                                  ___________

                                  No. 96-1405
                                  ___________

Roger R. Chantal,                     *
                                      *
      Plaintiff-Appellant,            *
                                      * Appeal from the United States
                                      * District Court for the
     v.                               * Eastern District of Missouri.
                                      *
United States of America,             *
                                      *
                                      *
      Defendant-Appellee.             *



                                  ___________

                    Submitted:    November 22, 1996

                         Filed:   January 9, 1997
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge and SACHS,*
     District Judge.

                                  ___________

SACHS, District Judge.


     Roger Chantal appeals the district court's1 grant of summary judgment
in favor of the United States in this suit brought under the Federal Torts
Claim Act, 28 U.S.C. § 2671 et. seq. (FTCA).    The district court concluded
that plaintiff's claim was barred by the




     *The Honorable Howard F. Sachs, United States District
     Judge for the Western District of Missouri, sitting by
     designation.
     1
      The Honorable Charles A. Shaw, United States District Judge
for the Eastern District of Missouri.
discretionary function exception to the FTCA.          For the reasons discussed
below, we affirm.


                                        I.
     Above the grounds of the Jefferson National Expansion Memorial
National Historic Site in St. Louis, Missouri, rises the stainless steel
Gateway Arch erected to honor the people who contributed to the territorial
expansion of the United States.   See generally 16 U.S.C. §§ 450jj to 450jj-
9 (statutory provisions governing development and administration of the
Memorial).     As originally designed by Eero Saarinen in 1960, the base of
each leg of the Arch features a ramp leading to the subterranean complex
housing the Museum of Westward Expansion.        The ramp is bordered by a series
of step-like horizontally triangulated extensions which decrease in depth
until they blend into the downramp.           Sworn statements of the Memorial's
engineer and park historian indicate Saarinen designed these step-like
architectural features to aesthetically complement the angles of the Arch
and the descending ramps.     Since its construction, the Memorial has been
administered by the Department of the Interior through the National Park
Service.     See 16 U.S.C. § 450jj-5.


     On June 29, 1992, Chantal sustained injuries as a result of a fall
after tripping on one of the steps near the north leg of the Arch at a
point where the step was only four inches high.        He alleges the government
was negligent in maintaining the steps and/or failed to warn of the danger
posed by the unmarked shallow steps.2          He contends the government had a
duty to replace the steps with a ramp, install a railing to block off the
steps from use, or mark the edge of the steps with some form of visual
warning.




      2
       Chantal also pled, but tacitly abandoned during briefing,
claims of professional malpractice in designing the step-like
features without adequate safety consideration, and that a
negligently placed trash barrel obscured the presence of the step
upon which he tripped.

                                        -2-
                                         2
     The government filed a motion to dismiss, contending Chantal's suit
is barred by the discretionary function exception to the FTCA.            Several
exhibits were submitted with the motion.           The district court properly
treated the motion to dismiss as a motion for summary judgment after
providing Chantal the opportunity to submit additional material on the
issue presented.    See Fed. R. Civ. P. 12(b); Buck v. FDIC, 75 F.3d 1285,
1288 (8th Cir. 1996).     The district court concluded that the challenged
conduct involved discretionary functions immune from suit under the FTCA.
Chantal appeals this decision.3


                                        II.
     We   review   a   grant   of   summary   judgment   de   novo.   Maitland   v.
University of Minn., 43 F.3d 357, 360 (8th Cir. 1994).            Summary judgment
is appropriate if the record shows there are no disputed issues of material
fact and the moving party is entitled to judgment as a matter of law.         Fed.
R. Civ. P. 56(c).      Chantal does not assert that there are any disputed
issues of material fact.        Instead, he contends the government was not
entitled to judgment as a matter of law.       He argues that the discretionary
function exception does not apply because a federal regulation imposes a
mandatory course of action regarding the configuration of the steps at the
Memorial or, alternatively, that the decision not to warn visitors of the
alleged danger created by the unusually designed steps did not involve a
decision based on public policy considerations.




