What is the government's burden of proving its discretionary function under the discretionary function exception?

MultiRegion, United States of America

The following excerpt is from Dichter-Mad Family Partners, LLP v. United States, D.C. No. 2:09-CV-09061- SVW-FMO, No. 11-55577 (9th Cir. 2013):

First, the government may show that a statute, regulation or policy confers discretion on the government actor; this gives rise to a "strong presumption" that the alleged harmful act was guided by policy judgment. Id. at 324. Second, the government may show that the actor's course of action was "of the kind" that is "susceptible to policy analysis." Id. at 323, 325. Either of these showings will satisfy the government's "burden of proving application of the discretionary function exception." Blackburn v. United States, 100 F.3d 1426, 1436 (9th Cir. 1996).

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