Emily Nanouk v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMILY NANOUK, No. 19-35116

Plaintiff-Appellant,

D.C. No.

v. 3:15-cv-00221-RRB

UNITED STATES OF AMERICA,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Argued and Submitted June 4, 2020

Anchorage, Alaska

Filed September 4, 2020

Before: Morgan Christen, Paul J. Watford, and

Bridget S. Bade, Circuit Judges.

Opinion by Judge Watford

2 NANOUK V. UNITED STATES

SUMMARY *

Federal Tort Claims Act

The panel vacated the district court’s dismissal of a

Federal Tort Claims Act (“FTCA”) action brought against

the United States by a plaintiff who alleged that her property

was contaminated by hazardous chemicals negligently

released from the site of a nearby military facility.

The district court dismissed for lack of subject matter

jurisdiction after determining that the claims were barred by

the FTCA’s discretionary function exception, a provision

that precludes jurisdiction when the plaintiff’s claims are

based on certain discretionary acts of government

employees.

The panel agreed with the district court that the

discretionary exception barred plaintiff’s claims to the extent

they were predicated on two of the three acts she challenged

as negligent. The panel held further, however, that the

government had not established that the exception barred

plaintiff’s claims in their entirety.

Specifically, the panel held that the discretionary

function exception protected the government’s alleged

failure to supervise contractors during the military facility’s

operation, as well as its abandonment of the property

between the facility’s closure in 1978 and 1990. Based on

the current record, the panel could not conclude that the

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

NANOUK V. UNITED STATES 3

discretionary function also applied to the government’s

failure to identify and remediate the hot spot in a timely

manner after 1990. The panel remanded for further

proceedings.

COUNSEL

Samuel J. Fortier (argued) and Naomi Palosaari, Fortier &

Mikko P.C., Anchorage, Alaska, for Plaintiff-Appellant.

Albert K. Lai (argued), Trial Attorney; Bridget B. Lipscomb,

Assistant Director; J. Patrick Glynn, Director; Thomas G.

Ward, Deputy Assistant Attorney General; Joseph H. Hunt,

Assistant Attorney General; Environmental Torts, United

States Department of Justice, Washington, D.C.; for

Defendant-Appellee.

OPINION

WATFORD, Circuit Judge:

This is a suit brought by Emily Nanouk against the

United States under the Federal Tort Claims Act (FTCA).

She alleges that her property has been contaminated by

hazardous chemicals negligently released from the site of a

nearby military facility. The district court dismissed

Nanouk’s suit for lack of subject matter jurisdiction after

determining that her claims are barred by the FTCA’s

discretionary function exception, a provision that precludes

jurisdiction when the plaintiff’s claims are based on certain

discretionary acts of government employees. We agree with

the district court that the discretionary function exception

bars Nanouk’s claims to the extent they are predicated on

4 NANOUK V. UNITED STATES

two of the three acts she challenges as negligent. But on the

record before us, the government has not established that the

exception bars Nanouk’s claims in their entirety. We

therefore vacate the judgment dismissing Nanouk’s case and

remand for further proceedings.

I

Nanouk’s property is a 160-acre Alaska Native allotment

near the village of Unalakleet, a small community on Norton

Sound roughly 400 miles northwest of Anchorage. Since the

1960s, Nanouk has used the property for traditional

subsistence activities such as hunting, fishing, and berry-

picking. In the 1980s, Nanouk built a small cabin on her

property, which she and her family reached by traveling

down a trail that runs from the main road through the site of

a former United States Air Force facility known as the North

River Radio Relay Station. The station was part of the White

Alice Communications System, a network of 70 radio relay

sites built during the Cold War to enable early warning of

potential Soviet air attacks on the continental United States.

By the 1970s, satellite technology had rendered the White

Alice system obsolete, leading the Air Force to shut the

network down. The North River Station closed in 1978, and

the Air Force has not used the site since then.