      3
      The district court also found that Chantal, as a nonhandi-
capped individual, lacked standing to bring an action for the
alleged noncompliance with regulations designed to implement the
agency's policy of handicap accessibility. The issue of standing
to rely on statutes and regulations adopted to protect persons with
physical handicaps could well be dispositive if our analysis went
beyond the discretionary functions issue to the issue of negligence
under Missouri law. Nevertheless, we need not address the issue at
present because we are convinced the discretionary nature of the
conduct at issue bars Chantal's tort claim.

                                        -3-
                                         3
                                    III.
      The FTCA generally provides that the United States shall be liable,
to the same extent as a private party, "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."    28 U.S.C. § 1346(b).    Under one of several
exceptions to this broad waiver of sovereign immunity, however, the
government is not liable for "[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).


      The Supreme Court has developed a two-step test to analyze whether
governmental conduct is immune from suit under the discretionary function
exception.    See Berkovitz v. United States, 486 U.S. 531, 536 (1988).    As
a   preliminary matter, the nature of the challenged conduct must be
determined since the exception "covers only acts that are discretionary in
nature, acts that `involv[e] an element of judgment or choice.'"       United
States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting Berkovitz, 486 U.S.
at 536).     If a "federal statute, regulation, or policy specifically pre-
scribes a course of action for an employee to follow," then the conduct
cannot involve an element of choice because the employee has no rightful
option but to comply.    Berkovitz, 486 U.S. at 536.


      Moreover, even if the conduct involves an element of choice, the
second step in the analysis requires us to decide whether the challenged
discretionary acts "are the kind that the discretionary function exception
was designed to shield."     Gaubert, 499 U.S. at 315.     Congress fashioned
this exception to prevent judicial "second-guessing" of decisions made by
government officials which are essentially grounded in "social, economic,
and political policy."      Berkovitz, 486 U.S. at 536-37 (quoting United
States v.




                                     -4-
                                      4
Varig Airlines, 467 U.S. 797, 814 (1984)).           The exception, when properly
construed, "protects only governmental actions and decisions based on
considerations of public policy."            Gaubert, 499 U.S. at 323 (quoting
Berkovitz, 486 U.S. at 537).    It thus "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."    Varig, 467 U.S. at 808.


                                        A.
     Chantal first attacks the district court's determination that the
Park Service's conduct relating to the step-like extensions involves
discretionary decisions.      He asserts that agency regulations promulgated
in 1987 to develop solutions to existing architectural and transportation
barriers   impeding   the   handicapped      require   that   the    Memorial   be   in
                                                                                4
compliance with the Uniform Federal Accessibility Standards (UFAS).


     Chantal contends that because the Park Service posted the interna-
tional symbol of handicap accessibility on the doors to the Museum of
Westward Expansion located at the bottom of the ramps descending from the
base of the Arch, it has pronounced the facility to be handicap accessible.
Under his reading of the regulations, the Park Service's decision not to
reassign   the   services   provided   at    the   Memorial   to    another   handicap
accessible location indicates the agency has opted to alter the facility
to achieve compliance, thereby binding itself to follow the mandatory
directives of the UFAS.     Although the government concedes the UFAS applies
to facilities constructed or altered after 1987, it asserts




     4
      The UFAS prescribes specific directives regarding changes in
levels of walking surfaces, prohibits steps of unequal height, and
requires that ramps rising more than six inches be flanked by
handrails. See 41 C.F.R. §§ 101.19.600 to 101.19.607 and Pt. 101,
Subpt. 101-19.6, App. A.

                                       -5-
                                        5
the Park Service has no obligation to modify an unaltered facility such as
the Memorial.


