                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3711
                                   ___________

                                         *
Lucas Riley,                             *
                                         *
             Plaintiff – Appellant,      *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Missouri.
United States of America,                *
                                         *
             Defendant – Appellee.       *
                                         *
                                    ___________

                             Submitted: March 15, 2007
                                Filed: May 17, 2007
                                 ___________

Before MELLOY, SMITH, and BENTON, Circuit Judges.
                            ___________

BENTON, Circuit Judge.

      Lucas E. Riley sued the United States under the Federal Tort Claims Act, 28
U.S.C. §§ 2671-80, for injuries caused by the alleged negligence of the United States
Postal Service (USPS). The district court1 dismissed the complaint based on
sovereign immunity. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.



      1
       The Honorable Terry I. Adelman, United States Magistrate Judge for the
Eastern District of Missouri.
                                          I.

      In February 2002, Riley’s car was stopped on Christopher Drive, waiting to turn
onto U.S. Highway 63. Mailboxes obscured his view of traffic. Believing the road
was clear, Riley started onto the highway. A pickup truck broadsided his vehicle,
causing serious injuries.

      Before the collision, the county sheriff and a deputy – residents near
Christopher Drive – complained to the Postmaster about the location of the mailboxes.
The deputy sheriff presented the Postmaster a petition, signed by many residents,
requesting they be moved. The Postmaster refused, citing the extra cost. After
Riley’s injuries, the USPS received letters and another petition. The relocation of the
mailboxes was then approved.

       Riley sued the United States, alleging that the USPS negligently placed,
maintained, and failed to relocate the mailboxes. The district court found sovereign
immunity applied, and thus it lacked subject matter jurisdiction. Riley appeals. "We
review a district court's decision to dismiss a complaint for lack of subject matter
jurisdiction de novo, placing the burden of proving the existence of subject matter
jurisdiction on the plaintiff.” Green Acres Enters., Inc. v. United States, 418 F.3d
852, 856 (8th Cir. 2005); see also LeMay v. United States Postal Serv., 450 F.3d 797,
799 (8th Cir. 2006) (same). “Because jurisdiction is a threshold question, the court
may look outside the pleadings in order to determine whether subject matter
jurisdiction exists.” Green Acres Enters., Inc., 418 F.3d at 856, quoting Osborn v.
United States, 918 F.2d 724, 728-30 (8th Cir.1990).

                                          II.

      The United States is immune from suit unless it consents. See Hercules, Inc.
v. United States, 516 U.S. 417, 422 (1996); United States v. Testan, 424 U.S. 392,
399 (1976). “Congress waived the sovereign immunity of the United States by

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enacting the FTCA, under which the federal government is liable for certain torts its
agents commit in the course of their employment.” C.R.S. by D.B.S. v. United States,
11 F.3d 791, 795 (8th Cir. 1993), citing 28 U.S.C. § 2674; see also 28 U.S.C. §
1346(b).

       The United States is, nevertheless, immune if an exception applies. Under 28
U.S.C. § 2680(a), the FTCA does not waive immunity for “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.”

        A two-part test determines when the discretionary function exception applies.
See C.R.S., 11 F.3d at 795, citing Berkovitz v. United States, 486 U.S. 531, 536
(1988). First, the conduct at issue must be discretionary, involving “an element of
judgment or choice.” See Berkovitz, 486 U.S. at 536; see also United States v.
Gaubert, 499 U.S. 315, 322 (1991) (“the exception covers only acts that are
discretionary in nature”). The “second requirement is that the judgment at issue be
of the kind that the discretionary function exception was designed to shield.” C.R.S.,
11 F.3d at 796, quoting Berkovitz, 486 U.S. at 536. “Because the exception's purpose
is to prevent judicial second-guessing of government decisions based on public policy
considerations, it protects only those judgments grounded in social, economic, and
political policy.” Id. at 796, quoting United States v. S.A. Empresa de Viacao Aerea
Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984); Appley Brothers v.
United States, 164 F.3d 1164, 1170 (8th Cir. 1999).

       The facts here are almost identical to Lopez v. United States, 376 F.3d 1055
(10th Cir. 2004). There, the plaintiffs’ vehicle collided with a pickup truck at an
intersection, causing significant injuries. Plaintiffs alleged that a row of mailboxes
obstructed their view. They sued the United States, claiming the USPS was negligent
for failing to take proper account of driver safety when locating the mailboxes. The

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court held that the discretionary function exception shielded the USPS from liability.
Id. at 1058, 1059.

        As in Lopez, the discretionary function exception protects the USPS from
liability in this case. First, the USPS’s decision on where to locate the mailboxes was
discretionary, involving an element of judgment or choice. See id. No federal statute
or rule mandated the USPS to locate the mailboxes at any particular place. Guided by
the Postal Operations Manual and the Management of Delivery Services Handbook,
the USPS determined that curbside delivery (as opposed to sidewalk or central
delivery) was most efficient for Christopher Drive. The Postmaster filed a declaration
in this case:

             [The] Post Office had chosen to deliver mail via curbside delivery
             for more than 20 years prior to this accident. . . . [C]urbside
             delivery was the most efficient mode of delivery for this area.
             Even with curbside delivery, this particular route is 74 miles long.
             Delivery to the home sites is not practicable since many homes in
             this area are set miles back from the highway. Additionally, in my
             experience many of the roads leading back to the homes are not
             maintained well enough to effect safe and efficient delivery of the
             mail.

