Felicia Sanders v. United States ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18–1931
FELICIA SANDERS, individually and as Legal Custodian for K.M., a minor,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1932
JENNIFER PINCKNEY, Personal Representative of the Estate of Clementa Pinckney,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1933
JENNIFER PINCKNEY,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1935
JENNIFER PINCKNEY, individually and as Parent, Natural Guardian and Next
Friend of M.P., a minor,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
2
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1936
TYRONE SANDERS, Personal Representative of the Estate of Tywanza Sanders,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1937
FELICIA SANDERS,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
3
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1938
ANTHONY THOMPSON, as Co-Personal Representative of the Estate of
Myra Singleton Quarles Thompson; KEVIN SINGLETON, as Co-Personal
Representative of the Estate of Myra Singleton Quarles Thompson,
Plaintiffs – Appellants,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1939
POLLY SHEPPARD,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
4
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1940
WALTER B. JACKSON, Personal Representative of the Estate of Susie Jackson,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1941
LAURA MOORE, Personal Representative of the Estate of Ethel Lance,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
5
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1942
DANIEL L. SIMMONS, JR., as Personal Representative of the Estate of
Daniel L. Simmons Sr.,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1943
SHALISA COLEMAN, as Personal Representative of the Estate of
Sharonda Coleman-Singleton,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
6
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1944
ANTHONY THOMPSON,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1945
ARTHUR STEPHEN HURD, as Personal Representative of the Estate of
Cynthia Graham Hurd,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
7
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1946
ARTHUR STEPHEN HURD,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
No. 18–1948
BETHANE MIDDLETON-BROWN, Personal Representative of the Estate of
DePayne Middleton-Doctor,
Plaintiff – Appellant,
v.
UNITED STATES OF AMERICA,
Defendant – Appellee,
–––––––––––––––––
8
BRADY CENTER TO PREVENT GUN VIOLENCE,
Amicus Supporting Appellant.
Appeals from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:16–cv–02356–RMG; 2:16–cv–
02350–RMG; 2:16–cv–02351–RMG; 2:16–cv–02352–RMG; 2:16–cv–02354–RMG;
2:16–cv–02355–RMG; 2:16–cv–02357–RMG; 2:16–cv–02358–RMG; 2:16–cv–02359–
RMG; 2:16–cv–02360–RMG; 2:16–cv–02378–RMG; 2:16–cv–02405–RMG; 2:16–cv–
02406–RMG; 2:16–cv–02407–RMG; 2:16–cv–02409–RMG; 2:16–cv–02746–RMG)
Argued: May 7, 2019 Decided: August 30, 2019
Before GREGORY, Chief Judge, AGEE, and DIAZ, Circuit Judges.
Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Diaz joined. Judge Agee wrote a separate opinion concurring in part and
dissenting in part.
ARGUED: William Walter Wilkins, NEXSEN PRUET, Greenville, South Carolina, for
Appellants. Thomas George Ward, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. Benjamin Softness, KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C., Washington, D.C. for Amicus Curiae. ON BRIEF:
Kirsten E. Small, NEXSEN PRUET, Greenville, South Carolina, for Appellants Felicia
Sanders, Jennifer Pinckney, Tyrone Sanders, Anthony Thompson, Arthur Stephen Hurd,
Polly Sheppard, Walter B. Jackson, Laura Moore, Daniel L. Simmons, Jr.,
Shalisa Coleman, Kevin Singleton, and Bethane Middleton-Brown. Gedney M. Howe, III,
Alvin J. Hammer, GEDNEY M. HOWE, III, PA, Charleston, South Carolina, for
Appellants Felicia Sanders, Jennifer Pinckney, Anthony Thompson, Tyrone Sanders, Polly
Sheppard, Walter B. Jackson, Laura Moore, Bethane Middleton-Brown, and Kevin
Singleton. Andrew J. Savage, III, SAVAGE LAW FIRM, Charleston, South Carolina, for
Appellants Felicia Sanders, Shalisa Coleman, Anthony Thompson, Tyrone Sanders, Polly
Sheppard, Walter B. Jackson, Laura Moore, Kevin Singleton, and Bethane Middleton-
Brown. W. Mullins McLeod, Jr., Jacqueline LaPan Edgerton, MCLEOD LAW GROUP
LLC, Charleston, South Carolina, for Appellants Arthur Stephen Hurd, Anthony
Thompson, and Shalisa Coleman. Carl E. Pierce, II, Joseph C. Wilson, IV, PIERCE,
SLOAN, WILSON, KENNEDY & EARLY LLC, Charleston, South Carolina, for Appellant
9
Daniel L. Simmons, Jr. S. Randall Hood, MCGOWAN, HOOD & FELDER, LLC, Rock Hill,
South Carolina; Sen. Gerald Malloy, MALLOY LAW FIRM, Hartsville, South
Carolina, for Appellants Jennifer Pinckney and Anthony Thompson. J. Stephen Schmutz,
Charleston, South Carolina; David F. Aylor, LAW OFFICES OF DAVID AYLOR,
Charleston, South Carolina, for Appellants Anthony Thompson, Arthur Stephen Hurd and
Shalisa Coleman. Joseph H. Hunt, Assistant Attorney General, Mark B. Stern, Joshua M.
