IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30449

IN RE: KATRINA CANAL BREACHES LITIGATION.

STEERING COMMITTEE,

Plaintiff-Appellant,

versus

WASHINGTON GROUP INTERNATIONAL, INC.,

Defendant-Appellee.

* * * * * * * * * * * * * * *

United States Court of Appeals

Fifth Circuit

F I L E D

September 14, 2010

Lyle W. Cayce

Clerk
2

No. 09-30428

IN RE: KATRINA CANAL BREACHES LITIGATION.

QUINTESSA HUEY, 

CARYN L. FONG, as Trustees of the Huey & Fong Trust; 

AMY HUEY, as Trustee of the Kenneth Huey Family Trust; 

RADIO PARTS, INC.; ENTERCOM COMMUNICATIONS CORPORATION;

ET AL.,

Plaintiffs-Appellants,

versus

WASHINGTON GROUP INTERNATIONAL, INC.,

Defendant-Appellee.

* * * * * * * * * * * * * * *

No. 09-30438

IN RE: KATRINA CANAL BREACHES LITIGATION.

BETTY LUNDY; FREDERICK ADAMS; JEAN ADDISON; 

JONATHAN AKERS; OLLIE P. ALEXANDER; ET AL.,

Plaintiffs-Appellants,

versus

WASHINGTON GROUP INTERNATIONAL, INC.,

Defendant-Appellee.
3

Appeals from the United States District Court

for the Eastern District of Louisiana

Before SMITH, WIENER, and ELROD, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Washington Group International, Inc. (“WGI”) provided engineering, construction, and management services. The United States Army Corps of Engineers (“the Corps”) contracted with WGI for a large project in New Orleans. The

plaintiffs sued WGI, claiming that its negligent and improper actions in fulfilling

the contract were a cause of flood damage resulting from Hurricane Katrina.

The district court granted summary judgment for WGI based on governmentcontractor immunity (“GCI”). Because the specifications for the work at issue

were not reasonably precise, WGI has no GCI, so we reverse the summary judgment and remand.

I.

In 1994, the Corps and WGI entered into an indefinite delivery/indefinite

quantity contract for the remediation of some hazardous, toxic, and radioactive

waste sites in the southwestern United States. That “umbrella contract,” known

as the Total Environmental Restoration Contract(“TERC”), setforth general requirements for all of WGI’s anticipated work in the region, with the understanding that the Corps would approve a specific Statement of Work (“SOW”) for each

Task Order it would issue to WGI.
Nos. 09-30449, 09-30428, 09-30438

4

In 1999,the Corps began its Inner Harbor Navigation Canal Lock Replacement Project in New Orleans, one aspect of which was the cleanup of the East

Bank Industrial Area. Pursuant to the TERC, WGI was obligated (1) to demolish existing structures in that area by removing surface and subsurface obstructions, (2) to characterize contaminants on the site, and (3) to remediate the site

in accordance with any applicable environmental standards. This specific task

was contracted for and identified as Task Order 26 of the TERC.

In June 1999, the Corps issued a SOW for Task Order 26 that was brief

and provided only a general description of the work to be done. From that SOW,

WGI submitted a more detailed work plan to the Corps. After receiving the work

plan, the Corps engaged WGI in a review process during which the Corps would

comment on issues it had with WGI’s proposals, solicit a response from WGI on

those comments, and continue in such a back-and-forth manner until the Corps

and WGI had come to an agreement regarding any matters that were in conflict.

The review process included the completion of various technical analyses

and recommendation reports by the Corps and additional work plans by WGI.

A final Recommendation Report was formally issued in January 2000, after

which it became “the basis of subsequent specifications for work and work orders

and proposals.” 

After completion ofthe Recommendation Report process,the Corps issued

another SOW that, once again, provided general directions to WGI. From that

SOW, WGI drafted eight work plans for the specific project and submitted them

to the Corps for comment and approval. The most important of those work

plans, for our purposes, was the Project Work Plan, which dealt with the equipment, the excavation, and the remediation process for the areas at issue in the

plaintiffs’ claim.
Nos. 09-30449, 09-30428, 09-30438

1 Backfill material is the physical matter used to refill holes created by the removal of

subsurface structures. 

2 Compaction is the process of increasing the bulk density of an aggregate of matter by

driving out air.