Further, in 2001, the USPS surveyed this delivery route, “taking into consideration
factors including manpower, efficiency, economy, and safety.” It then “decided to
keep the current mode of delivery.” See C.R.S., 11 F.3d at 795 (“Decisions made at
the operational level, as well as decisions made at the policy-planning level, can
involve the exercise of protected discretion”); see also Walters v. United States, 474
F.3d 1137, 1140 (8th Cir. 2007). Based on these judgments and choices, the USPS’s
decision about the location of the mailboxes was discretionary.

     Riley contends that the USPS had no discretion and was bound by the “Green
Book.” That Book, incorporated by reference in 23 C.F.R. § 625.4, is published by

                                          -4-
the American Association of State Highway and Transportation Officials (AASHTO).
It addresses sight triangle standards at intersections. The Green Book contains
language such as: “After a vehicle has stopped at an intersection, the driver must have
sufficient sight distance to make a safe departure through the intersection area.”

       The Green Book provisions, however, are guidelines and not mandatory. See
Rothrock v. United States, 62 F.3d 196, 199 (7th Cir. 1995) (“despite the alleged
nonconformance with certain AASHTO standards, the [Federal Highway
Administration] is charged with balancing a mix of factors such as cost and safety.
This is inherently a discretionary judgment involving the balancing of a mix of policy
factors”). Cf. Rich v. United States, 119 F.3d 447, 451 (6th Cir. 1997) (explaining
that the “very language used in the manual” for bridge maintenance “indicates it is a
suggestion, not a requirement. . . . Further, AASHTO, the regulatory organization
plaintiff cites, recognizes its own limitations”); Miller v. United States, 710 F.2d 656,
666-67 (10th Cir. 1983) (“While portions of the standards, specifications, policies, and
guides deal with the specifics of engineering criteria for highways, they are not
prescribed as mandatory standards . . . but are instead part of the overall regulatory
scheme involving policy decisions and competing considerations”). This case is
unlike Aslakson v. United States, 790 F.2d 688, 693 (8th Cir. 1986), where the
government’s policy “clearly required” elevating its power lines if safety
considerations “compelled” such action, or Mandel v. United States, 793 F.2d 964,
967 (8th Cir. 1986), where the government did not comply with “the previously
adopted safety policy.”

      The Green Book itself says:

             The guidance supplied by this text . . . is based on established
             practices and is supplemented by recent research. This text is also
             intended to form a comprehensive reference manual for assistance
             in administrative, planning, and educational efforts pertaining to
             design formulation. The fact that new design values are presented

                                          -5-
             herein does not imply that existing streets and highways are
             unsafe, nor does it mandate the initiation of improvement
             projects. (emphasis added).

The Green Book states that the “intent of this policy is to provide guidance to the
designer by referencing a recommended range of values and dimensions. Sufficient
flexibility is permitted to encourage independent designs tailored to particular
situations.” Contrary to Riley’s argument, the Green Book further illustrates that the
USPS’s decision on locating the mailboxes is discretionary.

       As to the second part of the Berkovitz test, the judgment of where to locate the
mailboxes is of the kind that the discretionary function exception was designed to
shield. 39 U.S.C. § 403(b) provides:

             It shall be the responsibility of the Postal Service to maintain an
             efficient system of collection, sorting, and delivery of the mail
             nationwide . . . and to establish and maintain postal facilities of
             such character and in such locations, that postal patrons
             throughout the Nation will, consistent with reasonable economies
             of postal operations, have ready access to essential postal services.


Balancing personnel, efficiency, economy, and safety, the USPS chose curbside
delivery at the U.S.63-Christopher intersection, as opposed to other locations and
modes of delivery. See id.; see also Lopez, 376 F.3d at 1061 (“the decision of where
to place the mailboxes in question was clearly located on the policy side of the
spectrum. Placement of mailboxes entails a calculated decision, based on the weighing
of various costs and benefits, and not the mere carrying out of a legislative mandate
that can be applied without exercising judgment”). As in Lopez, the discretionary
function exception was designed to shield the USPS’s judgment in this case. Id.




                                          -6-
       Finally, Riley argues that even if the USPS is protected by the discretionary
function exception, this court should make “an exception to the exception” by
adopting the “dangerous condition exception” in Missouri’s waiver of sovereign
immunity as outlined in Martin v. Missouri Highway and Transp. Dep’t, 981 S.W.2d
577 (Mo. App. 1998). There, the state court, quoting Mo. Rev. Stat. § 537.600,
explained that the Missouri Highway and Transportation Commission’s immunity was
“expressly waived for . . . injuries caused by the dangerous condition of the public
entity's property.” Martin, 981 S.W.2d at 579, 583, 585. Riley concedes, however,
that he has “not found Eighth Circuit law approving the application of this doctrine.”
More importantly, the FTCA has no dangerous condition exception to the
discretionary function exception.

      The judgment of the district court is affirmed.
                     ______________________________




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