Myers

concurring in part, and dissenting in part:

My most fundamental objection to the majority opinion is that the facts set forth in the opinion bear little resemblance to the findings of fact made by the district court following a bench trial. Rather than adopting the findings of fact made by the district court, as we are mandated to do absent a showing of clear error, see Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002), the majority completely rewrites the facts to such an extent that it decides a different case on different facts than that decided by the district court. Our precedent is to the contrary — the clear error standard of review “is significantly deferential, and we will accept the lower court’s findings of fact unless we are left with a definite and firm conviction that a mistake has been committed.” Lentini v. California Center for the Arts, 370 F.3d 837, 843 (9th Cir.2004) (citation and internal quotation marks omitted).

A few examples will illustrate my point:

This unmitigated and unauthorized appellate factfinding flies directly in the face of testimony from the assigned hygienist that the exceedences required work stoppage only if…

Opinion by Judge Bennett; Partial Concurrence and Partial Dissent by Judge Rawlinson.

OPINION

Plaintiffs seek damages from the United States for injuries to a child allegedly caused by exposure to the toxic heavy metal thallium from soil dumped into a landfill adjacent to the child’s residence and school. The child, by her guardian ad litem, appeals a decision of the district court finding that the United States acted “reasonably” and did not breach any duty in conducting the soil remediation project. The district court also found that it did not have subject matter jurisdiction, because the “discretionary function” exception to tort liability of the United States applies in this case. We reverse and remand for further proceedings.

I. BACKGROUND

A. Factual Background

Whether or not the district court’s findings of fact are clearly erroneous depends upon “the entire evidence” in the record. See United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir.2009) (en banc). Therefore, this statement of the factual background identifies both the district court’s findings and other evidence in the record that is relevant to the review of the district court’s findings.

*1024 As the…

Stephen T. Cox, Cox and Moyer, Pebble Beach, CA, and Scott J. Allen, LaRiviere, Grubman & Payne, L.L.P., Monterey, CA, for the plaintiff-Appellant.

Karen P. Hewitt, United States Attorney, S.D. Cal., San Diego, CA; Tony West, AAG Civil Div.; J. Patrick Glynn, Dir., Torts Branch; Adam Bain, Sr. Trial Counsel, Torts Branch; Kirsten L. Wilkerson, Charles A. Quinlan III, John J. Schoemehl, Trial Attorneys, Torts Branch, Washington, D.C., for the defendant-appellee.

Before: ALEX KOZINSKI, Chief Judge, JOHNNIE B. RAWLINSON, Circuit Judge, and MARK W. BENNETT, District Judge. [*]

Opinion by Judge Bennett; Partial Concurrence and Partial Dissent by Judge Rawlinson.

BENNETT, District Judge:

Plaintiffs seek damages from the United States for injuries to a child allegedly caused by exposure to the toxic heavy metal thallium from soil dumped into a landfill adjacent to the child's residence and school. The child, by her guardian ad litem, appeals a decision of the district court finding that the United States acted "reasonably" and did not breach any duty in conducting the soil remediation project. The district court also found that it did not have subject matter jurisdiction, because…