Hempfling

MEMORANDUM *

Karen Hempfling sued the United States under the Federal Tort Claims Act (the “Act”) for the Navy’s alleged failure to ensure that a furnace in her housing unit was up to code. The Hempflings allegedly suffered carbon monoxide poisoning as a result of the government’s negligence. The district court ruled that Hempfling’s claims were barred by the discretionary function exception to the Act. We reverse and remand.

As the parties are familiar with the facts, we recite them only as necessary. We review the district court’s application of the discretionary function exception de novo. Marlys Bear Medicine v. United States, 241 F.3d 1208, 1213 (9th Cir.2001). The exception preserves sovereign immunity under the Act for claims that are “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.” 28 U.S.C. § 2680 (a) (2002). The government bears the burden of proving that the exception applies. Marlys Bear Medicine, 241 F.3d at 1213 .

A two-part test is used to evaluate whether the exception applies. First,…