NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________ 

No. 23-2779

_______________ 

WALTER DIBEASE, MONICA DIBEASE

v.

UNITED STATES OF AMERICA

Walter DiBease,

 Appellant 

_______________ 

On Appeal from the United States District Court

For the District of New Jersey

(Civ. Action No. 22-cv-05931)

District Judge: Honorable Christine P. O’Hearn

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Submitted Under Third Circuit L.A.R. 34.1(a)

September 3, 2024

Before: JORDAN, HARDIMAN, and PORTER, Circuit Judges

(Filed September 19, 2024)

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OPINION

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JORDAN, Circuit Judge.

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent. 
2

Walter DiBease slipped and fell outside of a United States Post Office while 

attempting to access the lobby before normal business hours. He sustained injuries from 

the fall and sued the United States for negligence under the Federal Tort Claims Act (the 

“FTCA”). The government moved to dismiss, claiming sovereign immunity under the

discretionary function exception to the FTCA. The District Court agreed with the 

government and dismissed the case for lack of subject matter jurisdiction. We will 

affirm.

I. BACKGROUND

A. Factual Background

On a Friday morning in February 2021, about 25 minutes before normal business 

hours, DiBease slipped and fell on a snow and ice covered walkway outside of the United 

States Post Office in Haddonfield, New Jersey (the “Post Office”), while trying to access

the lobby, which is open all the time. He suffered severe injuries from the fall. 

The U.S. Postal Operations Manual (the “Operations Manual”) says that, “[a]t the 

postmaster’s discretion, lobbies may remain open 24 hours a day to allow customers 

access to PO boxes and self-service equipment[.]” U.S. Postal Service, Postal

Operations Manual § 126.43 (2002), https://www.nalc.org/workplaceissues/resources/manuals/pom/POM-July-2016.pdf [https://perma.cc/4W2Q-9CGX]. 

Under the Postal Service Supervisor’s Safety Handbook (the “Safety Handbook”),

however, postmasters are required to “establish snow and ice removal plans where 

necessary[,]” to “[k]eep snow and ice away from utility and fire protection equipment” 

and to “[p]rovide for reinspection and cleaning as often as necessary to handle drifting 
3

snow and refreezing.” U.S. Postal Service, Supervisor’s Safety Handbook § 8-15.2

(2008), https://www.nalc.org/workplace-issues/resources/manuals/other/EL-801-June2008-Supervisors-Safety-Handbook-with-revisions-through-May-1-2014.pdf

[https://perma.cc/VS2J-MJVD].

B. Procedural Background

DiBease, after exhausting his administrative remedies through the Postal Service,1

filed a complaint in District Court, alleging negligence under the FTCA, and further 

alleging that the postmaster’s decision to not remove snow and ice from the Post Office’s 

walkways when the lobby was open even after normal business hours was a breach of

duty of the sort shared by all businesses in New Jersey. The government moved to 

dismiss for lack of subject matter jurisdiction, arguing that, while the United States 

waives its sovereign immunity for certain torts under the FTCA, it does not waive such 

immunity if the tort arises when a government employee is acting within delegated 

discretion. That proviso to sovereign immunity is known as the “discretionary function 

exception.” The District Court held that the exception applied and that it lacked 

jurisdiction to hear the case, so it granted the government’s motion and dismissed 

DiBease’s claim without prejudice. DiBease has timely appealed. 

1 DiBease sought relief through the Postal Service’s remedial process by 

submitting a claim seeking $750,000 in damages. The Postal Service denied his claim in 

April 2022 and informed him that he had six months to sue in a United States District 

Court if he was dissatisfied with that decision. DiBease filed his complaint in the U.S. 

District Court for the District of New Jersey in October 2022. 
4

II. DISCUSSION2

“[T]he United States is immune from suit unless it consents to be sued.” WhiteSquire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). In the FTCA, the 

government waived its immunity for its agents’ torts “caused by [a] negligent ... act or 

omission ... if a private person[] would be held liable to the claimant” under the laws of 

the jurisdiction in which the act or omission occurred. Id. at 457 (quoting 28 U.S.C. 

§ 1346(b)(1)). But that waiver does not cover discretionary functions – that is, when a

claim arises from an agent’s “exercise or performance” of “a discretionary function or 

duty ... whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).

“The discretionary function exception ... marks the boundary between Congress’

willingness to impose tort liability upon the United States and its desire to protect certain 

governmental activities from exposure to suit by private individuals.” United States v. 

2 DiBease invoked the District Court’s jurisdiction under 28 U.S.C. § 1331. We 

have jurisdiction to hear this appeal under 28 U.S.C. §1291. 

