United States Court of Appeals,
Eleventh Circuit.
No. 95-3584.
Mary Jo HUGHES, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
April 21, 1997.
Appeal from the United States District Court for the Middle
District of Florida.
Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL*,
Senior Circuit Judge. (No. 94-85-CIV-OC-10), Wm. Terrell Hodges,
Judge.
PER CURIAM:
Mary Jo Hughes was shot by two assailants in the parking lot
of the United States Post Office in Ocala, Florida. She brought
suit against the United States under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346, 2671-80, alleging negligence on the part
of the United States Postal Service in failing to provide adequate
security. The district court dismissed Hughes' claim for lack of
subject matter jurisdiction because it concluded that the alleged
negligent conduct by the Postal Service fell within the
discretionary function exception of the FTCA. We affirm.
BACKGROUND
At around 10:45 p.m. on April 19, 1993, Hughes was shot by two
assailants as she sat in her car in the parking lot of the Ocala
Post Office. She sustained serious bodily injury. Hughes had just
returned from retrieving her mail from her post office box, access
*
Honorable Thomas J. Meskill, Senior U.S. Circuit Judge for
the Second Circuit, sitting by designation.
to which was permitted twenty-four hours a day.
Hughes filed a complaint against the United States under the
FTCA. In her complaint, she alleges negligence on the part of the
Postal Service in permitting the Ocala Post Office to remain open
on a twenty-four hour basis while (1) providing no security for its
patrons; (2) providing inadequate lighting around the building and
in the parking lot during nighttime hours; and (3) installing and
maintaining hedges, shrubbery, and trees on the premises that
provided places for criminals to hide and obscured the artificial
lighting. In her response to the Government's motion to dismiss,
Hughes says the alleged negligence is not the Postal Service's
decision to provide twenty-four hour access or its decision to
locate the post office in an allegedly high crime area. Instead,
her response characterizes the alleged negligence as acts or
omissions regarding the post office premises after these two
decisions were made.
The district court concluded that the alleged negligent
conduct fell within the discretionary function exception of the
FTCA, 28 U.S.C. § 2680(a). In reaching that conclusion, the court
utilized the two-part test refined by the Supreme Court in United
States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335
(1991) and applied by this court in Powers v. United States, 996
F.2d 1121 (11th Cir.1993), and Autery v. United States, 992 F.2d
1523 (11th Cir.1993).
ISSUE ON APPEAL AND STANDARD OF REVIEW
We must decide whether the discretionary function exception
to the FTCA, 28 U.S.C. § 2680(a), bars a suit against the United
States for the alleged failure of the Postal Service to provide
adequate security measures at a post office. We review the
district court's interpretation and application of the
discretionary function exception de novo. Powers, 996 F.2d at
1123.
DISCUSSION
Congress, through the Federal Tort Claims Act, has waived the
sovereign immunity of the United States by giving district courts
jurisdiction over civil actions against the United States
for injury or loss of property, or personal injury or death
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment, under circumstances where the United
States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or
omission occurred.
28 U.S.C. § 1346(b). Congress, however, has excepted from this
limited waiver "[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."
28 U.S.C. § 2680(a).
In a series of cases, the Supreme Court has articulated and
refined the analysis used in applying this discretionary function
exception. See Gaubert, 499 U.S. at 315, 111 S.Ct. at 1267;
Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct.
1954, 100 L.Ed.2d 531 (1988); United States v. S.A. Empresa De
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104
S.Ct. 2755, 81 L.Ed.2d 660 (1984); Dalehite v. United States, 346
U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). This court has
applied that analysis in Powers, 996 F.2d at 1121, and Autery, 992
F.2d at 1523.
We apply a two-part test to determine whether challenged
conduct by a government employee falls within the discretionary
function exception. Powers, 996 F.2d at 1124. First, we must
determine whether the challenged conduct involves an element of
judgment or choice. Id. Second, we must determine "whether that
judgment is of the kind that the discretionary function exception
was designed to shield." Gaubert, 499 U.S. at 322-23, 111 S.Ct. at
1273 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1959).
In reviewing the district court's dismissal of Hughes'
complaint for lack of subject matter jurisdiction, we accept the
1
factual allegations in her complaint as true. See Gaubert, 499
U.S. at 327, 111 S.Ct. at 1276; Berkovitz, 486 U.S. at 540, 108
1
The district court in its order and the parties on this
appeal treat the Government's motion to dismiss as a factual
attack on the district court's subject matter jurisdiction. The
motion, however, is more properly treated as a facial attack.
Nothing in the Government's motion or memorandum in support
thereof challenges the factual assertions made in Hughes'
complaint. In fact, the Government specifically argues in its
memorandum that Hughes' claims "are barred by the discretionary
function exception to the FTCA, even assuming arguendo the
accuracy of allegations that such discretion was not properly
exercised." (R. 1-31 at 10.) Our concern under the
discretionary function exception is not whether the allegations
of negligence are true; instead, our concern is whether the
nature of the conduct involves judgment or choice and whether
that judgment is of the kind that the exception was designed to
protect. See Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273;
Dalehite, 346 U.S. at 33-34, 73 S.Ct. at 966-67.
