Myers v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C. MYERS, guardian ad litem;  No. 09-56092

L.M., a minor,

Plaintiffs-Appellants, D.C. No.

v.  3:02-cv-01349-

BEN-AJB

UNITED STATES OF AMERICA,

OPINION

Defendant-Appellee.



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 Dis-

trict of Iowa, sitting by designation.

9599

MYERS v. UNITED STATES 9603

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, Washing-

ton, 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.

9604 MYERS v. UNITED STATES

I. BACKGROUND

A. 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 fac-

tual 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 Pro-

tection 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 Agree-

ment (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 Agree-

ment, 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.”

MYERS v. UNITED STATES 9605

plans, sampling plans and QAPPS [Quality Assur-

ance 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 (NAVFACENG-

COM) also uses a Safety and Health Program Manual (the

Manual) for all environmental cleanup operations. The Man-

ual specified, in pertinent part, that “[e]ach NAVFACENG-

COM 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 repre-

sentative who has sufficient knowledge and authority

to review and accept construction safety procedures

shall review HASPs for construction safety require-

ments.

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 ele-

vated 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.

9606 MYERS v. UNITED STATES

Of the 154 samples [taken at Site 1A], only one sam-

ple 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 con-

tractor used the Inductively Couple Plasma—Atomic

Emission Spectroscopy method to identify thallium

in the soil samples. That method sometimes pro-

duces false positives where there are metals in the

sample. In the soil at site 2A, there were high con-

centrations of other metals such as zinc and manga-

nese, which likely caused the false positive test for

thallium. Lead was much more prevalent than thal-

lium in the soil moved to Box Canyon and was con-

sidered 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 Poi-

son’ 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 Poi-

soner (1990); CSI: NY, “Page Turner” (first aired Oct. 1, 2008).

MYERS v. UNITED STATES 9607

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 requir-

ing cleanup. However, the district court found that the thal-

lium 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 ele-

mentary 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 con-

tract 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 respon-

sibility and authority to modify or stop work if working con-

ditions presented a risk to health and safety. The HASP

included requirements for monitoring ambient air and air-

borne 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 land-

fill, 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 appro-

priate for the task. However, the district court failed to note

that the air monitoring device specified did not monitor “total

9608 MYERS v. UNITED STATES

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 trans-

ported to and disposed of in the Box Canyon Landfill, includ-

ing soil from the two sites contaminated with thallium. During

the project, Navy personnel monitoring the project met regu-

larly 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 Fam-

ily 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.”

MYERS v. UNITED STATES 9609

Myers’s house in the family housing area of Camp Pendel-

ton 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 land-

fill, Myers became ill. She suffered, and she continues to suf-

fer, 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 expo-

sure 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 sam-

ples 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 back-

ground 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

9610 MYERS v. UNITED STATES

that, contrary to the Navy’s assertion, while the final report of

sampling showed results of less than one microgram of thal-

lium in some of the samples (identified as a “non-detect”), the

raw data actually indicated results that exceeded one micro-

gram, 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 indi-

cated that eight wipe or “swipe” samples from air condition-

ing 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 pur-

suant 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 trifur-

cated the bench trial into “breach of duty,” “actual and proxi-

mate causation,” and “damages” phases.

During the first phase of the trial, Myers presented evi-

dence 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 neg-

ligently 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.

MYERS v. UNITED STATES 9611

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. Applicability Of The “Discretionary Function”

Exception

1. Standard of review

We review de novo the dismissal of a FTCA suit for lack

of subject matter jurisdiction under the “discretionary func-

9612 MYERS v. UNITED STATES

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 immu-

nity 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 “dis-

cretionary function exception,” which provides immunity

from suit for any claim “based upon the exercise or perfor-

mance 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 decision-

making 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 chal-

lenged 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 discre-

tionary function exception was designed to shield, namely,

actions and decisions based on considerations of public pol-

icy. Terbush, 516 F.3d at 1129 (citing Berkovitz v. United

States, 486 U.S. 531, 536-37 (1988)). The first-prong inquiry

MYERS v. UNITED STATES 9613

“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 pol-

icy 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 direc-

tive.’ ” Id. On the other hand, if there is no statute or policy

directing mandatory and specific action, the court must con-

tinue 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. (inter-

nal 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 accor-

dance with approved work plans, sampling plans, and

QAPPS. The Navy argues that neither source imposed suffi-

ciently specific requirements to divest the Navy of its discre-

tion.