In the first few years after the North River Station closed,

the Air Force did little to monitor the condition of the

unmanned site, other than receiving reports from a caretaker

sent out to inspect the property on a weekly basis. In 1981,

the General Accounting Office issued a report that criticized

the Air Force’s failure to protect and maintain a number of

the shuttered White Alice sites, including the North River

Station. The report noted that the sites still contained

hazardous chemicals, such as highly toxic polychlorinated

biphenyls (PCBs), which could result in environmental

NANOUK V. UNITED STATES 5

contamination or personal injury if not removed. The report

prompted the Air Force, with the help of the Army Corps of

Engineers, to begin the process of remediating

contamination at the North River Station. In 1982, for

example, the Army Corps removed 500 gallons of

transformer oil containing PCBs from the North River site,

and in 1984 it removed some of the PCB-contaminated soil

from the site. Surveys taken in 1987 and 1989 revealed that

6,700 cubic yards of contaminated soil remained at the site.

While the Air Force and the Army Corps directed most

of their remediation efforts toward other radio relay sites

during the 1980s, they turned their attention back to the

North River Station in 1990. In 1993, an Army Corps

contractor removed some contaminated soil from the station

but went out of business before it could finish the

remediation. A different contractor then took over in 1995,

but also went out of business before completing the job. The

Air Force and the Army Corps subsequently released a new

action plan for environmental remediation at the North River

Station in 2001, and clean-up activities resumed shortly

thereafter.

No one knows exactly when, but sometime between the

early 1980s and 2003, PCBs migrated from the North River

Station onto Nanouk’s allotment. The migration occurred

because the trail that Nanouk and her family used to access

her cabin ran directly through a “hot spot” of PCB-

contaminated soil on the North River Station grounds. The

vehicles used by Nanouk and her family picked up the PCBs

and carried them from the station to Nanouk’s allotment,

thereby contaminating the soil around her cabin.

Nanouk did not learn about the presence of PCBs on her

property until 2003. In July of that year, she informed the

Air Force that an area along the trail was marked by a strong

6 NANOUK V. UNITED STATES

chemical odor. The Air Force investigated and found that

the soil in the area contained exceptionally high

concentrations of PCBs (over 40,000 parts per million), far

in excess of levels considered safe. Further testing revealed

that PCBs had been spread along the trail from the hot spot

to the doorstep of Nanouk’s cabin.

The Air Force thereafter undertook extensive

environmental remediation to remove PCB-contaminated

soil from both the North River Station and Nanouk’s

allotment. By 2005, the remediation efforts on Nanouk’s

allotment were complete, as they had reduced PCB

contamination to less than one part per million, the level

environmental authorities regard as safe even for high-

occupancy areas. See 40 C.F.R. § 761.61(a)(4)(i)(A). In

2013, Nanouk requested further testing of the soil around her

cabin. Those tests confirmed that PCBs, although still

present, remained at levels below one part per million.

Nanouk sued the United States in 2015, alleging claims

for trespass and nuisance and seeking an award of money

damages. Despite assurances from federal and state

authorities that her property is safe to use, Nanouk no longer

feels comfortable using her allotment for traditional

subsistence activities. She and several family members have

experienced serious health problems over the years, and

Nanouk believes those ailments are attributable at least in

part to exposure to PCBs.

After the parties completed discovery, the government

filed a motion to dismiss Nanouk’s suit for lack of subject

matter jurisdiction on the ground that the discretionary

NANOUK V. UNITED STATES 7

function exception bars Nanouk’s claims. The district court

agreed and dismissed Nanouk’s action. 1

On appeal, Nanouk challenges the district court’s

conclusion that her claims are barred by the discretionary

function exception, a ruling we review de novo. Gonzalez v.

United States, 814 F.3d 1022, 1028 n.2 (9th Cir. 2016).

II

The FTCA waives the United States’ sovereign

immunity for claims seeking money damages “for injury or

loss of property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee of

the Government while acting within the scope of his office

or employment, under circumstances where the United

States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or

omission occurred.” 28 U.S.C. § 1346(b)(1); see also

§ 2674. The Act defines the term “employee of the

Government” to include employees of the military

departments but to exclude employees of independent

contractors. § 2671.

