FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMILY NANOUK,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 19-35116

D.C. No.

3:15-cv-00221-RRB

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 berrypicking. 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 PCBcontaminated 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 highoccupancy 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 nondiscretionary, 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 cleanup 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.