Navy argues that the government’s discretionary oversight of a contractor, even of the contractor’s
compliance with safety standards, is immune from tort suit by
virtue of the “discretionary function” exception and that the
Navy never took on the responsibility of approving every step
of every action of its remediation contractor, but instead relied
on its contractor’s expertise.
[7] This court must determine whether the work of
remediation of contaminated soil would involve protected
policy judgments. Terbush, 516 F.3d at 1133. Specifically,
“[t]he focus of our inquiry is ‘on the nature of the actions
taken and on whether they are susceptible to policy analysis.’ ” Id. (quoting United States v. Gaubert, 499 U.S. 315,
325 (1991)). “[I]t is therefore ‘insufficient for the government
to show merely that some choice was involved in the
decision-making process. The balancing of policy considerations is a necessary prerequisite.’ ” Bolt, 509 F.3d at 1033
(quoting ARA Leisure Servs. v. United States, 831 F.2d 193,
194 (9th Cir. 1987), with alterations and internal quotation
marks omitted by the Bolt court). As explained in Terbush,
“[t]he decision to adopt safety precautions may be based in
policy considerations, but the implementation of those precautions is not. . . .” Terbush, 516 F.3d at 1133 (internal quota-

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tion marks omitted). There is a recognized exception: “The
implementation of a government policy is shielded where the
implementation itself implicates policy concerns, such as
where government officials must consider competing firefighter safety and public safety considerations in deciding
how to fight a forest fire.” Id. (internal quotation marks omitted). This case falls within the general rule, not the exception.
The district court’s conclusion that the Navy’s decision
about whether or not to pursue the remediation project at all
was a discretionary one informed by public policy considerations misses the point, even if it were correct, where Camp
Pendelton was on the EPA’s “National Priorities List” of sites
requiring environmental cleanup. Because “[t]he focus of our
inquiry is on the nature of the actions taken and on whether
they are susceptible to policy analysis,” id. at 1133 (internal
quotation marks omitted), we look at the nature of the actions
in conducting the remediation project, not the decision to
undertake the remediation project.
[8] With the focus properly on the conduct of the remediation project, it is well to remember that “matters of scientific
and professional judgment—particularly judgments concerning safety—are rarely considered to be susceptible to social,
economic, or political policy.” Whisnant, 400 F.3d at 1181;
Bear Medicine, 241 F.3d 1214. More specifically, this court
has held that “implementation” of a course of action is not a
discretionary function. Id. Thus, while the Navy contends that
its determinations about how much safety oversight was
required were susceptible to policy considerations, those
determinations properly fell within the scope of professional
judgments about implementation of the safety plan that were
not susceptible to public policy considerations.
[9] This case is similar in all important respects to Bear
Medicine. What is at issue here, as in Bear Medicine, is not
just a general statutory obligation to promote safety, but “a
failure to effectuate policy choices already made” that are not

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protected under the discretionary function exception. See Bear
Medicine, 241 F.3d at 1215 (quoting Camozzi v.
Roland/Miller and Hope Consulting Group, 866 F.2d 287,
290 (9th Cir. 1989)). Even if the Navy did have discretion in
its monitoring of IT/OHM’s actions, the Navy’s actions in
carrying out its responsibilities were not protected policy
judgments. Id. In other words, “once the [Navy] ha[d]
undertaken responsibility for the safety of [the OU-3] project,
the execution of that responsibility [wa]s not subject to the
discretionary function exception,” and “[t]he decision to adopt
safety precautions may be based in policy considerations, but
the implementation of those precautions is not.” Id. Like the
government’s argument in Bear Medicine, the Navy’s argument here “ ‘would essentially allow the Government to
‘administratively immunize itself from tort liability under
applicable state law as a matter of “policy.”’ ” Id. (quoting
McGarry v. United States, 549 F.2d 587, 591 (9th Cir. 1976)).
[10] The Navy’s attempts to distinguish Bear Medicine are
unavailing. First, the Navy asserts that Bear Medicine is distinguishable, because the agency in that case retained for itself
the responsibility to regularly inspect the work (the logging)
to ensure adherence to basic safety practices, but the Navy did
not do so here. This assertion is simply wrong, and any such
finding is clearly erroneous, because it is without “support in
inferences that may be drawn from the facts in the record.”
Hinkson, 585 F.3d at 1262 (citations and internal quotation
marks omitted). The Manual retained the Navy’s responsibility to review HASPs, and the FFA required the Navy’s QAO
to ensure that all work was performed in accordance with
approved work and sampling plans and to maintain for
inspection a log of quality assurance field activities. Thus, in
this case, as in Bear Medicine, the Navy was required to
ensure that the contractor complied with the safety provisions
of the contract. Bear Medicine, 241 F.3d at 1217. Like the
BIA’s failure in Bear Medicine, the Navy’s failure to have
IT/OHM’s HASP reviewed by the Navy’s own CIH or other
competent person and the failure of the Navy’s QAO to