The FTCA’s broad waiver of sovereign immunity is

subject to a number of exceptions, including the

1

In its motion to dismiss, the government invoked what it

characterized as three FTCA jurisdictional provisions: the discretionary

function exception, the FTCA’s “exclusion” of liability for the acts of

independent contractors, and the Act’s “exclusion” of liability on the

basis of strict liability. On appeal, the government argues that the district

court relied on all three provisions. But Nanouk’s claims were not

predicated upon vicarious liability for the acts of independent

contractors, nor were they based on strict liability. Thus we do not read

the district court’s order as referring to these theories.

8 NANOUK V. UNITED STATES

discretionary function exception at issue here. That

exception preserves the United States’ immunity from suit

as to 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.” § 2680(a). The government bears the burden of

establishing that the exception applies. Chadd v. United

States, 794 F.3d 1104, 1108 (9th Cir. 2015).

We employ a two-step test to determine whether the

discretionary function exception is applicable. Under the

first step, we ask whether the act or omission on which the

plaintiff’s claim is based was discretionary in nature—that

is, whether it “involve[d] an element of judgment or choice.”

Berkovitz v. United States, 486 U.S. 531, 536 (1988). If the

act did not involve an element of judgment or choice, the

analysis ends there and the plaintiff’s claim may proceed.

For “if the employee’s conduct cannot appropriately be the

product of judgment or choice, then there is no discretion in

the conduct for the discretionary function exception to

protect.” Id.

If the employee’s conduct involved an element of

judgment or choice, we turn to the second step of the

analysis, which asks whether the discretionary decision

challenged by the plaintiff “is of the kind that the

discretionary function exception was designed to shield.” Id.

Congress sought to preclude courts from second guessing

discretionary judgments “grounded in social, economic, and

political policy.” United States v. Varig Airlines, 467 U.S.

797, 814 (1984). The government accordingly prevails at

step two if it can show that the decision challenged by the

plaintiff is “susceptible to policy analysis.” United States v.

Gaubert, 499 U.S. 315, 325 (1991).

NANOUK V. UNITED STATES 9

III

Before we can apply the two-step test, we must identify

which specific actions or omissions the plaintiff alleges were

negligent or wrongful. Young v. United States, 769 F.3d

1047, 1053 (9th Cir. 2014). Nanouk predicates her claims

on three distinct actions—or, as she describes them in her

briefs, governmental “failures”—that she alleges created the

hot spot and led to the contamination of her property. First,

she contends that during the period of the North River

Station’s operation (1957–1978), the Air Force failed to

prevent PCBs, which are found in used transformer oil, from

being dumped on the ground. Second, she asserts that after

the station closed, the Air Force and the Army Corps

essentially abandoned the site, leaving behind barrels

containing PCBs and allowing their contents to leak into the

soil. Third, she argues that once the Air Force and the Army

Corps redirected their remediation efforts toward the North

River Station in 1990, they failed to discover and clean up

the hot spot in a timely manner.

As explained below, we agree with the district court that

the discretionary function exception bars liability predicated

on the first two actions. But at this stage of the proceedings,

the government has not established that the exception bars

liability predicated on the last of the challenged actions.

A. Disposal of PCBs During the Station’s Operation

We begin with Nanouk’s contention that the Air Force

negligently permitted used transformer oil containing PCBs

to be dumped on the ground. One threshold problem with

this theory of liability is that the employees who dumped

PCBs on the ground were not employees of the government.

The Air Force hired private contractors to operate and

maintain the North River Station and delegated to them

10 NANOUK V. UNITED STATES

responsibility for disposing of hazardous wastes such as

PCBs. Nanouk does not allege that the contractors’

employees can be considered employees of the government

under the FTCA, so she cannot predicate her claims on the

contractors’ alleged negligence in dumping PCBs on the

ground. See Logue v. United States, 412 U.S. 521, 527–28

(1973). Nanouk instead bases her claims, as she must, on

the alleged negligence of Air Force personnel in supervising

the contractors—in particular, on their failure to detect and

stop the contractors’ environmentally harmful disposal

practices.

