Rebecca Flugstad v. United States

MEMORANDUM

Rebecca and Benjamin Flugstad sued the United States, the Department of the Interior, and the United States Fish and ' Wildlife Service (collectively, the “government”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674 , after Rebecca fell 20 feet from a trail in the Dungeness National Wildlife Refuge (“the Dungeness Refuge”), seriously injuring her back. The district court dismissed the Flugstads’ claims under the discretionary function exception to the FTCA. We have jurisdiction under 28 U.S.C. § 1291 . We affirm in part, reverse in part, and remand for further proceedings.

1. The discretionary function exception to the FTCA “provides immunity from suit for ‘[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.’ ” Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (quoting 28 U.S.C. § 2680 (a)). We apply a two-part test to determine whether the discretionary func-tiop exception applies. First, we consider whether the agency’s challenged conduct was…