Salzman, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. Jonathan E. Lowy, Mariel Goetz, Joshua Scharff, BRADY CENTER
TO PREVENT GUN VIOLENCE, Washington, D.C.; Scott H. Angstreich, KELLOGG,
HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Amicus
Curiae.
10
GREGORY, Chief Judge:
On June 17, 2015, Dylann Roof entered Mother Emanuel A.M.E. Church in
Charleston, South Carolina, and opened fire, murdering nine worshipers who had gathered
for Bible study: Reverend Clementa Pinckney, Reverend Sharonda Coleman-Singleton,
Reverend Daniel Simmons, Reverend DePayne Middleton-Doctor, Myra Thompson,
Tywanza Sanders, Ethel Lance, Cynthia Hurd, and Susie Jackson. In the weeks following
this tragedy, James Comey, then the Director of the Federal Bureau of Investigation
(“FBI”), issued a public statement explaining that Roof was prohibited under federal law
from possessing a firearm and that he was able to purchase the Glock 41 semiautomatic
pistol he used in the attacks only because of lapses in the FBI’s National Instant Criminal
Background Check System (“NICS”). As Director Comey stated, “Dylann Roof, the
alleged killer of so many innocent people at the Emanuel AME church, should not have
been allowed to purchase the gun he allegedly used that evening.” 1
These consolidated cases concern the lawsuits brought by survivors and the estates
of the deceased victims (“Plaintiffs”) seeking to hold the United States liable for
negligently performing the Roof background check—a background check that, if
performed properly, no one disputes would have prevented Roof from purchasing the
firearm he used to commit this atrocity. Following jurisdictional discovery, the district
court dismissed the Plaintiffs’ claims for lack of subject-matter jurisdiction on two
1
Press Release, FBI, Statement by FBI Director James Comey Regarding Dylann
Roof Gun Purchase (July 10, 2015), https://www.fbi.gov/news/pressrel/press-
releases/statement-by-fbi-director-james-comey-regarding-dylann-roof-gun-purchase
(“FBI Press Release”).
11
independent grounds. First, the district court held that the Government was immune from
liability under the discretionary function exception of the Federal Tort Claims Act, 28
U.S.C. § 2680(a). Second, the court concluded that the Government enjoyed immunity
under the Brady Act’s immunity provision, 18 U.S.C. § 922(t)(6). The Plaintiffs now
appeal, contending that the district court erred on both grounds.
We agree. Because neither provision affords the Government immunity in this case,
we reverse the district court’s order granting the Government’s motion to dismiss for lack
of subject-matter jurisdiction and remand for further proceedings consistent with this
opinion.
I.
A. Statutory and Regulatory Background
1. The Brady Act and the National Instant Criminal Background Check System
Federal law prohibits certain individuals from buying, owning, or possessing a
firearm, including anyone who has been convicted of a felony or “is an unlawful user of or
addicted to any controlled substance.” 18 U.S.C. § 922(g)(1), (3). In 1993, Congress
enacted the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536,
to “prevent convicted felons and other persons who are barred by law from purchasing
guns.” 2 To achieve this objective, the Act required the Attorney General to establish a
National Instant Criminal Background Check System (“NICS”) that federally licensed
2
H.R. Rep. No. 103-344, at 7 (1993), reprinted in 1993 U.S.C.C.A.N. 1984, 1984.