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inspect any air monitoring were not policy judgments that
Congress intended to protect from FTCA liability. Id.
The Navy also contends that Bear Medicine is distinguishable, because here, unlike the BIA in that case, the Navy presented evidence that policy factors influenced its conduct,
including the efficient allocation of agency resources and the
need to rely on the contractor’s expertise, because the Navy
was not the organization with the required expertise. That
argument is also unavailing, however. This court in Bear
Medicine in fact rejected a contention that “limited resources”
was a policy-based excuse for failure to adhere to accepted
professional standards, id. at 1216-17, and it is no better as a
policy-based excuse for failure to adhere to policy manual and
contractual requirements.
Thus, the Navy has also failed to carry its burden on the
second prong of the “discretionary function” analysis.
4.

Summary

[11] Upon de novo review, we find that the Navy failed to
establish either prong of the “discretionary function” exception. Therefore, we reverse the district court’s determinations
that Myers’s FTCA claim against the Navy is barred by the
“discretionary function” exception and that the court lacked
subject matter jurisdiction over that claim.
B.

Reasonableness Of The Navy’s Conduct

Because we hold that Myers’s FTCA claims are not barred
by the “discretionary function” exception, we must also consider whether the district court erred in holding that the Navy
acted “reasonably.” Again, we reverse.
We review the district court’s decision as to the reasonableness of the Navy’s conduct for clear error. Hinkson, 585 F.3d

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at 1262.6 “The government can be sued ‘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.’ ” Terbush, 516 F.3d at 1128-29
(quoting 28 U.S.C. § 1346(b)(1)). California law is applicable
to Myers’s claim against the Navy, as California is “the law
of the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1).
[12] In FTCA cases, we have recognized that California’s
“peculiar risk” doctrine, described in Restatement (Second) of
Torts §§ 413 and 416, is an exception to the general rule that
a principal is not liable for torts committed by an independent
contractor. Yanez v. United States, 63 F.3d 870, 872 (9th Cir.
1995). “[S]ection 416 liability has been construed as creating
direct liability for the government’s nondelegable duty to
ensure that the contractor employs proper safety procedures.”
Id. at 873 n.1. Thus, “under California’s nondelegable duty
doctrine, the United States is directly liable for its own negligence when it fails to ensure that an independent contractor
6

Myers asserts that the district court’s decision is not entitled to “clearly
erroneous” review, as provided in Rule 52(a)(6) of the Federal Rules of
Civil Procedure, because the district court failed to find facts “specially,”
on various key factual disputes, as required by Rule 52(a)(1). The requirement to find facts “specially” when the action is tried without a jury or
with an advisory jury is undoubtedly to facilitate appellate review. See
Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1090 (9th Cir.
2002). Even so, Myers has cited no authority for the proposition that the
“clearly erroneous” standard of Rule 52(a)(6) is inapplicable if the requirements of Rule 52(a)(1) are not met. At best, the authority she cites, Gardner v. United States, 780 F.2d 835, 838 (9th Cir. 1986), stands for the
proposition that the appropriate remedy for such a failing is to remand the
case for amplification of the district court’s findings. We conclude that, if
the trial court apparently ignored relevant evidence or failed to make necessary factual findings, then this court can find that “the trial court’s application of the correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’
or (3) without ‘support in inferences that may be drawn from the facts in
the record.’ ” Hinkson, 585 F.3d at 1262. In such circumstances, remand
for amplification of the trial court’s findings would not be necessary.

