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Sanders v. United States

United States District Court, D. South Carolina, Charleston Division

June 18, 2018

Felicia Sanders, individually and as legal custodian for K.M., a minor, Plaintiff,
v.
United States of America, Defendant.

          ORDER AND OPINION

          Richard Mark Gergel United States District Judge

         This action and fifteen other related actions[1] were filed by surviving victims and the estates of deceased victims who suffered injury or death at the hands of Dylann Roof when he entered a bible study group at Emanuel A.M.E. Church on June 17, 2015, and murdered nine persons with a Glock Model 41 pistol. Under federal law, Roofs narcotics arrest on February 28, 2015, disqualified him from receiving a firearm. Nevertheless, he was able to purchase the Glock pistol from a federally licensed firearms dealer on April 11, 2015 because the FBI's National Instant Criminal Background Check System ("NICS") failed to discover Roofs disqualifying arrest record. Plaintiffs have brought this present action against the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80, for alleged acts and omissions of federal employees associated with the NICS.

         The United States moved to dismiss these actions for lack of jurisdiction and failure to state a claim, asserting that these claims are barred under the discretionary function exception of the FTCA, 28 U.S.C. § 2680(a), the immunity granted federal employees responsible for providing information to the NICS, 18 U.S.C. § 922(t)(6)(A), and that Plaintiffs fail to state a claim under South Carolina tort law. Plaintiffs opposed the motion and moved for jurisdictional discovery, arguing the Court required a more complete factual record before addressing the Government's jurisdictional claims. The Court agreed and granted Plaintiffs' motions, authorizing extensive jurisdictional discovery. This was apparently the first instance where any party has had the opportunity to obtain discovery regarding NICS procedures and operations. The Government thereafter renewed its motions to dismiss and the parties briefed the issues. The Court held an evidentiary hearing on March 20, 2018, and the parties were allowed to file additional supplemental materials in the weeks following the hearing. With the completion of jurisdictional discovery and the full briefing of the legal issues involved, the Court now rules on the pending motion to dismiss.

         I. Legal Standards

         A. The Federal Tort Claims Act

         The FTCA authorizes lawsuits against the United States for wrongful acts or omissions of federal employees acting within the scope of their duties in circumstances where a private person would be liable for similar claims in the jurisdiction where the claim arose. 28 U.S.C. § 1346(b). The FTCA's authorization of actions against the United States constitutes a limited waiver of sovereign immunity, the common law doctrine that prohibited claims against the Government. There are, however, significant exceptions to the Government's waiver of sovereign immunity under the FTCA, the most relevant here being the provision that the Government cannot be held liable "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 discretionary function exception is grounded on the premise that the judiciary should not "second guess" policy choices of the Executive Branch through private litigation. 28 U.S.C. § 2680(a); Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).

         A claim falls within the discretionary function exception if two elements are satisfied. First, the challenged conduct must be the product of a discretionary decision in which the governmental conduct was a matter of judgment or choice. However, if law or policy mandated a particular course of action, the discretionary function exception does not apply. Berkovits, 486 U.S. at 536 ("[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.")- Second, the decision must be "based on considerations of public policy." This second prong limits the discretionary function exception to the kinds of judgments the exception "was designed to shield." Id. at 536-37.

         In this matter, the Court must determine whether the specific alleged negligent acts or omissions of the federal employees or the federal agency, here relating to the processing of the Roof background check, violated a controlling, mandated legal standard in which the federal employees had no choice but to follow. If the alleged acts or omissions violated controlling law or policy, the discretionary function exception would not apply. On the other hand, if the challenged acts or omissions were the product of a policy judgment or discretionary decision by the agency, the claim is subject to being barred. Further, even if the acts or omissions were the product of a discretionary decision of the agency, such acts or omissions must be related to agency policy. For instance, a federal employee may be said to be exercising discretion in operating a motor vehicle, but a dispute over negligent driving resulting in an accident is not barred by the discretionary function exception because the act in question does not relate to agency policy.