At the first step of the analysis, we conclude that the

challenged conduct was discretionary in nature. The

Supreme Court has held that discretion is absent “when a

federal statute, regulation, or policy specifically prescribes a

course of action for an employee to follow.” Berkovitz,

486 U.S. at 536. Put differently, to be classified as non-

discretionary, the employee’s conduct must be governed by

a statute, regulation, or policy “directing mandatory and

specific action,” Terbush v. United States, 516 F.3d 1125,

1129 (9th Cir. 2008), which leaves the employee “no rightful

option but to adhere to the directive,” Berkovitz, 486 U.S.

at 536. In this case, no controlling statute, regulation, or

policy specifically prescribed how Air Force personnel were

to supervise a contractor’s waste disposal practices, much

less required Air Force personnel to halt a contractor’s

dumping of PCBs on the ground. The absence of a

mandatory and specific directive of that sort precludes

Nanouk from prevailing at step one in the context of a

negligent supervision claim. See Alinsky v. United States,

415 F.3d 639, 647 (7th Cir. 2005); Bibeau v. Pacific

Northwest Research Foundation, Inc., 339 F.3d 942, 945–46

(9th Cir. 2003) (per curiam); Kirchmann v. United States,

8 F.3d 1273, 1276 (8th Cir. 1993).

NANOUK V. UNITED STATES 11

Nanouk’s best support for the existence of a mandatory

and specific directive is Air Force Regulation 19-1, but that

regulation merely established general policies and programs

relating to environmental protection. It did not require the

Air Force to prohibit independent contractors from dumping

PCBs on the ground. As relevant here, the most specific of

the regulation’s directives required the Air Force to “[m]ake

all practical efforts” to “[d]ispose of or discharge pollutants

in a manner that will not . . . expose people to concentrations

of any agent (chemical, physical, or biological) hazardous to

health.”

There are two reasons why this provision did not

mandate that Air Force personnel stop contractors from

dumping PCBs on the ground. First, during the period of the

North River Station’s operation, there were no regulations

governing the use and disposal of PCBs; such regulations did

not take effect until after the station closed. See 43 Fed. Reg.

7150 (Feb. 17, 1978); 44 Fed. Reg. 31514 (May 31, 1979).

Second, even if dumping PCBs on the ground had been

known to pose health hazards, the provision at issue here

required only that Air Force personnel “[m]ake all practical

efforts” to avoid exposing people to chemicals that could be

hazardous to health. That qualifier necessarily left Air Force

personnel with discretion to decide whether complying with

the directive was feasible under the circumstances at hand.

See Aragon v. United States, 146 F.3d 819, 824 (10th Cir.

1998) (the phrase “as may be practicable” conferred

discretion at step one); Cope v. Scott, 45 F.3d 445, 450 (D.C.

Cir. 1995) (same for the phrase “to the extent practicable”);

see also Gonzalez, 814 F.3d at 1030 (the phrase “whenever

feasible” conferred discretion at step one).

Turning to the second step of the analysis, we conclude

that deciding how closely Air Force personnel would

12 NANOUK V. UNITED STATES

supervise the contractors’ waste disposal practices “involved

the kind of policy judgment that the discretionary function

exception was designed to shield.” Gaubert, 499 U.S.

at 332. Nanouk faults the Air Force for failing to conduct

more rigorous inspections of the contractors’ operations, but

any attempt to find the Air Force negligent based on the level

of oversight it exercised would require a court to second

guess judgments that are “susceptible to policy analysis.” Id.