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takes adequate safety precautions and the work to be performed involves special dangers.” Gardner v. United States,
780 F.2d 835, 838 (9th Cir. 1986); McGarry v. United States,
549 F.2d 587, 590 (9th Cir. 1976), cert. denied, 434 U.S. 922
(1977); Thorne v. United States, 479 F.2d 804, 808-09 (9th
Cir. 1973). This nondelegable duty is one of “reasonable
care.” Restatement (Second) of Torts §§ 413 and 416.7
The district court stated, “Under California law, the foreseeability of harm and thus the necessary safety precautions
to prevent the foreseeable harm is key to understanding
Defendant’s duty.” The district court cited no authority for
this “key” proposition, however. The district court found that
the risk that Myers or anyone else would be exposed to thallium from the landfill project was not foreseeable.
The California Supreme Court has defined “peculiar risk”
as a risk “that is peculiar to the work to be done, arising either
from the nature or the location of the work and against which
a reasonable person would recognize the necessity of taking
special precautions.” Privette v. Superior Court, 5 Cal. 4th
689, 695 (1993) (internal quotation marks omitted). Indeed,
“[i]t is the foreseeability of that special risk which justifies the
imposition of liability.” Holman v. State of California, 124
Cal. Rptr. 773, 781 (1975).
The district court was correct that “foreseeability” figures
in both the determination of the alleged tortfeasor’s duty and
whether the tortfeasor breached that duty, that is, acted unreasonably. California courts have explained the distinction
between “foreseeability” in the “duty” context and “foreseeability” in the “breach” context, as follows: “[W]hile foreseea7

This duty does not survive as to a contractor’s employees, but does survive as to others, such as neighboring property owners or innocent
bystanders, after the decision in Privette v. Superior Court, 5 Cal. 4th 689,
21 Cal. Rptr. 2d 72, 854 P.2d 721 (1993). See Toland v. Sunland Housing
Group, Inc., 18 Cal. 4th 253 (1998).

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bility with respect to duty is determined by focusing on the
general character of the event and inquiring whether such
event is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct, foreseeability in evaluating negligence
and causation requires a more focused, fact-specific inquiry
that takes into account a particular plaintiff’s injuries and the
particular defendant’s conduct.” Laabs v. S. Cal. Edison Co.,
175 Cal. Rptr. 241, 251-52 (2009) (internal citations omitted).
[13] Here, prior to the bench trial, in response to Myers’s
motion in limine, the Navy had already conceded that the OU3 project involved “peculiar risk.” Thus, “foreseeability” in
the context of a determination of “duty” was no longer an issue.8
On the other hand, because the first phase of the bench trial
was to determine whether the Navy breached its duty, it was
appropriate for the district court to consider the “fact-specific”
aspect of “foreseeability,” which “takes into account a particular plaintiff’s injuries and the particular defendant’s conduct.” Id.
[14] The district court’s clear error here, in the context of
“breach of duty,” was in relying on what it perceived to be a
lack of proof of causation as determinative of the foreseeability of Myers’s injuries. The district court determined that
it was not foreseeable that Myers would be exposed to thallium from the OU-3 project. This conclusion was based on its
finding that there was no showing that thallium somehow
migrated to Myers’s yard or school, because tests purportedly
showed an “absence” of thallium in her home, her school, and
8

Myers notes that, notwithstanding the Navy’s concession, the district
court stated in its Decision after the first phase of the bench trial that “the
excavation, transportation, and deposition of soils contaminated with hazardous substances such as lead, manganese, or thallium is not necessarily
an inherently dangerous activity.” Notwithstanding this observation, the
district court assumed that the project involved inherently dangerous work,
so that the district court did not clearly err by failing to apply the “peculiar
risk” doctrine.

