Myers v. United States, 652 F.3d 1021

Plaintiffs allege damages from exposure to thallium due to soil remediation at Camp Pendleton, with contaminated soil dumped into the Box Canyon Landfill near Myers' home and an elementary school.
The Navy administered OU-3 cleanup under an FFA, requiring a Quality Assurance Officer to oversee work and maintain QA logs; NAVFACENGCOM manuals also required review of HASPs by a competent person.
Two sites (1A and 2A) showed thallium; tests suggested potential false positives and that lead, not thallium, posed the primary risk, though HI indicated unacceptable risk requiring cleanup.
Remediation involved excavating contaminated soil, transporting it across the base, and dumping it into Box Canyon; air/dust controls and HASP requirements were specified, but evidence shows Navy CIHs did not approve HASP and the QAO did not oversee air monitoring data.
Dust monitoring occurred with exceedences over action levels, yet work continued; residents reported visible dust clouds near the housing area during remediation.
Myers, a guardian ad litem for a minor, developed thallium-related health issues; post-remediation samples showed limited thallium, while raw data and timing raised questions about exposure sources and causation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the discretionary function exception barred FTCA claim	Discretionary function did not apply; mandatory manual/FFA duties were violated.	Oversight decisions involve policy judgments protected by the exception.	Discretionary function exception did not bar the claim.
Whether Navy conduct was reasonably prudent under CA law	Navy failed to ensure proper safety oversight and safety plans.	Contractor expertise and safety plans justify Navy discretion and reasonable conduct.	Navy conduct not reasonable; remand for phases two and three.

Terbush v. United States, 516 F.3d 1125 (9th Cir. 2008) (two-prong test for discretionary function)
Berkovitz v. United States, 486 U.S. 531 (U.S. 1988) (mandatory vs. discretionary action when policy directs conduct)
Bolt v. United States, 509 F.3d 1028 (9th Cir. 2007) (specific mandatory policy can defeat discretionary function)
Bear Medicine v. United States, 241 F.3d 1208 (9th Cir. 2001) (implementation of safety policy not protected; nondelegable duty)
Hinkson v. United States, 585 F.3d 1247 (9th Cir. 2009) (clear error review in FTCA context)
Privette v. Superior Court, 5 Cal.4th 689 (Cal. 1993) (peculiar risk doctrine and nondelegable duties under California law)