5

Once work had begun, WGI discovered previously unknown subsurface

structures in the area to be remediated. In August 2001, the Corps issued another SOW to address the excavation and disposal of those newly discovered

structures. Pursuant to that SOW, and in compliance with all the previously approved plans, WGI submitted Proposal #113, which dealt with the excavation

and disposal of the new subsurface structures.

In its Technical Analysis of Proposal #113, the Corps deemed WGI’s proposal too costly, rejected it, and suggested several elements of the proposal as to

which cost savings could be achieved. One of those suggestions was to use onsite borrow matter as the primary source of backfill material.1 The final proposal submitted by WGI, and approved by the Corps, incorporated that suggestion

by stating that “[t]he excavations . . . will be backfilled with borrow material

obtained from either the on-site borrow source or an off-site source.”

The final approved proposal also stated that the backfill “material will be

placed in lifts and compacted; however, no compaction testing will be required.”2

The work plans derived from the final proposal also specified that compaction

should occur “with previous excavated soil in 2' lifts,”that“[i]nitial backfill operations will be to the bottom of the whalers inside the [subsurface obstruction],”

and that backfilling should be completed “to the top of sheet piles with material

to be provided by WGI after whalers are removed.” Working from that approved

proposal and from subsequent work plans derived from it, WGI completed the

project in the spring of 2005.
Nos. 09-30449, 09-30428, 09-30438

6

In August 2005, Hurricane Katrina made landfall near New Orleans. As

a result, the flood protection system in the Inner Harbor Navigation Canal project, consisting of levees and floodwalls, failed. Two of the breaches in the levees

were near areas that were part of the zone where WGI had conducted extensive

work. The plaintiffs claim that the failure of those levees was a result of the

negligent and improper backfilling and compaction ofthe excavated locations by

WGI in violation of a state-law duty of care. Specifically, the plaintiffs allege

that the method of excavation and backfilling employed by WGI allowed for underseepage, which undermined the integrity ofthe levees, resulting in their failure and the subsequent flooding of New Orleans East, the Lower Ninth Ward,

and St. Bernard Parish.

II.

In 2007, the plaintiffs, in several consolidated actions, sued WGI, the

Corps, and numerous other defendants for harm resulting from Hurricane Katrina-related damages. In 2008, WGI moved for summary judgment, asserting

the GCI defense. The plaintiffs opposed summary judgment on the grounds that

(1) GCI does not apply because there was no conflict with state law, and (2) even

assuming such a conflict, WGI failed to satisfy the Supreme Court’s three-part

testfor GCI. The district court granted summary judgment for WGI, concluding

that displacement of state law is built into the GCI defense and that WGI had

satisfied all the requirements for GCI.

III.

We review a summary judgment de novo,“using the same standard as that

employed by the district court under Rule 56.” Kerstetter v. Pac. Scientific Co.,
Nos. 09-30449, 09-30428, 09-30438

3

In their reply brief, the plaintiffs contend that the GCI defense from Boyle is applicable only to military contractors and should not be extended. That argument is waived, because

it was not made in the plaintiffs’ opening brief. Morgan v. Swanson, 610 F.3d 877, 884 n.10

(5th Cir. 2010) (stating that issues raised for the first time in appellant’s reply brief are

waived).

7

210 F.3d 431, 435 (5th Cir. 2000). Summary judgment is warranted where

“there is no genuine issue as to any material fact and [] the movant is entitled

to judgment as a matter of law.” FED. R. CIV.P. 56(c)(2). There is no genuine issue for trial “[i]f the record, taken as a whole, could not lead a rational trier of

fact to find for the nonmoving party.” Kipps v. Caillier, 197 F.3d 765, 768 (5th

Cir. 1999).

A.

The Supreme Court first recognized the federal GCI defense to state tort

law in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). The GCI defense

preempts state law to immunize government contractors from liability in spite

of the absence of legislation specifically immunizing them.3 The rationale for

GCI flows from two basic principles: “[S]tate tort law is preempted by federal

common law in areas of unique federal interests” and “the procurement of equipment by the United States is such an area.” Trevino v. Gen. Dynamics Corp.,

865 F.2d 1474, 1479 (5th Cir. 1989). In Boyle, the Court specified the precise

scope of the displacement of state law, using a three-part test: 

Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved

reasonably precise specifications; (2) the equipment conformed to

those specifications; and (3) the supplier warned the United States

about the dangers in the use of the equipment that were known to

the supplier but not to the United States. 
Nos. 09-30449, 09-30428, 09-30438

8

Boyle, 487 U.S. at 512.