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

9614 MYERS v. UNITED STATES

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 require-

ment for review of HASPs “by a competent person.” A com-

petent 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 NAV-

FACENGCOM is the Naval Facilities Engineering Com-

mand, 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 cer-

tainly no meaningful review by the Navy—would be accom-

plished 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 direc-

tive.” Berkovitz, 486 U.S. at 536. Thus, the Manual “specifi-

cally 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 “equiva-

lence” to a CIH “by training and/or experience” is sufficiently

MYERS v. UNITED STATES 9615

specific to define the requisite training of the person conduct-

ing 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 expe-

rience, that professional judgment is not the same as “discre-

tion.”

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 “discre-

tionary 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 “discre-

tionary 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 dis-

trict court erred in determining that the Navy had met its bur-

den 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,

9616 MYERS v. UNITED STATES

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 direc-

tive,’ ” and the “discretionary function” exception is inappli-

cable. 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 fol-

lowed. 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 compli-

ance 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 rul-

ing on the first phase of the bench trial, the district court did

not specifically address the FFA provisions at issue. The dis-

trict court did conclude, however, that “the evidence showed

that Defendant made policy-based decisions regarding discre-

tionary 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 man-

datory duty on the government is not primarily a factual inquiry, but a

legal one, subject to de novo review.

MYERS v. UNITED STATES 9617

[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 activi-

ties 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 “en-

sure” that all work is performed in accordance with work and

sampling plans. Thus, it does leave that aspect to the govern-

ment’s discretion. The second provision, which undisputably

requires that the QAO “maintain” a log, also is not suffi-

ciently specific as to what must be logged as a “quality assur-

ance 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 provi-

sions on which Myers relies mandates a specific course of

action, that is not the end of the “discretionary function” anal-

ysis. 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 “discretion-

ary function” exception was designed to shield, that is, gov-

ernmental actions and decisions based on considerations of

public policy. Terbush, 516 F.3d at 1129.

9618 MYERS v. UNITED STATES

The district court held that “the evidence showed that

Defendant made policy-based decisions regarding discretion-

ary 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 experi-

ence and training of key employees of the contractor, the fre-

quency 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 responsibil-

ity 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 dis-

cretionary 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 analy-

sis.’ ” 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 consider-

ations 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 precau-

tions is not. . . .” Terbush, 516 F.3d at 1133 (internal quota-

MYERS v. UNITED STATES 9619

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 fire-

fighter safety and public safety considerations in deciding

how to fight a forest fire.” Id. (internal quotation marks omit-

ted). 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 consider-

ations 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 remedia-

tion project, it is well to remember that “matters of scientific

and professional judgment—particularly judgments concern-

ing 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

9620 MYERS v. UNITED STATES

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 argu-

ment 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 dis-

tinguishable, 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 responsibil-

ity 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

MYERS v. UNITED STATES 9621

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 distinguish-

able, because here, unlike the BIA in that case, the Navy pre-

sented 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” excep-

tion. 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 con-

sider 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 reasonable-

ness of the Navy’s conduct for clear error. Hinkson, 585 F.3d

9622 MYERS v. UNITED STATES

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 negli-

gence 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 require-

ment 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 require-

ments of Rule 52(a)(1) are not met. At best, the authority she cites, Gard-

ner 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 nec-

essary factual findings, then this court can find that “the trial court’s appli-

cation 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.

MYERS v. UNITED STATES 9623

takes adequate safety precautions and the work to be per-

formed 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 fore-

seeability 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 thal-

lium 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 unrea-

sonably. California courts have explained the distinction

between “foreseeability” in the “duty” context and “foreseea-

bility” in the “breach” context, as follows: “[W]hile foreseea-

7

This duty does not survive as to a contractor’s employees, but does sur-

vive 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).

9624 MYERS v. UNITED STATES

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 rea-

sonably thoughtful [person] would take account of it in guid-

ing 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 OU-

3 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 partic-

ular plaintiff’s injuries and the particular defendant’s con-

duct.” 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 foreseea-

bility of Myers’s injuries. The district court determined that

it was not foreseeable that Myers would be exposed to thal-

lium 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 haz-

ardous 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.