         When the Government asserts that a claim is barred by the discretionary function exception, the burden is on the Plaintiff to demonstrate that the Court has subject matter jurisdiction because the discretionary function exception does not apply. All waivers of sovereign immunity should be "strictly construed" in favor of the Government. Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005). "The federal courts have held consistently that they lack subject matter jurisdiction if the discretionary function exception bars the suit." Williams v. United States, 50 F.3d 299, 305 (4th Cir. 1995).

         B. Immunity for claims arising under the NICS

         The Government asserts that a specific federal statute, 18 U.S.C. § 922(t)(6), grants immunity to the Government arising out of the failure to prevent the sale of a firearm to an ineligible person through the processing of background checks in the NICS. The statute reads as follows:

(6) Neither a local government nor an employee of the Federal Government or of any State or local government, responsible for providing information to the national instant criminal background check system shall be liable in an action at law for damages-
(A) for failure to prevent the sale or transfer of a firearm to a person whose receipt or possession of the firearm is unlawful under this section; or
(B) for preventing such a sale or transfer to a person who may lawfully receive or possess a firearm.

18 U.S.C. §922(t)(6).

         When Congress debated creation of the NICS as part of the Brady Act, there was significant concern that making government actors responsible for vetting gun purchasers would result in voluminous lawsuits when that vetting failed. See generally Brady Handgun Violence Prevention Act: Hearing Before the Subcomm. on Crime and Criminal Justice of the H. Comm. on the Judiciary, 103d Cong. (1993). Congress's clear intent in enacting § 922(t)(6) was to prevent any assumption of monetary liability for the operation of the background check system. E.g., 139 Cong. Rec. 28, 529-30 (Nov. 10, 1993) (rejection of amendment offered to deny immunity where the NICS search was not diligent). It is well settled that the United States may assert any defense of immunity "which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled." 28 U.S.C. § 2674; Lomando v. United States, 667 F.3d 363, 375-76 (3d Cir. 2011); Medina v. United States, 259 F.3d 220, 226 n.2 (4th Cir. 2001). These immunity provisions appear to have had the effect Congress intended because this Court can find no other case where a party has attempted to sue the United States for the alleged failure to prevent the sale of a firearm under the NICS system to an ineligible person.

         B. Motion to Dismiss under Rule 12(b)(1) and 12(b)(6)

         The Government has moved to dismiss these actions pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss under Rule 12(b)(1) represents a challenge to the Court's subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). A challenge to subject-matter jurisdiction may contend either 1) that the complaint fails to allege facts sufficient to establish subject matter jurisdiction or 2) "that the jurisdictional allegations of the complaint [are] not true." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where the sufficiency of the jurisdictional allegations in the complaint is challenged facially, "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns v. United States, 585 F.3d 187, 192 (2009). If, however the defendant contends "that the jurisdictional allegations of the complaint [are] not true, " the plaintiff bears the burden to prove facts establishing jurisdiction and the district court may "decide disputed issues of fact." Id. In that case, because the plaintiffs allegations are not presumed true, "the court should resolve the relevant factual disputes only after appropriate discovery." 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 629 (4th Cir. 2016). And where "the jurisdictional facts and the facts central to a tort claim are inextricably intertwined, " so that a challenge to the truth of the jurisdictional facts indirectly challenges the plaintiffs claims on the merits, "the trial court should ordinarily assume jurisdiction and proceed to the intertwined merits issues." Kerns, 585 F.3 at 193.

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses. . . . Our inquiry then is limited to whether the allegations constitute 'a short and plain statement of the claim showing that the pleader is entitled to relief" Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation marks and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a light most favorable to the non-moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id. To survive a motion to dismiss, the complaint must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         II. Factual Background

         A. Roofs February 28, 2015 arrest for unlawful possession of a controlled substance

         On Sunday, February 28, 2015, at 8:45 p.m., Officer Brandon M. Fitzgerald of the City of Columbia, South Carolina, Police Department received a complaint from the security department at the Columbiana Centre Shopping Mall that a white male wearing all black clothing was entering stores and asking suspicious questions, such as how many associates were then ...


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