at 325. The Air Force decided from the outset that, given

manpower constraints, it could not operate the White Alice

system itself, so it hired contractors to maintain and operate

all 70 sites “with the minimum governmental support.” That

judgment obviously influenced how closely Air Force

personnel could monitor the contractors’ waste disposal

practices. The Air Force decided to rely on the contractors’

presumed competence in operating the radio relay stations,

subject to limited oversight that did not include policing the

manner in which contractors disposed of PCBs. Courts have

held that similar policy judgments concerning the level of

oversight to be exercised over government contractors are

protected by the discretionary function exception. See, e.g.,

Varig Airlines, 467 U.S. at 815–16, 819–20; Kirchmann,

8 F.3d at 1277–78. 2

2

This case differs from Camozzi v. Roland/Miller & Hope

Consulting Group, 866 F.2d 287 (9th Cir. 1989), on which Nanouk

relies. There the government retained responsibility for overseeing the

contractor’s compliance with safety precautions, including responsibility

for conducting daily inspections of any floor openings at the work site

(the hazard that caused the plaintiffs’ injuries). Id. at 288–89. “Failure

to inspect floors for uncovered and unguarded openings,” we held, “was

not the result of a policy choice by the particular employees or agents

involved. It was simply a failure to effectuate policy choices already

made and incorporated in the contracts.” Id. at 290.

NANOUK V. UNITED STATES 13

B. Abandonment of the North River Station

We consider next the government’s alleged negligence

between 1978, when the North River Station closed, and

1990, when the Air Force and the Army Corps focused their

remediation efforts on the station. Nanouk alleges that after

the station’s closure, the Air Force essentially abandoned the

property, leaving barrels containing PCBs exposed to

vandalism and the elements, which allowed the barrels’

contents to leak into the soil in the area that later became the

hot spot. Although the Air Force and the Army Corps

conducted some remediation efforts in the 1980s, Nanouk

faults the government for not moving more quickly to secure

the barrels, remove them from the site, and clean up the

contamination they left behind.

At the first step of the analysis, we again find no

mandatory and specific directive governing the

government’s actions. As the source of such a directive,

Nanouk cites a provision of the Federal Property

Management Regulations addressing the management of

surplus real property held by federal agencies. 3 The

provision in effect in the 1980s stated in relevant part: “The

holding agency shall retain custody and accountability for

excess and surplus real property including related personal

property and shall perform the physical care, handling,

protection, maintenance, and repairs of such property

pending its transfer to another Federal agency or its

3

For the first time in her reply brief, Nanouk also cites in passing

§ 6(e)(2)(A) of the Toxic Substances Control Act of 1976, which

addresses the regulation of PCBs. See 15 U.S.C. § 2605(e)(2)(A).

However, she fails to develop any argument explaining why that

provision qualifies as a mandatory and specific directive relevant here.

We therefore deem any such argument forfeited and express no view on

the issue.

14 NANOUK V. UNITED STATES

disposal.” 41 C.F.R. § 101-47.402-1 (1980). This provision

appeared in a set of regulations designed to protect the

government’s interest in real property that was no longer

needed for its original use, with the aim of ensuring that the

government could transfer the property to another federal

agency for use, donate the property to a state or local agency,

or sell the property and realize its value. See generally

Utilization and Disposal of Real Property, 41 C.F.R. Part

101-47 (1980). The provision Nanouk cites did not require

the Air Force or the Army Corps to prevent barrels

containing PCBs from leaking, remove the barrels from the

North River Station, or clean up contamination caused by the

barrels within a specified timeframe.

At the second step of the analysis, we think the

government is entitled to prevail as well. Nanouk faults the

Air Force and the Army Corps for their delay in addressing

what turned out to be serious environmental contamination

at the North River Station. But the decisions she challenges

as negligent were “based on considerations of public

policy.” Berkovitz, 486 U.S. at 537.

When the Air Force decided to shut down the White

Alice Communications System in the 1970s, it had to deal

with the closure of dozens of other radio relay stations during

the same time period. Faced with limited resources to

address environmental contamination at each of those sites,

the Air Force decided to conduct remediation on a “worst

first” basis, with sites posing graver risks of imminent harm

given a higher priority than those posing less serious risks.