The District Court determined that the government’s motion presented a factual 

challenge to subject matter jurisdiction, and we agree. See Hartig Drug Co. v. Senju 

Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016) (“A facial 12(b)(1) challenge ... attacks 

the complaint on its face without contesting its alleged facts .... But a factual 12(b)(1) 

challenge attacks allegations underlying the assertion of jurisdiction in the complaint, and 

it allows the defendant to present competing facts.”). In reviewing a factual challenge to 

subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), “the court may consider 

evidence outside the pleadings.” U.S. ex rel. Customs Fraud Investigations, LLC v. 

Victaulic Co., 839 F.3d 242, 251 (3d Cir. 2016) (citation omitted). 

In reviewing a factual 12(b)(1) challenge, “we exercise plenary review over the 

District Court’s legal conclusions, [and] we review the Court’s findings of fact, including 

findings related to jurisdiction, only for clear error.” Davis v. Wells Fargo, 824 F.3d 333, 

346 (3d Cir. 2016).
5

S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 808 (1984). With the

exception, Congress sought to “prevent judicial ‘second-guessing’ of legislative and 

administrative decisions grounded in social, economic, and political policy through the 

medium of an action in tort[.]” United States v. Gaubert, 499 U.S. 315, 323 (1991) 

(quoting S.A. Empresa, 467 U.S. at 814). To invoke the discretionary function exception, 

the government must show two things: first, that its agent’s action “involv[ed] an element 

of judgment or choice,” and second, that the judgment involved was “of the kind that the 

... exception was designed to shield[,]” i.e., “decisions based on considerations of public 

policy.” Id. at 322-23 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). 

A. The conduct at issue must be viewed broadly.

“As a threshold matter, before determining whether the discretionary function 

exception applies, a court must identify the conduct at issue.” S.R.P. ex rel. Abunabba v. 

United States, 676 F.3d 329, 332 (3d Cir. 2012). DiBease argues that the conduct at issue

is the postmaster’s failure to keep the Post Office premises free of hazardous snow and 

ice, warn patrons about the danger, or place barricades around unsafe areas. The 

government contends that the conduct must be considered at a greater level of 

abstraction: “[It] is the postmaster’s decision to provide 24-hour lobby access and the 

conditions under which to do so.” (Answering Br. at 16.) The government is correct.

The conduct at issue is defined by the scope of the agent’s discretion. See

Merando v. United States, 517 F.3d 160, 168 (3d Cir. 2008) (holding that “[t]he relevant 

inquiry is whether the controlling statutes, regulations, and administrative policies 

mandate” a specific course of action). The postmaster chose to keep the Post Office open 
6

twenty-four hours, and the administrative policies here do not mandate a snow removal 

process for non-business hours. Operations Manual § 126.43; Safety Handbook § 8-15.2. 

Without express instruction, the decision to keep the lobby open necessarily involved

“decisions as to the precise manner in which to do so[] and ... execution of those 

decisions[,]” Merando, 517 F.3d at 168, including a snow and ice removal plan. Thus, 

we agree with the District Court that the relevant conduct is keeping the lobby open for 

twenty-four hours and choosing not to remove snow and ice from walkways and 

sidewalks outside the Post Office outside of normal business hours. See id. at 166

(“Plaintiffs’ ... focus ... is too narrow” (quoting Autery v. United States, 992 F.2d 1523, 

1527 (11th Cir. 1993))).

B. The conduct at issue was discretionary.

To determine if the conduct at issue was discretionary, we look at whether the 

government agent’s action “involve[d] an element of judgment or choice[.]” Gaubert, 

499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536). That excludes cases where a 

“federal statute, regulation, or policy specifically prescribes a course of action for an 

employee to follow,” in which case “the employee has no rightful option but to adhere to 

the directive.” Id. (quoting Berkovitz, 486 U.S. at 536). 

The Operations Manual explicitly leaves to “the postmaster’s discretion” the 

option of keeping the post office lobby open to the public during non-business hours.

§ 126.43. The Safety Handbook requires the postmaster to “establish snow and ice 

removal plans where necessary[,]” and to “reinspect[] and clean[] as often as necessary to 

handle drifting snow and refreezing.” § 8-15.2. That responsibility, qualified by the 
7

phrase “where necessary” and “as often as necessary[,]” gave the postmaster a measure of 

choice. Id.; see Williams v. United States, 2018 WL 5077652, at *1-8 (W.D. Va. October 

18, 2018) (holding that the Operations Manual and Safety Handbook “leave[] room for 

judgment” by using the language “where necessary” and “as often as necessary”). Thus, 

the conduct at issue – again, keeping the lobby open for 24 hours and not clearing snow 

and ice during non-business hours – was discretionary, and the first prong of the 

discretionary function exception is satisfied.