MYERS v. UNITED STATES 9625

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 trans-

ported 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 OU-

3 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 dis-

trict 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 con-

taminated soil in the first place, so that there was “no [fore-

seeable] 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.

9626 MYERS v. UNITED STATES

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 sup-

pression 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 land-

fill 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 “po-

tential 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 contrac-

tor was actually taking those safety measures, including regu-

lar 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 find-

ings 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 over-

sight 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-

MYERS v. UNITED STATES 9627

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 rea-

sonable 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 contrac-

tor 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 accor-

dance with approved work plans, sampling plans and QAPPS

[Quality Assurance Project Plans].” FFA, ¶ 20.1. Such a fail-

ing was unreasonable, even if the Navy could delegate air

monitoring and responses to excessive dust levels to the con-

tractor. In fact, the record evidence suggests that the contrac-

tor took advantage of the lack of oversight, because the

contractor never stopped work, even when its own dust detec-

tion 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 “excee-

dences” occurred. Again, violation of the mandatory duty to

9628 MYERS v. UNITED STATES

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 “rea-

sonably” 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,” respec-

tively.

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 reassign-

ment 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 errone-

ous 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

MYERS v. UNITED STATES 9629

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 appear-

ance 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 “discre-

tionary 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 con-

taminated 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 dissent-

ing in part:

My most fundamental objection to the majority opinion is

that the facts set forth in the opinion bear little resemblance

9630 MYERS v. UNITED STATES

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.” Len-

tini 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. Simi-

larly, 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 excee-

dences were slight and one appeared to be due to

an unreliable test result. The district court specifi-

cally 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 infer-

ences that may be drawn from facts in the record,”

the district court’s finding cannot be clearly erro-

neous. USAA Federal Savings Bank v. Thacker (In

MYERS v. UNITED STATES 9631

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 find-

ings. The district court specifically relied on evi-

dence that “[s]ampling data revealed few

concentrations of thallium at very low levels.” Dis-

trict Court Opinion, p. 4. That finding was sup-

ported by the testimony of the industrial hygienist

assigned to the project by the contractor.

• 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 con-

trary to the explicit testimony of the assigned indus-

trial 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

9632 MYERS v. UNITED STATES

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 com-

plaints in 1999 from residents of the adja-

cent housing complex or the elementary

school about blowing dust from Box Can-

yon. Of the various health and safety offi-

cials 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 testi-

mony 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 “ac-

tion level” set by the contractor was so low that there

MYERS v. UNITED STATES 9633

were exceedences where there was no visible dust.”

Id., p. 8.

The majority’s version reads:

“The district court found that there were ‘occa-

sions’ 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 par-

ties) 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 accep-

tance of that testimony was completely consistent with its fac-

tfinding function.

• As to the Plaintiff’s specific allegations, the dis-

trict court found that tests conducted in 2000 at

Box Canyon, and at the adjacent housing com-

plex 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

9634 MYERS v. UNITED STATES

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 Opin-

ion, 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 acknowl-

edgment that the district court failed to make findings regard-

ing whether the provision in the Manual was mandatory or

whether it required review of the safety plans by Navy per-

sonnel. 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,

MYERS v. UNITED STATES 9635

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 fac-

tfinding 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 provi-

sions 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 pub-

lic 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 deci-

sions involving routine maintenance, that do not involve pol-

9636 MYERS v. UNITED STATES

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 depart-

ment. See id. In contrast, we observed that “repairing [a] road-

side 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 state-

ment 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 moni-

toring . . .” 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 obliga-

tions 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. Reasonableness of the Navy’s Conduct1

1

I also disagree profoundly with the majority’s discussion of foreseea-

bility. 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 applica-

ble) sufficiently call into question the analysis employed by the majority.

MYERS v. UNITED STATES 9637

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 reit-

erates 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 presup-

poses 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 “mischarac-

teriz[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 Opin-

ion, 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 indus-

trial 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

9638 MYERS v. UNITED STATES

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 opin-

ion concluding that additional factfinding is warranted. How-

ever, 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.