NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT ANDERSON; et al., No. 22-55965
Plaintiffs-Appellants, D.C. No.
2:21-cv-09102-VAP-PD
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
Argued and Submitted December 7, 2023
Pasadena, California
Before: BEA, M. SMITH, and VANDYKE, Circuit Judges.
Former residents and patrons of the now-closed George Air Force Base
(George) appeal the district court’s order dismissing their complaint for lack of
subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm. Because we assume the parties’ familiarity with the facts, we recount them
here only as necessary.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The United States retains sovereign immunity over Appellants’ claims related
to the use, disposal, and failure to warn of toxic chemicals at George. The Federal
Tort Claims Act waives sovereign immunity for tort claims brought by private
citizens against the United States, 28 U.S.C. § 2674, but retains that immunity for
decisions based upon the exercise of policy-based discretion, 28 U.S.C. § 2680(a);
Lam v. United States, 979 F.3d 665, 673–75 (9th Cir. 2020). The parties do not
dispute whether the challenged conduct is “discretionary” but argue over whether
the judgments were “based on considerations of public policy.” Berkovitz by
Berkovitz v. United States, 486 U.S. 531, 536–37 (1988).
We hold that they were. Using and disposing of hazardous chemicals at a
military base during a period of active war involves weighing national security,
environmental, and safety considerations. See In re Consol. U.S. Atmospheric
Testing Litig. (Atmospheric Testing), 820 F.2d 982, 993–95 (9th Cir. 1987); see also
Boyle v. United Techs. Corp., 487 U.S. 500, 511 (1988); OSI, Inc. v. United States,
285 F.3d 947, 953 (11th Cir. 2002); Aragon v. United States, 146 F.3d 819, 826
(10th Cir. 1998). So too does failing to warn of those hazards. Atmospheric Testing,
820 F.2d at 997; Begay v. United States, 768 F.2d 1059, 1066 (9th Cir. 1985); see
also Loughlin v. United States, 393 F.3d 155, 164 (D.C. Cir. 2004).
2. Appellants fail to state a claim for failure to clean up the base. Although the
complaint recites a variety of cleanup orders, states that cleanup at George is
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projected to continue until 2077, and asserts that the Air Force had a duty to clean
up the base, Appellants never pleaded plausible facts showing that the Air Force
disregarded any cleanup order or breached its duty to cleanup in any way. See
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (noting that a complaint fails to
state a claim if it contains “no cognizable legal theory or an absence of sufficient
facts alleged to support a cognizable legal theory”).
3. The district court appropriately dismissed the complaint without leave to
amend. “In assessing whether leave to amend is proper, courts consider ‘the
presence or absence of undue delay, bad faith, dilatory motive, repeated failure to
cure deficiencies by previous amendments, undue prejudice to the opposing party
and futility of the proposed amendment.’” United States ex rel. Lee v. SmithKline
Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (quoting Moore v. Kayport
Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989)). “Futility of amendment can,
by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59
F.3d 815, 845 (9th Cir. 1995).
Appellants have failed to cure deficiencies despite two amendments, and
likely could not plead out of the discretionary function exception even if given leave
to amend. Although “implementation of [a] course of action” is generally not
“shielded by the discretionary function exception,” Whisnant v. United States, 400
F.3d 1177, 1181 (9th Cir. 2005), our law has “made clear that the ‘implementation
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of a government policy is shielded where the implementation itself implicates policy
concerns,’” Chadd v. United States, 794 F.3d 1104, 1112 (9th Cir. 2015) (citing
Whisnant, 400 F.3d at 1182 n.3). If “there is even one policy reason why officials
may decide not to take a particular course of action to address a safety concern, the
exception applies.” Id. Here, even if granted leave to amend, Appellants likely
could not plead facts showing that the Air Force’s effort to clean up dozens of toxic
chemicals left at George over the course of nearly fifty years was not susceptible to
“even one” policy consideration. Id.; see United States v. Gaubert, 499 U.S. 315,
324–25 (1991) (“For a complaint to survive a motion to dismiss, it must allege facts
which would support a finding that the challenged actions are not the kind of conduct
that can be said to be grounded in the policy of the regulatory regime.”).
4. None of the pro se Appellants’ arguments warrant reversal. The discretionary
function exception applies “whether or not the discretion involved be abused.” 28
U.S.C. § 2680(a).
AFFIRMED.
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