B.

The plaintiffs argue that the district court erred in failing to conduct a

threshold inquiry into the existence of a significant conflict between federal policy and state law. They incorrectly assert that this inquiry is necessary to an

application of the Boyle test. Although a conflict between federal policy and

state law is a necessary element of any finding of GCI, a threshold inquiry on

that specific issue is not necessary but, rather, is built into the three-part Boyle

test.

Following oral argument in the instant case, a different panel ofthis court

decided Jowers v. Lincoln Electric Co., No. 09-60396, 2010 U.S. App. LEXIS

17862 (5th Cir. Aug. 26, 2010). There, the district court had included in the jury

instructions a threshold inquiry that the government contractor challenged on

appeal. This court held that “an additional instruction that the jury find a ‘significant conflict’ between federal interests and Mississippi law in the instant

matter is superfluous and forces the jury to construe an issue of law, which is

outside its purview as a fact-finder.” Id. at *9. Though the panel focused on the

role of the jury as a factfinder, its conclusion that a threshold inquiry is “superfluous” is a statement on the general applicability of the GCI defense.

Additionally, though this circuit never had occasion, before Jowers, to address the “significant conflict” issue, we have consistently applied the Boyle test

without conducting any sort of threshold inquiry similar to the one these plain-
Nos. 09-30449, 09-30428, 09-30438

4 See, e.g., Miller v. Diamond Shamrock Co., 275 F.3d 414, 419 (5th Cir. 2001); Kerstetter, 210 F.3d at 435; In re Air Disaster at Ramstein Air Base, Germany, 81 F.3d 570, 574 (5th

Cir. 1996); Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 798 (5th Cir. 1993); Stout v.

Borg-Warner Corp., 933 F.2d 331, 334 (5th Cir. 1991); Trevino, 865 F.2d at 1479.

5

In Lewis, 985 F.2d at 83, the court directly addressed the issue of whether the Boyle

test requires a threshold inquiry into the presence of a “significant conflict” with state law. It

held that “answering the question whether the Government approved reasonably precise

specifications for the design feature in question necessarily answers the question whether the

federal contract conflicts with state law.” Id. at 86.

The plaintiffs argue that Lewis was implicitly overruled by In re World Trade Center

Disaster Site Litigation, 521 F.3d 169 (2d Cir. 2008), in which the court stated that “[a]s a

threshold matter, the defense only arises in an area of uniquely federal interest, where a sig-

(continued...)

9

tiffs request.4 Preemption of state law by federal law without a statutory mandate can occur only where “a ‘significant conflict’ exists between an identifiable

federal policy or interest and the operation of state law, or the application of

state law would frustrate specific objections of federal legislation,” Boyle, 487

U.S. at 507 (internal quotation marks and citations omitted), but, importantly,

“[t]he first two of these conditions assure that the suit is within the area where

the policy of the ‘discretionary function’ would be frustrated,” id. at 512. 

By assuring that the suit involves a situation in which the discretionary

function is frustrated,the first ofthe three Boyle conditions necessarily satisfies

the earlier-stated requirement of a significant conflict. See Lewis v. Babcock Indus., Inc., 985 F.2d 83 (2d Cir. 1993); Kerstetter, 210 F.3d at 438. “Whether [the

GCI defense] will apply to a particular claim depends only upon whether Boyle’s

three conditions are met with respect to the particular product feature upon

which the claim is based.” Bailey, 989 F.2d at 801-02 (5th Cir. 1993) (emphasis

in original). A threshold inquiry into whether there is a significant state conflict

has never been required by any court,5 nor should it be. The only analysis
Nos. 09-30449, 09-30428, 09-30438

5

(...continued)

nificant conflict exists between an identifiable federal policy or interest and the [operation] of

state law.” Id. at 194 (internal quotation marks and citations omitted). The plaintiffs read too

much into the wording of that sentence. The court in World Trade Center did not believe a

threshold inquiry was necessary. Rather, it merely stated that, as a matter of first principles

(i.e., as a “threshold matter”), GCI arises from the significant conflict between federal interests

and state law. 