12
firearms dealers and others must use to determine “whether receipt of a firearm by a
prospective transferee would violate section 922 . . . or State law.” 34 U.S.C. § 40901(b).
If the background check reveals that a transfer would be illegal, the dealer cannot proceed
with the transfer. See 18 U.S.C. § 922(t)(1).
The FBI was charged with implementing and administering the NICS, which began
operating in 1998. See generally National Instant Criminal Background Check System
Regulation, 63 Fed. Reg. 58,303 (Oct. 30, 1998). The Brady Act implementing regulations
and certain Standard Operating Procedures (“SOPs”) spell out the procedures the FBI
follows in performing background checks. See 28 C.F.R. §§ 25.1–25.11. These
regulations and SOPs form the heart of this appeal.
The process begins when a federally licensed firearms dealer initiates the required
background check by contacting the FBI’s NICS Operations Center. Id. § 25.6(b). On
receiving this inquiry, a representative from the Operations Center must confirm the
dealer’s identity and assign an NICS Transaction Number (“NTN”) to the inquiry. Id.
§ 25.6(c)(1)(i)–(ii). The representative then must “[s]earch the relevant databases (i.e.,
NICS Index, NCIC, III) for any matching records” that would prohibit the transfer of the
firearm to the prospective purchaser. Id. § 25.6(c)(1)(iii). Each of the three databases is
slightly different. The NICS Index is a database managed by the FBI “containing
information provided by Federal and state agencies about persons prohibited under Federal
law from receiving or possessing a firearm.” Id. § 25.2. The National Crime Information
Center (“NCIC”) database is a “nationwide computerized information system of criminal
justice data established by the FBI” for use by local, state, and federal agencies. Id. And
13
the Interstate Identification Index (“III”) is “the cooperative federal-state system for the
exchange of criminal history records.” Id. § 20.3(m).
Based on the search of these databases, the NICS representative will provide one of
three responses to the dealer. The representative will provide a “Proceed” response if no
disqualifying information is found in any of the databases. Id. § 25.6(c)(1)(iv)(A). She
will provide a “Denied” response if a matching record is found in one of the databases
“demonstrating that receipt of a firearm by the prospective transferee would violate 18
U.S.C. 922 or state law.” Id. § 25.6(c)(1)(iv)(C). And she will provide a “Delayed”
response if the search uncovers a record that “requires more research to determine whether
the prospective transferee is disqualified from possessing a firearm by Federal or state
law.” Id. § 25.6(c)(1)(iv)(B). Such a response means that the dealer may not proceed with
a firearm transfer “pending receipt of a follow-up ‘Proceed’ response from the NICS or the
expiration of three business days . . . whichever occurs first.” Id. If the NICS fails to make
a determination within three business days, the dealer may complete the sale and transfer
the firearm. Id.
If a transaction receives a Delayed response, it is automatically placed in a Delayed
queue and assigned to an NICS Legal Instrument Examiner. This Examiner conducts
additional research in an effort to obtain complete information enabling the FBI to
determine whether a prospective purchaser may lawfully purchase or possess a firearm.
J.A. 409.
NICS has developed a set of SOPs that govern the research process for Delayed
transactions and provide an order of operations for conducting this research. In accordance
14
with SOP 5.5.4, Examiners must first conduct internal research, consulting all internal
automated systems as well as the NICS Library and a legal database (if applicable). J.A.
478. If this internal research fails to indicate whether the transaction may proceed or should
be denied, the Examiner must conduct external research under SOP 5.5.5. J.A. 549. This
SOP provides that the Examiner “will contact the state POC [point of contact], the courts,
district attorneys, probation offices, arresting agencies, etc.” for incident reports “in
accordance with the preference indicated on the State Processing Page and Contact List.”