     The Department of the Interior promulgated regulations in 1987
prohibiting     handicap-based    discrimination       in    programs    or    activities
conducted     by   executive   agencies.        The   regulations   were      adopted   to
effectuate provisions of the Rehabilitation, Comprehensive Services, and
Developmental Disabilities Act of 1978.          See 43 C.F.R. §§ 17.501 to 17.570;
29 U.S.C. § 794.       Pursuant to these regulations, and subject to stated
exceptions, it is the general policy of the agency to "operate each program
or activity so that the program or activity, when viewed in its entirety,
is readily accessible to and usable by handicapped persons."                   43 C.F.R.
§ 17.550.     The regulatory scheme grants to the agency the authority to
decide whether an existing facility is handicap accessible and usable, when
viewed as a whole.       43 C.F.R. § 17.550(a).         If the agency determines a
facility does not meet this accessibility standard, selection of the
appropriate method to achieve compliance also rests within the agency's
discretion.    43 C.F.R. § 17.550(b) (stating agency may utilize any methods
that make its programs or activities "readily accessible to and usable by
handicapped persons" and "is not required to make structural changes in
existing    facilities    where   other    methods     are   effective    in   achieving
compliance").      Contrary to Chantal's interpretation, the regulations do not
mandate comprehensive alterations of existing facilities.               Rather, they set
forth a policy of handicap accessibility while granting the agency broad
discretionary authority to achieve compliance with respect to existing
facilities.    The fact the agency has posted a recognized symbol of handicap
accessibility does not strip this discretionary power from the agency.                  At
most, the posting of the symbol represents the agency's view that the
Memorial is in compliance with the regulatory handicap accessibili-




                                          -6-
                                           6
ty standard without alteration.5   Compliance with the detailed specifica-
tions of the UFAS is required only if the agency concludes that alteration
is necessary to meet the accessibility standard.            Even then, only the
portions altered must comply with the UFAS.        43 C.F.R. § 17.551.6


      The Memorial undisputedly is an existing facility within coverage of
the   relevant   regulations.   Chantal      acknowledges   that   the   step-like
extensions were part of the original design.         Because no alteration of
these steps has occurred, the UFAS does not apply.             Without specific
directives applying to an existing facility like the Memorial, the agency's
conduct in complying with the regulatory scheme involves acts that are
discretionary in nature.


      Although the regulations articulate the agency's general policy of
handicap accessibility, the stated directives do not "[n]ecessarily require
the agency to make each of its existing facilities or every part of a
facility accessible to and usable by handicapped persons."               43 C.F.R.
§ 17.550(a)(1).    Additionally, the



          5
         We have difficulty faulting this conclusion.       Chantal
maintains that the Memorial is not handicap accessible, without
clearly articulating how access to the museum may be inaccessible.
The configuration of the series of steps on which he fell forms the
basis of Chantal's tort claim. Any argument that these steps must
be altered because they are not handicap accessible apparently
fails because the adjoining ramps provide an alternate access to
the museum.
      6
       This section of the regulations reads as follows:

      § 17.551 Program accessibility:             New construction and
      alterations.

           Each building or part of a building that is con-
      structed or altered by, on behalf of, or for the use of
      the agency shall be designed, constructed, or altered so
      as to be readily accessible to and usable by handicapped
      persons. The definitions, requirements, and standards of
      the Architectural Barriers Act (42 U.S.C. 4151-4157) as
      established in 41 CFR 101-19.600 to 101-19.607 apply to
      buildings covered by this section.

                                       -7-
                                        7
regulatory directives for program accessibility do not, "[i]n the case of
historic preservation programs, require the agency to take any action that
would result in a substantial impairment of significant historic features
of an historic property."          43 C.F.R. § 17.550(a)(2).          Discretionary
decisions are inherent in the application of these regulations.


      Chantal argues, however, that the agency's decision to adopt the
regulations imposed a mandatory directive on the Park Service to comply
with the UFAS in order to properly effectuate the agency's policy of
handicap accessibility.    He asserts that the Park Service's failure to meet
the UFAS directives subjects the government to tort liability, relying
primarily on Mandel v. United States, 793 F.2d 964 (8th Cir. 1986), to
support his position.      Mandel involved an FTCA claim by a patron of a
national park who sustained severe injuries by hitting his head on a
submerged rock after diving into a swimming hole recommended by a Park
Service ranger.    Chantal's reliance on Mandel is misplaced.           The conduct
at issue in Mandel was attributable not to the agency's decision to
institute a policy of warning park users of the dangers of swimming in the
river, but to the failure of an individual park ranger to comply with the
safety policy previously adopted.         Mandel, 793 F.2d at 967.        Chantal's
claim is readily distinguishable because it challenges discretionary
decisions made by the agency itself with respect to achieving regulatory
compliance at the Memorial.    We therefore reject Chantal's contention that
the   Park   Service's   conduct   at   issue   did   not   involve   discretionary
decisions.