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her parents’ bodies. The district court also relied on its finding
that Myers had not shown that any thallium that harmed her
came from the Navy’s Box Canyon operations, because
experts purportedly doubted that thallium could be transported in fugitive dust, and there had been only minimal
levels of thallium in the contaminated soil to start with. The
proper question in the “foreseeability” inquiry for purposes of
determining whether the Navy breached its duty, however,
was not whether Myers was exposed to thallium from the OU3 project—a “causation” question that was properly reserved
for a later phase of the trial, and on which Myers had not been
fully heard at the time that the district court made its findings
—but whether it was foreseeable that a person exposed to
thallium would suffer the kinds of injury that Myers suffered.
Id. (“foreseeability” in the context of “breach of duty” “takes
into account a particular plaintiff’s injuries”). Thus, the district court clearly erred by applying the wrong legal standard
in its determination of “foreseeability.” Hinkson, 585 F.3d at
1262.9
The district court also found that it was not foreseeable that
thallium would become windborne in fugitive dust or that
dangerous levels of thallium would be present in migrating
dust, because of the low concentration of thallium in the contaminated soil in the first place, so that there was “no [foreseeable] danger to be prevented.” Even if this “foreseeability”
finding involved application of the correct legal standard, it
was implausible and without support in inferences that may
9

The district court’s finding that thallium was “absent” from Myers’s
environment and its conclusion that, consequently, she had failed to show
“causation,” was at best premature, when “causation” was an issue
reserved for a later phase of the bench trial and an issue on which Myers
had not been fully heard, and was at worst “without support in inferences
that may be drawn from the facts in the record,” Hinkson, 585 F.3d at
1262, where it mischaracterizes the test results. Some of the test results did
show thallium, and the parties disputed whether or not those results were
within the error tolerance of the tests or the result of proper or improper
interpretation of raw results.

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be drawn from the facts in the record, in light of evidence of
the extreme toxicity of thallium and the provisions of the FFA
and ROD establishing safety precautions, including dust suppression measures, to prevent exposure to “nearby receptors.”
See ROD ¶ 2.5.8.1.
The Navy’s argument that this provision of the ROD was
not applicable to the 1999 soil removal and dumping project,
but only applicable to the later “capping” project for the landfill in 2000, is illogical and implausible. It would be illogical
to be concerned with dust suppression only during a capping
project, but not while contaminated soil was actually being
dumped into the landfill. The provision of the ROD that the
Navy contends was applicable to the 1999 soil removal and
dumping project, ROD ¶ 2.4.6.1, which mentions only “potential risk for workers,” but not for “nearby receptors,”
expressly applied only to removal of contaminated soil from
the five contaminated sites in OU-3, not to dumping of the
contaminated soil in the landfill. See ROD ¶ 2.4.5.
The district court relied on its findings that the Navy took
care to prevent dangerous migration of thallium by having in
place adequate safety measures and ensuring that the contractor was actually taking those safety measures, including regular safety meetings and site visits, selecting an experienced
remediation contractor, requiring highly qualified people at
important positions, and allowing other agencies to participate
in the oversight and design of safety precautions. These findings of lack of foreseeability of harm and reasonableness of
the Navy’s conduct, however, are clearly erroneous, in light
of evidence of glaring omissions in the Navy’s safety oversight for the OU-3 project, which the district court simply
ignored.
First, the district court could not have found on this record
that the Navy complied with the requirements in the Manual
to have the HASP for the OU-3 project reviewed by a Navy
CIH or equivalent person. As this court held above, the Man-

