*

Honorable Thomas J. Meskill, Senior U.S. Circuit Judge for

the Second Circuit, sitting by designation. 

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
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
 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. 

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

factual allegations in her complaint as true. 1 See Gaubert, 499

U.S. at 327, 111 S.Ct. at 1276; Berkovitz, 486 U.S. at 540, 108
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.