United States District Court, D. South Carolina, Charleston Division
Felicia Sanders, individually and as legal custodian for K.M., a minor, Plaintiff,
United States of America, Defendant.
ORDER AND OPINION
Richard Mark Gergel United States District Judge
action and fifteen other related actions 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.
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.
The Federal Tort Claims Act
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).
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.
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.
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).
Immunity for claims arising under the NICS
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
(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).
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.
Motion to Dismiss under Rule 12(b)(1) and 12(b)(6)
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
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).
Roofs February 28, 2015 arrest for unlawful possession of a
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