                                         B.
      Chantal next argues that even if the agency's conduct involved
discretionary acts, these acts did not involve the kind of decisions which
the discretionary function exception was designed to protect because no
policy considerations were involved.      The government asserts that the step-
like features at the base of the Arch were viewed by Eero Saarinen as an
integral part of his




                                        -8-
                                         8
widely-acclaimed design of the Memorial.      The record on appeal contains the
affidavits of the Memorial's park engineer and historian confirming that
Saarinen's design was selected because the steps aesthetically complemented
the angles of the Arch and the ramps.


     Generally,    when     governmental    policy   permits   the   exercise    of
discretion, it is presumed that the acts are grounded in policy.           United
States v. Gaubert, 499 U.S. 315, 324 (1991).            Chantal has offered no
evidence rebutting this presumption.          Nor does he assert that he was
injured as a result of negligently performed regular maintenance of the
steps.   Instead, he attempts to persuade us that the Park Service should
have placed less emphasis on aesthetics and given more consideration to
visitors' safety by either altering the steps or marking them with visual
warnings simply because the Memorial is a man-made object rather than a
naturally created hazard.      We reject this argument.


     The   Park   Service    is   statutorily   charged    with   preserving    the
"fundamental purpose of the park by [conserving] the scenery and historical
object[s] . . . by such means as will leave them unimpaired for the
enjoyment of future generations."     Soni v. United States, 739 F.Supp. 485,
487 (E.D. Mo. 1990) (quoting 16 U.S.C. § 1).         This mandate would require
the agency to balance the safety benefit of making changes to the steps
with the aesthetic effect of such changes on the Memorial's overall design
and its historic significance.       It is well established that a decision
which requires the weighing of competing interests is "susceptible to
policy analysis" and typifies the kind of governmental decisions which
Congress intended to shield from judicial second-guessing.           Gaubert, 499
U.S. at 325; see also Bowman v. United States, 820 F.2d 1393 (4th Cir.
1987) (finding decision not to place guardrails or warning signs along
embankment of scenic highway resulted from balancing factors such as
"safety,   aesthetics,    environmental     impact   and   available    financial
resources" and thus involved a policy




                                      -9-
                                       9
judgment covered by the discretionary function exception); Cassagnol-
Figueroa v. United States, 755 F.Supp. 514 (D. P.R. 1991) (concluding
decision not to install safety features at low wall of 450-year-old fort
based on preservation of historical significance of original design was
policy-based exercise of discretion).7    Chantal analogizes his case to the
FTCA action in Watt v. United States, 444 F.Supp. 1191 (D.C. D.C. 1978),
for the negligent design of visually unobtrusive semi-circular platform
steps constructed on government property.    Although the Watt court entered
judgment against the government after a bench trial, the discretionary
function exception was not a factor in the court's analysis.    Somewhat more
in point analytically is the previous ruling by Judge Filippine in an FTCA
case, holding that aesthetically-premised decisions concerning the Memorial
involve policy considerations protected by the discretionary function
exception.     Soni v. United States, 739 F.Supp. 485 (E.D. Mo. 1990)
(decision to angle handrail on steps at the Gateway Arch in order to
preserve aesthetic quality of the Arch design involved a policy decision).


                                    IV.
     We conclude the district court did not err in determining that the
FTCA's discretionary function exception bars Chantal's claim.   Accordingly,
we affirm the judgment of the district court.


     Affirmed.


     A true copy.


             Attest:




        7
        Plaintiff would     distinguish between the preservationist
interest in the old fort    and the Saarinen design of 1960. Public
access to the fort dates    from 1949, however, so the accessibility
decisions were made in      roughly the same era.    We recognize a
preservationist interest    in the Arch and its environs.

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