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ual required review by a Navy CIH or equivalent person, not
just by the contractor’s CIH, and there is no evidence that
either of the Navy’s CIHs or any other equivalent person from
the Navy ever reviewed the HASP. Indeed, Mr. Bryson, one
of the Navy’s CIHs, testified that, if the HASP had been
reviewed by the Navy, a record of that review would exist on
the computer database that Ms. Corbett maintained, but there
is no such record. Certainly, the Navy has not asserted that
there is any evidence demonstrating that Navy personnel
reviewed the HASP. Evidence that the personnel in question
did not recall reviewing the HASP and the lack of evidence
that would ordinarily indicate that the Navy had reviewed the
HASP lead to no logical or reasonable inference that Navy
personnel did, in fact, review the HASP. Rather, the only reasonable inference from such evidence and the lack of any
other evidence that one or both of the Navy’s CIHs reviewed
the HASP is that the HASP was never reviewed. Violation of
the mandatory duty to review the HASP is plainly a breach of
the duty to exercise reasonable care to ensure that the contractor took reasonable care to follow required safety precautions.
Restatement (Second) of Torts § 416.
Second, there is no evidence that the Navy’s QAO ever
took any steps to ensure that air monitoring samples were
reviewed or that work was stopped if dust thresholds were
exceeded, as required by the provision of the FFA stating that
the QAO must “ensure that all work is performed in accordance with approved work plans, sampling plans and QAPPS
[Quality Assurance Project Plans].” FFA, ¶ 20.1. Such a failing was unreasonable, even if the Navy could delegate air
monitoring and responses to excessive dust levels to the contractor. In fact, the record evidence suggests that the contractor took advantage of the lack of oversight, because the
contractor never stopped work, even when its own dust detection levels were exceeded. Furthermore, Myers has pointed to
evidence that the contractor’s employee responsible for air
monitoring was instructed not to stop work when “exceedences” occurred. Again, violation of the mandatory duty to

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ensure adherence to the safety plans is plainly a breach of the
duty to exercise reasonable care to ensure that the contractor
took reasonable care to follow required safety precautions.
Restatement (Second) of Torts § 416.
[15] The district court’s finding that the Navy acted “reasonably” was clearly erroneous and is reversed. This matter
must be remanded for phases two and three of the bench trial,
“actual and proximate causation” and “damages,” respectively.
C.

Reassignment On Remand

[16] In the event that she obtains a reversal, Myers asserts
that this matter should be remanded for further proceedings
before a different judge, pursuant to 28 U.S.C. § 2106. The
Navy did not address this issue in its briefing. We decline the
invitation to reassign the case to a different judge on remand.
The factors that we consider to determine whether reassignment is appropriate are the following:
(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously [ ]
expressed views or findings determined to be erroneous based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving the appearance of fairness.
Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1133 (9th
Cir. 2008) (quoting Sears, 785 F.3d at 779). We may direct
reassignment of the case, even if we do not question the
impartiality of the judge, in light of unusual factors indicating
that a reassignment is advisable to preserve the appearance of

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justice. Living Designs, Inc. v. E.I. Dupont de Nemours &
Co., 431 F.3d 353, 373 (9th Cir. 2005)
Here, there is no real reason to question the impartiality of
the trial judge, notwithstanding what we have found were
numerous errors in his disposition of the case. Nor are we
convinced that the errors we find are such that the trial judge
would have substantial difficulty in putting out of his mind
his previous findings. We are troubled by the undue—and
unexplained—three-year delay between the conclusion of the
first phase of the bench trial and the issuance of an opinion.
We are not convinced, however, that this is of such gravity as
to warrant reassignment of the case to preserve the appearance of justice.
We conclude that it is not necessary to direct that this case
be reassigned to another judge upon remand. Nevertheless, we
trust that proceedings on remand will proceed expeditiously.
III.

CONCLUSION

Because the district court erred in holding that the “discretionary function” exception barred the Navy’s liability on and
the court’s subject matter jurisdiction over Myers’s claim, and
clearly erred in finding that the Navy acted “reasonably” and
not in breach of its duty in conducting the remediation of contaminated soil in the project at issue here, we reverse and
remand this action for further proceedings. Nevertheless, we
find it unnecessary to reassign the case to a different judge on
remand.
REVERSED AND REMANDED.