That decision was dictated by a military-wide policy adopted

by the Department of Defense, described as follows:

“Because of the large number of sites DoD-wide and

extensive investigations and planning that precede cleanup,

it is not technically or economically feasible to undertake

NANOUK V. UNITED STATES 15

remedial actions at all sites simultaneously. . . . DoD policy

is to remediate those sites which pose the greatest potential

for damage first.” 54 Fed. Reg. 43104 (Oct. 20, 1989).

Established in 1983, this policy was known as the Defense

Environmental Restoration Program (DERP).

In essence, the military adopted a triage system for

addressing a large number of simultaneous demands on

finite resources, a policy judgment that necessarily involved

the weighing of competing social, economic, and political

considerations. As part of this complex calculus, the

military had to decide which individuals or communities

would be left at risk of environmental harm that could have

been avoided in order to avert greater harm elsewhere. That

is the kind of policy judgment protected by the discretionary

function exception. See Cope, 45 F.3d at 450; Baum v.

United States, 986 F.2d 716, 722 (4th Cir. 1993).

Records are poor for the period during which the

government allegedly abandoned the property, but they are

consistent with the government’s efforts to prioritize clean-

up at the various former White Alice sites. Between 1978

and 1982, the government sent a caretaker to inspect the

North River site on a weekly basis. Between 1983 and 1985,

the Air Force undertook an initial clean-up of the site and

removed 500 gallons of PCB-containing transformer oil and

PCB-contaminated electrical transformers. While there is

little evidence of any activity between 1985 and 1990, the

site was surveyed in 1987, and in 1989 the government hired

a contractor to visit the site and inspect the soil. This work

revealed that 6,700 cubic yards of contaminated soil

remained. When the government turned its attention back to

the site in 1990, the site received a “low priority” ranking in

the DERP program. This record suggests that the

government’s failure to act more quickly to remediate

16 NANOUK V. UNITED STATES

environmental contamination at the North River Station was

attributable to the military’s policy judgment to direct its

limited resources to sites posing more urgent demands for

remediation.

The cases on which Nanouk relies are distinguishable.

In each of them, we held that the government could not

invoke the discretionary function exception by citing

budgetary constraints as the sole reason for its failure to

perform routine maintenance or to take routine safety

precautions. See, e.g., Bolt v. United States, 509 F.3d 1028,

1034 (9th Cir. 2007) (failure to remove snow and ice in a

parking lot, on which plaintiff slipped and fell); Whisnant v.

United States, 400 F.3d 1177, 1183–84 (9th Cir. 2005)

(failure to remove toxic mold from the commissary in which

plaintiff worked); O’Toole v. United States, 295 F.3d 1029,

1036–37 (9th Cir. 2002) (failure to conduct routine

maintenance of irrigation ditch, resulting in flooding of

plaintiffs’ land). As we stated in O’Toole, “inadequate

funding alone” cannot be sufficient to trigger the

discretionary function exception, 295 F.3d at 1037, for

otherwise the government could always insulate itself from

liability for run-of-the-mill negligence simply by asserting

that it chose “to spend its limited funds in other ways,” id.

at 1036.

The key factor in identifying judgments that are

protected by the discretionary function exception is the

presence of “competing policy considerations” that must be

weighed. Morales v. United States, 895 F.3d 708, 715 (9th

Cir. 2018); Bibeau, 339 F.3d at 946; Miller v. United States,

163 F.3d 591, 596 (9th Cir. 1998). Thus, particularly when

the government is charged with acting or failing to act in a

way that jeopardizes safety, there must be a legitimate policy

consideration on the other side of the balance before the

NANOUK V. UNITED STATES 17

discretionary function exception can be held to apply. In

each of the cases on which Nanouk relies, no such competing

policy consideration was present. For example, as we

observed in Chadd, “[w]hat distinguished the mold situation

in Whisnant is that there was no legitimate reason for the

commissary not to eliminate the toxic mold.” 794 F.3d

at 1112. Here, by contrast, there was a legitimate, competing

policy consideration underlying the government’s failure to

address safety concerns at the North River Station more

promptly—namely, the need to address simultaneous and

more urgent safety concerns presented by environmental

contamination at sites assigned a higher priority ranking. 4

Because the government’s decision to prioritize more

dangerous sites for remediation ahead of the North River

Station involved the weighing of competing policy

considerations, it is protected by the discretionary function

exception.