Importantly, the court went on to apply the Boyle factors without conducting, or even

mentioning again, any sort of threshold inquiry. Furthermore, the court specifically stated

that the first Boyle factor was “designed to ensure that a conflict with state law exists, and,

along with the second requirement, to assure that the suit is within the area where the policy

of the discretionary function would be frustrated.” Id. at 196 (internal quotation marks and

citations omitted). With this statement, World Trade Center not only did not implicitly overrule Lewis but explicitly reaffirmed it.

10

necessary to determine the application and scope of government contractor immunity is the three-step Boyle test.

C.

The first Boyle step requires that the government approved reasonably

precise specifications. That entails both the existence of reasonably precise specifications and the approval of those specifications by the government.

Specifications are reasonably precise “as long as the specifications address,

in reasonable detail,the product design feature, alleged to be defective.” Kerstetter, 210 F.3d at 438. See also Trevino, 865 F.2d at 1481. “The requirement that

the specifications be precise means that the discretion over significant details

and all critical design choices will be exercised by the government.” Id. Reasonably precise specifications for one aspect of a large project do not create an umbrella of protection for an entire project. Instead, the requirement of reasonably
Nos. 09-30449, 09-30428, 09-30438

6 See Trevino, 865 F.2d at 1486 (“The government contractor defense as reformulated

in Boyle protects government contractors from liability for defective designs if discretion over

the design feature in question was exercised by the government.” (emphasis added)).

7 At various points in their briefs, the plaintiffs seem to urge that the government failed

to provide reasonably precise specifications for dealing with the possibility of underseepage in

the area near the project. That argument, however, is irrelevant to our current analysis of the

scope of GCI, because the reasonably precise specifications that are required by the first prong

of the Boyle test “need not address the specific defect alleged; the government need only

evaluate the design feature in question.” Kerstetter, 210 F.3d at 435 (emphasis added). The

underseepage erosion of the flood walls is not a design feature; it is a defect that is alleged to

be the result oftwo design features (i.e., the backfill material used and the compaction method

employed). Thus, under the first prong, the government must only have approved precise specifications for the backfill material and the method of compaction; it need not have addressed

underseepage erosion specifically.

11

precise specifications must be met by the specific feature at issue in the claim.6

In this case, the specific features at issue are the backfill material used and the

method of compaction employed by WGI.7

1.

The Corps, driven by cost concerns, approved specifications that mandated

on-site material as the primary source of the backfill material. The Corps also

specified that if there was insufficient on-site material, WGI should import offsite backfill materialto complete the project. Two factors render those specifications imprecise. 

First,the specifications that authorized the use of on-site backfill material

were not reasonably precise in regard to how WGI should parse through all the

on-site material to determine which was suitable. The Corps neither mandated

the composition ofthe backfill material nor established precise procedures to test

material for its suitability as backfill. The only Corps specification was that the

material had to be clean, not contaminated, and not full of debris. Given, how-
Nos. 09-30449, 09-30428, 09-30438

8 As the Corps’s Contracting Officer Representative, Lee Guillory, acknowledged, backfill material need not be homogenous and could consist of various types of matter, including

crushed stone, clays, silts, sand layers, wood debris, and more.

12

ever, the wide variety in the types of matter that could be used as backfill material,that specification is not reasonably precise.8 The composition of the backfill

used by WGI serves as one factor in plaintiffs’ tort claim, so it cannot be said

that“the specifications address, in reasonable detail,the product design feature,

alleged to be defective.” Kerstetter, 210 F.3d at 438.

The Corps did not approve any specifications regarding the precise composition of the on-site backfill material. As Guillory noted in his deposition,

Q: And there were no real specifications for backfill in terms of what

they could use and the degree of compaction, right?

A: Right. We just backfilled with the adjacent soil that was excavated out, removed, stockpiled on the side. After the lift station was removed, that soil was put back in layers and compacted to the compaction of the adjacent soil.

Later in that deposition, Guillory confirmed that the specifications were “general” and did notindicate the type of backfill materialthat could be used to backfill the hole:

Q: And Number 7 is a discussion of the backfill. It says, the excavation resulting from concrete foundation removal will be backfilled

with borrowed material obtained from either the on-site borrow

source or an off-site source as required. An estimated 900 Cys will

be needed . . . . Okay, so would you regard this as a general specification?

