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The Supreme Court has prescribed a two-part test for determining the applicability of the discretionary function exception. See United States v. Gaubert, 499 U.S. 315, 322-25, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Courts are to ask first whether the challenged action was a discretionary one - i.e., whether it was governed by a mandatory statute, policy, or regulation. If the action is not discretionary, it cannot be shielded under the discretionary function exception. Second, courts ask whether the challenged action is of the type Congress meant to protect - i.e., whether the action involves a decision susceptible to social, economic, or political policy analysis. O'Toole v. United States, 295 F.3d 1029, 1033-34 (9th Cir.2002) (summarizing Gaubert/Berkovitz test). It is the government's burden to demonstrate the applicability of the discretionary function exception. Bear Medicine v. United States ex rel. Sec'y of the Dep't of the Interior, 241 F.3d 1208, 1213 (9th Cir.2001).


The Supreme Court has rejected two categorical approaches to this area of law. First, the applicability of the exception does not depend on whether the relevant decision was ...

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