C. Delay in Remediating the Hot Spot

Finally, we address Nanouk’s allegation that, once the

government turned its attention to the North River Station in

1990, it negligently failed to discover and clean up the hot

spot in a timely manner. As noted earlier, the contractor that

the Army Corps initially hired to conduct remediation efforts

at the station went out of business before completing the

clean-up, as did the replacement contractor. Although a

4

We are mindful that, in the district court and on appeal, the

government erroneously relied on a report pertaining to an entirely

different location called “North River Recreation.” The North River

Recreation site is a spot by a river that service members used to fish and

recreate. It had little debris and no reported PCB contamination; no

PCBs were stored there. The North River Recreation report is not

factored into our analysis.

18 NANOUK V. UNITED STATES

third contractor eventually resumed the clean-up, the

government did not discover the hot spot until 2003–13

years after the government first directed its remediation

efforts toward the North River Station. Nanouk faults the

government for failing to identify the hot spot sooner, on the

theory that such failure caused, or at least contributed to, the

contamination of her property.

With respect to the first step of the analysis, we conclude

that the government had discretion to decide when and how

to conduct the remediation, as no mandatory and specific

directive required the government to complete the process

within a specific timeframe. Nanouk does not contend

otherwise.

At the second step of the analysis, however, we are

unable to determine whether the government’s decisions

were “grounded in social, economic, and political policy.”

Varig Airlines, 467 U.S. at 814. The government insists that

the discretionary function exception applies, but it has not

identified any competing policy considerations underlying

the 13-year delay in discovering the hot spot and

commencing removal of PCBs from the affected area.

Instead, the government makes a general appeal to limited

resources, and focuses on its decision in the 1980s to

prioritize sites posing graver risks of environmental harm.

While such policy considerations warrant application of the

discretionary function exception to Nanouk’s second theory

of liability, they do not automatically shield the government

from liability for subsequent delays. By 1990, the Air Force

and the Army Corps had decided to direct remediation

efforts toward the North River Station, presumably after

having addressed sites with more pressing environmental

safety concerns. As the record stands now, it appears that

once the government reached that decision in 1990, its

NANOUK V. UNITED STATES 19

failure to conduct the clean-up in a timely manner thereafter

was “not the result of a policy choice,” but “simply a failure

to effectuate policy choices already made.” Camozzi,

866 F.2d at 290.

Of course, the government may have been conducting

environmental remediation at higher priority sites

throughout the 13-year period of delay, thus preventing it

from directing sufficient resources to the North River

Station. If so, the discretionary function exception might

protect the government’s weighing of competing policy

considerations for the reasons explained above. But the

government has not made any factual showing along those

lines, and the record does not disclose whether the delay in

pursuing remediation at the North River Station involved

decisions “susceptible to policy analysis.” Gaubert,

499 U.S. at 325. Accordingly, at this stage of the

proceedings, the government has failed to demonstrate that

the discretionary function exception applies to Nanouk’s

third theory of liability. See Chadd, 794 F.3d at 1108.

* * *

The discretionary function exception protects the

government’s alleged failure to supervise contractors during

the North River Station’s operation, as well as its

abandonment of the property between the station’s closure

in 1978 and 1990. However, based on the current record, we

cannot conclude that the discretionary function exception

also applies to the government’s failure to identify and

remediate the hot spot in a timely manner after 1990. For

that reason, we vacate the district court’s judgment

dismissing Nanouk’s action for lack of subject matter

jurisdiction and remand the case for further proceedings.

20 NANOUK V. UNITED STATES

Nanouk’s motion to strike the government’s

Supplemental Excerpts of Record (Dkt. No. 19) is DENIED.

VACATED and REMANDED.

The parties shall bear their own costs.