A: Yes.
Nos. 09-30449, 09-30428, 09-30438

13

Q: Okay. It’s certainly not a prescribed specification, right?

A: Right.

Q: And it doesn’t indicate what kind of material you can use to backfill the hole, does it?

A: No, it doesn’t.

The second reason that the specifications are imprecise concerns the offsite material imported by WGI and used as backfill material. The Corps provided no reasonably precise specifications regarding the composition of that off-site

backfill material. The Corps was not even fully aware of the contents of the

backfill material used to fill the holes it had created. Guillory’s statements during his deposition are indicative of the degree of precision of the Corps’s specifications:

Q: Okay. So we really don’t know what’s in the hole, do we?

...

A: I cannot tell you for a fact of everything that’s in that hole, no.

Q: All right. It says, additional fill material necessary to complete

the backfill operations will be provided by WGI.

Q: Doesn’t that allow WGI to use other kinds of material to fill up

the hole?

A: Itjust says provided to the subcontractor. It could be indigenous,

on site clay material, it could have been commercially truck hauled

clay material. 

It is true that in addition to the Corps’s standing requirement that the

backfill material be clean, not contaminated, and not full of debris, any off-site
Nos. 09-30449, 09-30428, 09-30438

9 There is also no evidence that the approval given by the Corps for the off-site backfill

material was anything more than a rubber stamp, which is unacceptable under the Boyle test.

See Trevino, 865 F.2d at 1480 (“If the government contractor exercised the actual discretion

over the defective feature ofthe design, then the contractor will not escape liability via the government contractor defenseSSthe government’s rubber stamp on the design drawings notwithstanding.”). We focus our discussion, however, on the precision of the specifications, not

the process of approval. Although those two issues are intertwined as elements of the first

prong of Boyle, they are still two separate conditions that can be analyzed independently. If

the specifications are not reasonably precise, it does not matter whether the imprecise specifications were properly approved: The first prong would not be satisfied.

14

backfill material imported by WGI had to receive some sort of approval from the

Corps before it could be used. But there is no information in the record indicating that the Corps imposed additional requirements regarding the composition

of the off-site material, nor is there any indication that the Corps applied any

testing process to evaluate the off-site backfill material before approving its use.9

Given the absence of reasonably precise specifications in the proposal under

which WGI was operating, any such additional evidence is necessary to find that

the Corps approved reasonably precise specifications and did not merely allow

WGI to exercise principal discretion over the composition of the off-site backfill

material.

Significantly, the evidence in the record shows that the sole consideration

for the Corps in evaluating the backfill was the cost of the material. If that was

the extent of its analysis, the Corps cannot be said to have approved reasonably

precise specifications regarding the composition of the off-site backfill material.

Given thatthe Corps provided imprecise, and attimes non-existent, specifications regarding the composition of the on-site and off-site backfill material,

WGI is not entitled to claim GCI for its exercise of discretion in choosing the

composition of that material.
Nos. 09-30449, 09-30428, 09-30438

15

2.

The Corps specified that the backfill “material will be placed in lifts and

compacted.” The Corps also directed that compaction occur “with previous excavated soil in 2' lifts,”that“[i]nitial backfill operations will be to the bottom of the

whalers inside the [subsurface obstruction],” and that backfilling should be completed “to the top of sheet piles with material to be provided by WGI after whalers are removed.” 

The WGI Project Manager, Dennis O’Connor, described, in his deposition,

his understanding of the specifications for compaction in his deposition:

Q: Tell me what was the specification for compaction?

A: There were no specifications for compaction.

Q: OK.

A: Simply a general directive that if we backfilled the hole, depending on the piece of equipment and size ofthe hole, we would compact

the soil mechanically, be it with an excavator or backhoe if it was

very small, or a wheel roller if it was extremely small. And it would

depend on the size of the lifts and we would bring it up to grade.