J.A. 549. The South Carolina Processing Page in turn indicates that “[c]ourts and arresting
agencies are the primary contact (follow Contact List),” and that arresting agencies in
particular are the contact for “police/incident report[s].” J.A. 491–92.
A separate component of the Brady Act regulatory scheme relevant to this case
addresses data integrity. Entitled “Validation and data integrity of records in the system,”
this regulation provides that the FBI “will be responsible for maintaining data integrity
during all NICS operations that are managed and carried out by the FBI.” 28 C.F.R.
§ 25.5(a). This responsibility generally entails maintaining the accuracy, quality, and
validity of records in the NICS Index. See id. § 25.5(a)(1)–(4).
2. The National Data Exchange (N-DEx)
A fourth database, which the NICS Examiner did not review, is also relevant to this
case. After the September 11, 2001, terrorist attacks, the FBI created the National Data
Exchange (“N-DEx”) to provide criminal justice agencies at the federal, state, local, and
tribal levels with access to a vast array of criminal justice information like incident and
arrest reports, booking reports, and pretrial investigations. See Sanders v. United States,
15
324 F. Supp. 3d 636, 643 (D.S.C. 2018). It is undisputed that the Government decided
against giving NICS Examiners access to N-DEx. See J.A. 1436 (“N-DEx was reviewed
by the NICS Section in 2013 and was not included as a dataset . . . because the review
determined a low information return rate at the time and a conflict with purging
requirements.”).
B. Factual Background
On Saturday, April 11, 2015, Roof sought to purchase a semiautomatic pistol from
a federally licensed firearms dealer in West Columbia, South Carolina. Sanders, 324 F.
Supp. 3d at 644. The dealer in turn contacted NICS by telephone to determine whether the
sale could proceed. Id. The NICS representative who fielded the inquiry searched the
three databases for any information on Roof. While the NICS Index and NCIC database
yielded no relevant information, the III database returned a record indicating that Roof had
been arrested just six weeks earlier on a felony cocaine charge and that the arresting agency
was the Lexington County Sheriff’s Office. Id. An arrest for a drug offense may indicate
that a person is an “unlawful user of or addicted to any controlled substance” and thus
cannot legally possess a firearm, 18 U.S.C. § 922(g)(3), but such an arrest is not by itself
disqualifying. The SOPs require proof that the substance possessed has been confirmed
through testing to be a controlled substance, or that the arrestee admitted that it was a
controlled substance. Sanders, 324 F. Supp. 3d at 645. For this reason, the transaction was
placed into the Delayed queue for further research. Id. at 644–45. NICS informed the
dealer that the sale could proceed on Thursday, April 16, 2015, unless instructed otherwise.
16
It later became clear that the III database entry provided by the Lexington County
Sheriff’s Office was inaccurate in certain crucial respects. Id. First, Roof had been arrested
not on a felony cocaine charge but on a misdemeanor charge for simple possession of a
Schedule III controlled substance (Suboxone) without a prescription. Id. at 644. Second,
and more importantly, the record misidentified the arresting agency as the Lexington
County Sheriff’s Office when it was the Columbia Police Department (“Columbia PD”)
that had arrested Roof. Id. This misidentification was a product of the fact that Roof was
arrested in a part of Columbia, South Carolina, that falls in Lexington County. Most of
Columbia is in Richland County. The Columbia PD thus has jurisdiction over the area
where Roof was arrested and indeed made the arrest, but Roof was booked at the Lexington
County Sheriff’s Office, which initially processes arrests occurring in that county. Id. at
642. This error was especially consequential because it caused NICS to believe mistakenly
that the documents associated with Roof’s arrest would be found with the Lexington
County Sheriff’s Office rather than the Columbia PD.
On Monday, April 13, the first business day following the initial NICS inquiry, an
NICS Examiner pulled the transaction from the Delayed queue to conduct additional
research. This NICS Examiner’s “primary responsibility [was] to research transactions for
Region II, which includes South Carolina.” J.A. 643–44. In accordance with the SOPs,
the Examiner first reviewed internal NICS databases, but she came across nothing aside
from what had already been identified in the III database. Sanders, 324 F. Supp. 3d at 645.
