ELR Citation: 50 ELR 20208
No(s). 19-35116 (9th Cir. Sep 4, 2020)

The Ninth Circuit vacated dismissal of a Federal Tort Claims Act (FTCA) lawsuit brought against the U.S. government concerning pollution from an abandoned military facility in Alaska. A resident argued that her property was contaminated by hazardous chemicals negligently released from the facility, and sought monetary damages. The district court had determined the resident's claims were barred by the FTCA's discretionary function exception and thus dismissed the suit for lack of subject matter jurisdiction. On appeal, the court agreed that the discretionary function exception protected the government's alleged failure to supervise contractors during the facility's operation and its abandonment of the property between the facility's closure in 1978 and 1990, but could not conclude that the discretionary function also applied to the government's failure to identify and remediate the hot spot in a timely manner after 1990. It therefore vacated the district court's dismissal and remanded for further proceedings.