Furthermore, the Government argues that the plaintiff
bears the burden of showing that the government's conduct is
not protected by the discretionary function exception. We
did not decide that issue in Autery, 992 F.2d at 1526 n. 6,
and we do not address it here. The allocation of burdens is
not significant when the relevant facts are undisputed.
S.Ct. at 1960-61; Powers, 996 F.2d at 1125.
Under the first part of the test, the "relevant inquiry is
whether the controlling statute or regulation mandates that a
government agent perform his or her function in a specific manner."
Powers, 996 F.2d at 1125. See also Autery, 992 F.2d at 1528.
Congress has given the Postal Service the general power to operate
and maintain buildings and facilities. 39 U.S.C. § 401(6). The
regulations promulgated under this general statutory authority
designate the Chief Postal Inspector as the Security Officer for
the Postal Service and make him "responsible for the issuance of
instructions and regulations pertaining to security requirements
within the Postal Service." 39 C.F.R. § 231.1(b). Regarding each
individual post office, the postmaster or a supervisor designated
by the postmaster acts as Security Control Officer for that post
office and is "responsible for the general security of the post
office, its stations and branches, in accordance with rules and
regulations issued by the Chief Postal Inspector." 39 C.F.R. §
231.2. In addition, the Postal Operations Manual serves as
regulations of the Postal Service. 39 C.F.R. § 211.2(a)(2). At
the time of Hughes' shooting, the Postal Operations Manual stated
that "[a]t the postmaster's discretion, lobbies may remain open
when no one is on duty to allow customer access to post office
boxes and self-service equipment, provided customer safety,
security provisions and police protection are deemed adequate."
Postal Operations Manual, § 221.2.23 (Issue 5, 1/31/83).
These general guidelines do not mandate a specific course of
conduct regarding security at a post office. Instead, security
decisions such as the ones challenged here—the posting of security
personnel in the lobby or in the parking lot, the location and
intensity of lighting, and the planting and maintenance of trees
and shrubbery—are left to the discretion of the Security Control
Officer for each post office in accordance with regulations
established by the Chief Postal Inspector. There is ample room for
postal employees to exercise judgment and choice. In fact, the
Postal Operations Manual specifically states that the postmaster
has discretion in assessing the need for security with regards to
providing twenty-four hour access. "Only if a federal statute,
regulation, or policy specifically prescribes a course of action
embodying a fixed or readily ascertainable standard, will a
government employee's conduct not fall within the discretionary
function exception." Autery, 992 F.2d at 1529 (citation and
quotations omitted) (emphasis in original). Because there are no
such statutes, regulations, or policies present here, the first
part of the discretionary function test is satisfied.
Under the second part of the test, we must decide whether the
judgment afforded postal employees regarding security measures is
the type of judgment that the discretionary function exception was
designed to shield. Here, we focus on whether the challenged
actions are "susceptible to policy analysis." Powers, 996 F.2d at
1125 (quotation omitted). Protected "[d]iscretionary conduct is
not confined to the policy or planning level." Gaubert, 499 U.S.
at 325, 111 S.Ct. at 1275. "Day-to-day management ... regularly
requires judgment as to which of a range of permissible courses is
the wisest." Id. at 325, 111 S.Ct. at 1275. As charged by
Congress, "[t]he Postal Service shall have as its basic function
the obligation to provide postal services to bind the Nation
together through the personal, educational, literary, and business
correspondence of the people." 39 U.S.C. § 101(a). To this end,
the Postal Service "shall provide prompt, reliable, and efficient
services to patrons in all areas and shall render postal services
to all communities." Id. Decisions involving security at post
offices are a fundamental part of the economic and social policy
analysis required to achieve these goals. Moreover, we need not
inquire whether any particular postal employee here engaged in a
weighing of policy considerations in the decision regarding
security at the Ocala Post Office. "When established governmental
policy, as expressed or implied by statute, regulation, or agency
guidelines, allows a Government agent to exercise discretion, it
must be presumed that the agent's acts are grounded in policy when
exercising that discretion." Gaubert, 499 U.S. at 324, 111 S.Ct.
at 1274. Postal employees must decide how to allocate resources so
as to best serve customers in a prompt, reliable, and efficient
manner. While financial considerations alone may not make a
decision one involving policy, such considerations are particularly
relevant to the Postal Service, which is "operated as a basic and
fundamental service provided to the people." 39 U.S.C. § 101(a).
We will not second guess the Postal Service's resource allocation
decisions here. See Powers, 996 F.2d at 1126; Autery, 992 F.2d at
1531.
CONCLUSION
Decisions by the Postal Service regarding security at post
offices fall within the discretionary function exception of the
FTCA, and the district court properly concluded that it lacked
subject matter jurisdiction over Hughes' action.
AFFIRMED.