C. The conduct at issue was the type of conduct that the FTCA was 

designed to shield.

In determining whether the postmaster’s discretion was “of the kind that the 

discretionary function exception was designed to shield,” we ask whether the decisions 

made are “susceptible to policy analysis.” Gaubert, 499 U.S. at 322-23, 225. “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.” Id. at 324. 

“That presumption, however, can be rebutted.” S.R.P. ex rel. Abunabba v. United States, 

676 F.3d 329, 336 (3d Cir. 2012).

The government argues that the postmaster’s conduct was rooted in the policy 

considerations of convenience, safety, and budgetary concerns: 

[A] postmaster may consider ... whether staff is needed onsite after hours 

and, if so, the type of staff (e.g., clerks, maintenance, security, etc.) and the 

costs thereof; the degree of maintenance (if any) that should be conducted 

after hours; the extent to which the premise’s temperature should be 

maintained after hours and the expense of doing so; or whether the premises 

should be lit after hours and the expense of doing so. 
8

(Answering Br. at 31-32.) DiBease disagrees, arguing there were no “policy 

considerations involving post office operations” involved in the decision. (Opening Br. 

at 28.) Instead, he asserts that, in defining the conduct at issue as the mere failure to 

remove ice and snow, “this case is a ‘garden variety’ tort claim that arises from the 

common law duty imposed upon commercial landowners[.]” (Opening Br. at 41-42.) 

Congress requires the United States Postal Service to “provide prompt, reliable, 

and efficient services to patrons in all areas.” 39 U.S.C. § 101(a). When deciding to 

keep the Post Office lobby open, the postmaster “allow[ed] customers access to P.O. 

boxes and self-service equipment at any time” while determining that custodial staff were 

not needed during non-business hours. (J.A. at 38.) “We can analyze that [decision] in 

policy terms[, a]nd reasonable minds can differ” on whether and how to keep the lobby 

open all day while keeping the premises reasonably safe during winter, so we agree with 

the District Court that the second discretionary function prong is met. Clark v. Sec’y of 

United States Navy, 102 F.4th 658, 662 (3d Cir. 2024); see also Bell v. United States, 238 

F.3d 419 (6th Cir. 2000) (unpublished table decision) (“The postmaster’s decision to 

allow access to the public – without requiring postal employees to check the facility 

whenever it rains during the off-hours – ... fit[s] within the second prong of the 

discretionary function test.”).

D. No carve-out applies.

In some cases, initial decisions may be susceptible to policy analysis, but 

“subsequent decisions ... [are] not necessarily protected.” Cestonaro v. United States,

211 F.3d 749, 756 (3d Cir. 2000). That is when the subsequent decisions themselves are 
9

not “grounded in the policy objectives with respect to the management of the” 

government site. Id. at 757; see Gotha v. United States, 115 F.3d 176, 181 (3d Cir. 1997)

(the discretionary function exception excludes “mundane, administrative, garden-variety, 

housekeeping problem[s] that [are] ... far removed from the policies applicable to the 

[government]’s mission[.]”); cf. Indian Towing Co. v. United States, 350 U.S. 61, 69

(1955) (“The Coast Guard need not undertake the lighthouse service. But once it 

exercised its discretion to operate a light ... and engendered reliance on the guidance 

afforded by the light, it was obligated to use due care to make certain that the light was 

kept in good working order[.]”). 

DiBease argues that clearing snow and ice is a “garden-variety housekeeping 

problem” unprotected by the discretionary function exception. (Opening Br. at 20-21.) 

That may be true if we analyzed the conduct at issue narrowly, looking only at the failure 

to clear snow and ice. See Bolt v. United States, 509 F.3d 1028, 1034 (9th Cir. 2007) 

(“[C]learing snow and ice from parking lots constitute[s] a matter of routine maintenance 

beyond the scope of the discretionary function exception[.]”). But viewed together with 

the decision to keep the lobby open twenty-four hours, the decision to clean the snow 

only once the Post Office opened for the day was part of a larger constellation of choices 

susceptible to policy analysis. See also Clark, 102 F.4th at 662 (refusing to extend the 

garden-variety-problem carve-out because it “applies only to truly mundane problems, 

such as failures to install lights, stairways, or railings[, a]nd it seems hard to justify under 

the language of the statute” (citation omitted)). Thus, the discretionary function 

exception applies here and immunizes the government from suit.
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III. CONCLUSION

We are mindful of Mr. DiBease’s plight, and one can certainly question the 

wisdom of the choice made by the postmaster in Haddonfield, but whether we agree with 

it or not is irrelevant. Sovereign immunity applies, so we will affirm the judgment of the 

District Court.