The Examiner then began external research. Following the directive in SOP 5.5.5 to
contact the state points of contact, the courts, and arresting agencies, the Examiner,
17
believing that the Lexington County Sheriff’s Office made the arrest, checked the online
case index for the Lexington County Court. Id. She discovered a pending case against
Roof for “Drugs / Poss. of other controlled sub. in Sched. I to V – 1st offense,” a
misdemeanor. Id. This case report did not list the Columbia PD as the arresting agency or
give any more relevant details about the arrest, but it did name Officer Fitzgerald as the
arresting officer and provide an address. Id. Officer Fitzgerald worked at Columbia PD
and the address provided was that of the Columbia PD headquarters. Id.
Because the record of Roof’s arrest alone was insufficient under NICS procedures
to establish that he was disqualified from possessing a firearm, the Examiner tried on
Monday afternoon to obtain a copy of the incident report underlying the arrest.
Specifically, she sent faxes requesting a copy of the report to the Lexington County
Sheriff’s Office and the 11th Circuit Solicitor’s Office, which prosecutes cases in
Lexington County. Id. at 645–46. The Solicitor’s Office never responded to this request.
Id. at 646. The Sheriff’s Office responded later in the afternoon by returning the fax with
a handwritten note stating, “No arrest or report for this date. The last arrest was on 2-28-
15. Columbia PD will have the Report.” Id.
The Examiner did not follow these instructions and contact the Columbia PD,
however. Instead, she reviewed the list of law enforcement agencies in the Lexington
County section of the State Contact List and found the West Columbia PD. Id. Columbia
PD appears only in the Richland County section of the list because that is where its
headquarters is located. The Examiner then faxed an information request to the West
Columbia PD, which returned the fax the next morning with the following handwritten
18
response: “Not WCPD Warrant[.] This is not a WCPD Arrest.” Id. Rather than attempt
to contact the Columbia PD at this time, the Examiner “did nothing more,” leaving the
Roof inquiry in the Delayed queue and processing other inquiries while awaiting a response
from the Lexington County Solicitor’s Office. Id. This response never came.
On Thursday, April 16, after the three business days had elapsed, the firearms dealer
went forward with the sale of the semiautomatic pistol to Roof. Id. Roof would use this
weapon two months later to murder nine people at Mother Emanuel A.M.E. Church in
Charleston, South Carolina.
The NICS Section eventually obtained a copy of the incident report underlying
Roof’s arrest. Prepared by the Columbia PD, the report indicated that Roof admitted he
was in possession of Suboxone, a Schedule III controlled substance for which he had no
prescription. Id. at 642. There is no dispute that the information in this report would have
been sufficient to establish that Roof was an unlawful user of a controlled substance who
could not lawfully possess a firearm. Id. If the Examiner had obtained this report, then,
the dealer’s inquiry would have been denied, and Roof would not have been allowed legally
to acquire the gun he used in his attacks. See FBI Press Release (“If a[n] NICS examiner
saw [the report], Roof would be denied permission to buy a gun.”).
It also later became clear that both the Columbia PD and the Lexington County
Sheriff’s Office had submitted the Roof incident report to N-DEx before the NICS
Examiner conducted research on the Roof transaction. Sanders, 324 F. Supp. 3d at 642.
As we have explained, however, the NICS Examiner did not have access to the N-DEx
database.
19
C. Procedural History
In 2016, the survivors of Roof’s attack and the estates of the deceased victims filed
a series of lawsuits against the United States, alleging that the Government was liable under
the Federal Tort Claims Act (“FTCA”) for failing to prevent Roof from purchasing the
firearm he used in the shooting. See 28 U.S.C. § 2674 (providing that “[t]he United States
shall be liable . . . in the same manner and to the same extent as a private individual under
like circumstances”). The Plaintiffs in these cases principally argued that the Government
negligently performed the NICS background check in violation of the Brady Act and 28
C.F.R. Part 25.
The district court consolidated the cases, and the Government moved to dismiss for
lack of subject-matter jurisdiction under the FTCA and for failure to state a claim under
South Carolina tort law. Sanders, 324 F. Supp. 3d at 639. As relevant here, the
Government argued that it was immune from liability under the discretionary function
exception to the FTCA, which grants immunity for claims “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.” 28 U.S.C. § 2680(a).