RAWLINSON, Circuit Judge, concurring in part, and dissenting in part:
My most fundamental objection to the majority opinion is
that the facts set forth in the opinion bear little resemblance

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to the findings of fact made by the district court following a
bench trial. Rather than adopting the findings of fact made by
the district court, as we are mandated to do absent a showing
of clear error, see Zivkovic v. Southern California Edison Co.,
302 F.3d 1080, 1088 (9th Cir. 2002), the majority completely
rewrites the facts to such an extent that it decides a different
case on different facts than that decided by the district court.
Our precedent is to the contrary—the clear error standard of
review “is significantly deferential, and we will accept the
lower court’s findings of fact unless we are left with a definite
and firm conviction that a mistake has been committed.” Lentini v. California Center for the Arts, 370 F.3d 837, 843 (9th
Cir. 2004) (citation and internal quotation marks omitted).
A few examples will illustrate my point:
•

The district court found that at Site 1A, 154 soil
samples were taken and only one sample
exceeded the safe standard for thallium. Similarly, of the 99 soil samples taken from Site 2A,
only two exceeded the safe standard for thallium.
The district court found that two of the exceedences were slight and one appeared to be due to
an unreliable test result. The district court specifically found that lead was of greater prevalence
“and was considered to be the primary risk to
health.” District Court Opinion, p. 4.

The majority opinion translates the district
court’s finding into a histrionic description of the
poisonous nature of thallium and a reference to the
Navy’s Record of Decision (ROD) to disregard the
district court’s finding. Majority Opinion, pp.
9605-06 and n.2. This approach is the antithesis of
our charge. Indeed, if there is “support in inferences that may be drawn from facts in the record,”
the district court’s finding cannot be clearly erroneous. USAA Federal Savings Bank v. Thacker (In

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Re Taylor), 599 F.3d 880, 888 (9th Cir. 2010). The
district court was not required to parrot the ROD or
any other document or testimony that was part of
the evidence presented. Rather, the district court,
after considering all the evidence, made its findings. The district court specifically relied on evidence that “[s]ampling data revealed few
concentrations of thallium at very low levels.” District Court Opinion, p. 4. That finding was supported by the testimony of the industrial hygienist
assigned to the project by the contractor.

9631

•

The district court found that the air monitors used
by the contractor “were appropriate for the task.”
District Court Opinion, p. 7.

The majority opinion makes what can only be
characterized as an inappropriate contrary finding
that “the air monitoring device specified did not
monitor ‘total dust’ but only dust particles smaller
than a certain size.” Majority Opinion, pp. 9607-08.
However, the majority’s finding on appeal is contrary to the explicit testimony of the assigned industrial hygienist that total dust was measured. The
district court acted completely within its discretion
as the factfinder to credit this testimony rather than
the testimony offered on behalf of the Plaintiffs.
•

The district court found that the contractor’s
industrial hygienist “had on-site responsibility
and authority to stop work if working conditions
presented a risk to health and safety.” District
Court Opinion, p. 4.

The majority opinion concludes that because
neither of the Navy’s industrial hygienists reviewed
the health and safety plan, the Navy failed to meet
its obligations under the governing agreement. See

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Majority Opinion, p. 9608. However, nothing in the
governing agreement required the industrial
hygienist to be a Navy employee.
•

The district court found that:
[t]he Defendant never received any complaints in 1999 from residents of the adjacent housing complex or the elementary
school about blowing dust from Box Canyon. Of the various health and safety officials that routinely visited the site, none
observed conditions causing concerns. A
teacher at the elementary school testified
that her classroom faced the landfill. Daily,
the teacher was in a position to notice
whether dust was spreading towards either
the school grounds or farther to the school
buildings. The school teacher testified that
over the life of the Box Canyon project, she
observed dust coming over the fence onto
the school grounds on only two or three
occasions, and that each time the dust came
over the perimeter fence, it did not
approach the school . . .

District Court Opinion, p. 7.
The district court credited the Navy’s proffered testimony regarding the measures taken to prevent dust
on the site, and specifically credited the testimony of
the assigned industrial hygienist in finding that
“[a]ny visible dust was likely from uncontaminated
soil.” Id. The district court acknowledged that “there
were occasions where the action level for airborne
dust was exceeded . . .” Id., pp. 7-8. However, the
district court attributed that to the fact that the “action level” set by the contractor was so low that there