As O’Connor admitted, WGI understood there to be no precise specifications for

compaction. Additionally, though we do not ascribe a legal conclusion to O’Connor’s declaration that the Corps’s directive was a “general” specification, his detailed statement of what the general directive entailed shows the lack of reasonable precision. By his own terms, WGI could have used an excavator, backhoe, or wheel roller for compaction, based on the size of the hole and the size of

the lifts. There is no information in the record, however, to show that the Corps

provided specifications for when a certain piece of equipment should be used for
Nos. 09-30449, 09-30428, 09-30438

10 These plaintiffs suggest the “95 percent Standard Proctor density” standard. We use

it, however, only as an example of a possible standard of compaction, not as an approval ofthat

standard. The issue is not whether the government chose the correct standard, because the

GCI defense is meant to prevent the second-guessing of such decisions. See Boyle, 487 U.S. at

511 (stating that “permitting ‘second guessing” of these judgments through state tort suits

against contractors would produce the same effect sought to be avoided by the FTCA exemption”) (internal citation omitted). Rather, the issue is whether the government chose any standard of compaction at all. There is no second-guessing here of a government decision, because

none was made.

16

a particular type of hole.

Furthermore, the specifications are not reasonably precise, because they

fail to dictate any standards for compaction. The extent of compaction can be

measured using a proctor compaction test. The Corps chose not to require any

specific standard that could be measured by that test. Instead, it unequivocally

emphasized its lack of interestin mandating specifications for compaction density by stating that “no compaction testing will be required.” To explain this lack

of specification, the Corps cited cost concerns and the fact that the Corps could

visually observe the result of the compaction method that WGI used. That explanation, even if it is credible, has no effect on our conclusion that the specifications that were approved were not reasonably precise.

The Corps’s failure to specify a standard for compaction also meant that

WGI could choose a method of compaction that did not require a particular final

result. For example, if the Corps had specified that the holes should be compacted to 95% Standard Proctor density,10 WGI would be limited, in its choice of a

compaction method, to a process that would achieve that result. By not specifying any compaction method, the Corps allowed WGI the discretion to choose a

method without a required result.

One could argue that the Corps’ failure to provide standards for compac-
Nos. 09-30449, 09-30428, 09-30438

17

tion or to provide details for the equipment to be employed was, in itself, a precise specification. The approved work plan stated that “[t]he material will be

placed in lifts and compacted” and affirmed that “no compaction testing will be

required.” Given that those general specifications were the result of an intricate

approval process, it is reasonable to conclude that the decision not to specify

more than basic compaction was a decision made by the Corps, as WGI contends

in its brief.

The question, however, is not whether the Corps approved of any decision

regarding the compaction method. The relevant inquiry, instead, is whether the

Corps approved sufficiently precise specifications, such thatitis evidentthatthe

government was the primary agent of decision over the compaction method. “If

the government approved imprecise or general guidelines, then discretion over

important design choices would be left to the government contractor.” Trevino,

865 F.2d at 1481. By providing only general instructions regarding the compaction method,the Corps ensured that WGI would have significant discretion over

the method chosen. The exercise of that discretion by WGI is not protected by

the GCI doctrine.

To decide otherwise would lead to an absurdity: The government could

provide general specifications, inform the court that it “precisely” chose to approve only general specifications, and thus render all subsequent, discretionary

decisions of a government contractor protected under the GCI doctrine. Such an

analysis would controvertthe very purpose of the GCI defense. The government

contractor defense in Boyle, “[s]tripped to its essentials,” is fundamentally a
Nos. 09-30449, 09-30428, 09-30438

11 In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d 626, 632 (2d Cir. 1990). See

also Trevino, 865 F.2d at 1482 (“[T]he purpose of the [Boyle] test is to deny the defense to a

government contract that is itself ultimately responsible for the defect.”) (internal quotation

marks and citation omitted).

18

claim that“[t]he Government made me do it.”11 To adhere to this basic principle,

itis essentialthatthe specifications approved by the government are reasonably

precise. “If the government approved imprecise or general guidelines, then discretion over important design choices would be left to the government contractor.” Trevino, 865 F.2d at 1481.

The Corps did not “make” WGI use the exact backfill material that was

utilized, nor did it “require” WGI select the compaction method that was employed. In the absence of reasonably precise Corps specifications, those decisions

were made by WGI. Thus, WGI fails the first step of the Boyle test and is not entitled to GCI for its choice of backfill material and compaction method. The summary judgment is REVERSED, and this matter is REMANDED for further proceedings as needed. We impose no limitations on what matters the district court

can consider on remand, and we express no view as to what decisions that court

should make.