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were exceedences where there was no visible dust.”
Id., p. 8.
The majority’s version reads:
“The district court found that there were ‘occasions’ in the course of the project when the air
monitoring equipment registered dust levels in
excess of the levels that were supposed to require
work stoppages (called “exceedences” by the parties) but did not note that record evidence showed
that such exceedences occurred more than two
hundred times. . . . It is undisputed that the work
was never stopped because of these exceedences.
. . .[T]he Navy’s QAO for the project, Nars Ancog,
never looked at the air monitoring data collected by
[the contractor] nor did anyone else from the Navy.
Residents in the nearby Wire Mountain Family
Housing area testified that, at times during the
remediation project in 1999, visible clouds of dust
blew from the landfill . . .” Majority Opinion, p.
9608.
This unmitigated and unauthorized appellate factfinding
flies directly in the face of testimony from the assigned
hygienist that the exceedences required work stoppage only if
the dust could not be controlled. The district court’s acceptance of that testimony was completely consistent with its factfinding function.
•

As to the Plaintiff’s specific allegations, the district court found that tests conducted in 2000 at
Box Canyon, and at the adjacent housing complex and school revealed “no elevated levels of
thallium.” Soil samples from Plaintiff’s residence
and “swipe samples” from inside the residence
contained no thallium. The district court noted
that there was “mixed testimony” about the

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results of the urine samples, but found that the
evidence failed to connect any exposure to “the
Government’s negligence in employing and
supervising its contractor.” District Court Opinion, p. 8.
The majority opinion contrasts the following
“assertions” by the Navy and “contentions” by the
Plaintiffs: 1) the samples were taken months after
the project and following a windy, rainy winter; 2)
the Navy’s report was inconsistent with the raw
data; and 3) Plaintiffs’ expert’s opinion was that
thallium was present in Plaintiffs’ residence and
adjacent homes. Majority Opinion, p. 9609-10.
The existence of counter assertions and contentions
between the parties invokes the quintessential factfinding
function of a trial judge, which we review for clear error. See
Zivkovic, 302 F.3d at 1088. Rather than doing so, the majority
completely disregards the district court’s findings, conducts a
retrial on appeal and finds for the Plaintiffs on the bases that
the discretionary function exception did not apply and that the
Navy acted unreasonably during the project. I disagree on
both counts.
1.

The Discretionary Function Exception
a.

The Manual Provisions

The majority opinion’s analysis falters with its acknowledgment that the district court failed to make findings regarding whether the provision in the Manual was mandatory or
whether it required review of the safety plans by Navy personnel. See Majority Opinion, p. 9614. Following a bench
trial, if the findings are inadequate on a contested issue, it is
our obligation to remand the issue to the district court to
resolve the factual dispute. See Zivkovic, 302 F.3d at 1090-91.
Rather than adhering to this basic precept of appellate review,

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the majority opinion completely usurps the function of the
district court. See Fisher v. Roe, 263 F.3d 906, 912 (9th Cir.
2001), abrogated on other grounds in Mancuso v. Olivarez,
292 F.3d 939, 944 n.1 (9th Cir. 2002) (“This case graphically
illustrates one of the bread and butter principles of appellate
review that governs the manner in which we measure the
work of a trial court. Trial courts find facts. We do not.”)
The majority professes to make a legal conclusion that the
Safety and Health Program Manual required review of the
health and safety plan by a Navy hygienist. See Majority
Opinion, p. 9616 n.5. However, in truth no provision of the
manual mandates use of a Navy hygienist. And the district
court judge credited express testimony from the author of the
Manual that there was never any intent to utilize a Navy
hygienist. Once again, the majority completely usurps the factfinding function of the trial judge, disregards the evidence
and retries the case.
Because I would remand for the district court to resolve the
factual issue that must be resolved before a legal ruling can
be made, I dissent from the majority’s conclusion that the
Navy Manual provisions imposed a mandatory duty on the
government.
b.

The Federal Facility Agreement Provisions

The majority opinion concludes, and I agree, that the provisions in the agreement were not sufficiently specific to render
them mandatory requirements. See Majority Opinion, p. 9617.
The majority then proceeds to consider whether the discretion
conferred upon the Navy was based on considerations of public policy. See id., p. 9617, citing Terbush v.United States,
516 F.3d 1125, 1129 (9th Cir. 2008).
In Terbush, we recognized a clear distinction between decisions involving routine maintenance, that do not involve pol-

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icy considerations and more extensive undertakings that do
implicate policy considerations. See id. at 1133-34.
We cited as examples of routine maintenance snow
removal and removing mold from a commissary meat department. See id. In contrast, we observed that “repairing [a] roadside wall involved balancing several policy considerations.”
Id. at 1134.
The majority opinion concludes that the outcome of this
case is dictated by Marlys Bear Medicine v. United States,
241 F.3d 1208 (9th Cir. 2001). See Majority Opinion, pp.
9619-20. However, the majority’s conclusion is irretrievably
tainted by the impermissible factfinding reflected in its statement of facts. To support its conclusion, the majority opinion
relies on “the Navy’s failure to have [the contractor’s health
and safety plan] reviewed by the Navy’s own [industrial
hygienist] or other competent person and the failure of the
Navy’s [Quality Assurance Officer] to inspect any air monitoring . . .” Majority Opinion, p. 9620-21. However, as the
majority previously noted, the district court made no findings
regarding whether the Navy Manual required use of a Navy
hygienist or whether use of the contractor’s hygienist would
satisfy the requirement. Rather than acknowledging that the
lack of findings precludes appellate review, and remanding
for appropriate findings, the majority engages in appellate
factfinding to conclude that the Navy failed to meet its obligations to review the contractor’s health and safety plan. See
Majority Opinion, pp. 9615-16. I cannot co-sign this blatant
departure from the confines of appropriate appellate review.
2.
1

Reasonableness of the Navy’s Conduct1

I also disagree profoundly with the majority’s discussion of foreseeability. However, I will not unnecessarily lengthen my dissent by detailing
my different view on this point because the majority’s wholesale disregard
of the district court’s factual findings (and lack of findings where applicable) sufficiently call into question the analysis employed by the majority.

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As an initial matter, the majority concludes that failure by
the district court to make adequate findings on this issue
would support a finding of clear error. See Majority Opinion,
p. 9622 n.6. Although the majority cites United States v.
Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) to support this
conclusion, Hinkson says no such thing. Rather, Hinkson reiterates that on appeal the factual findings of the district court
are reviewed. See id. at 1263 (“[W]e look to whether the trial
court’s resolution . . . resulted from a factual finding that was
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.”). This test presupposes the existence of reviewable factual findings. In the
absence of adequate factual findings, Zivkovic instructs us to
remand to the district court.
Having cleared the way by misplaced reliance on Hinkson,
the majority then unabashedly retries the case. For example,
the majority opinion accuses the district court of “mischaracteriz[ing] the test results regarding the presence of thallium.
Majority Opinion, pp. 9624-26. However, the record reflects
that the district court credited the testimony of the Navy’s
experts over that of the Plaintiffs’ experts. See District Court
Opinion, p. 8. In fact, the majority concedes that there was a
dispute between the parties on this point. See Majority Opinion, p. 9625 n.9. When a trier of fact resolves such a dispute,
no clear error occurs. See Anderson v. City of Bessemer City,
470 U.S. 564, 574 (1985) (“Where there are two permissible
views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.”) (citations omitted).
The other two bases supporting the majority’s conclusion
are similarly deficient. See Majority Opinion, pp. 9626-28. As
previously discussed, because the majority recognizes that
there were not adequate findings made regarding the industrial hygienist requirement, the matter should be remanded.
The discussion regarding the air monitoring samples is simply
a reiteration of the impermissible reweighing of the facts
described above. In sum, the majority opinion’s analysis and

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final conclusions are irreversibly tainted by its failure to
adhere to the fundamental precepts of appellate review.
Although I agree that additional factfinding is warranted, it
should be done by the district court and not by this panel.
Accordingly, I concur in that portion of the majority opinion concluding that additional factfinding is warranted. However, I would remand the case to the district court for that
additional factfinding rather than direct a verdict for Plaintiffs
as the majority has done. I also agree that there is no need to
assign the case to a different judge on remand. For the reasons
discussed, I respectfully dissent from the balance of the
majority opinion.