The district court generally denied the Government’s motion to dismiss without
prejudice and ordered the parties to engage in jurisdictional discovery concerning the
applicability of the discretionary function exception. 3 Sanders, 324 F. Supp. 3d at 639.
3
The district court denied with prejudice the Government’s argument that the
FTCA’s misrepresentation exception shielded it from suit. See 28 U.S.C. § 2680(h). The
Government represents on appeal that it no longer presses this argument. See Resp. Br. 15
n.4.
20
After discovery, the Government renewed its motion to dismiss, arguing again that the
Plaintiffs failed to state a claim and that the discretionary function exception barred the
suit. Id. The Government also argued—in its reply brief, and for the first time—that it
was entitled to immunity under 18 U.S.C. § 922(t)(6), the provision of the Brady Act that
grants immunity for any claim arising out of a failure to prevent the sale of a firearm to an
ineligible person in the course of conducting an NICS background check. Sanders, 324 F.
Supp. 3d at 639, 649.
The district court held an evidentiary hearing and allowed the parties to file
additional materials in the following weeks. On June 18, 2018, the district court granted
the Government’s motion to dismiss on two independent grounds.
First, the court determined that the FTCA’s discretionary function exception barred
the Plaintiffs’ claims. The court explained that the NICS SOPs “require the examiners only
to send a single automated fax to a law enforcement agency with no expectation or
requirement that follow up work be done if the necessary records are not obtained.” Id. at
647. According to the court, the Examiner here complied with the SOPs when she sent the
two faxes and, after learning that “Columbia PD w[ould] have the Report,” contacted the
West Columbia PD because “Columbia PD” appeared nowhere on the Lexington County
Contact List. Id. The court recognized that, “[w]hen West Columbia promptly responded
it was not the arresting agency, a reasonable and logical procedure would have been to
follow the lead already given that the City of Columbia had the arrest record.” Id.
Nevertheless, the court concluded that the SOPs did not provide for this situation and
emphasized that the Examiner was prohibited from using the internet to retrieve the
21
Columbia PD’s contact information. The Examiner’s decision “to do nothing” “may not
have met the most minimal standards of common sense or due care, but the [E]xaminer did
not violate her agency’s policy.” Id.
At bottom, the court continued, “[t]he fault here lies in some abysmally poor policy
choices made regarding the operation of the NICS,” most notably the decision to deny
NICS Examiners access to N-DEx, which contained the Roof incident report. Id. And yet
“the FTCA provides the Government immunity for policy choices (even really bad policy
choices) under the discretionary function exception.” Id.; see also id. at 649 (stating that
“[t]he glaring weaknesses revealed in the background check system . . . are the function of
distinct policy choices made by the FBI, not violations of specific legal standards,” and
“such policy choices fall squarely within” the exception). The district court thus concluded
that the Government was immune from suit under the FTCA.
Second, the district court separately held that the Plaintiffs’ claims are barred by the
immunity provision in the Brady Act, 18 U.S.C. § 922(t)(6). As the court recognized, this
“issue was first raised by the Government in its reply brief, then abandoned at oral
argument, and asserted again in post-trial briefs.” Sanders, 324 F. Supp. 3d at 649. The
court deemed this change of positions “distasteful” and “not to be encouraged,” id. (quoting
United States v. Wheeler, 886 F.3d 415, 423 (4th Cir. 2018)), but explained that it was
“disinclined to find a waiver of congressionally mandated immunity,” especially where the
Plaintiffs fully briefed the issue and addressed it during the evidentiary hearing, id. The
court then stated that it was “obvious” that “a claim of negligence in the operation of the
22
NICS system resulting in a prohibited person obtaining a firearm falls plainly within the
scope of the Government’s immunity.” Id.
Having dismissed the case for lack of subject-matter jurisdiction, the district court
declined to reach the Government’s arguments that the Plaintiffs failed to state a claim
under South Carolina law. Id. at 650.
II. Standard of Review
The district court dismissed the Plaintiffs’ claims for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) after considering evidence
outside the pleadings. In these circumstances, we review the district court’s “factual
findings with respect to jurisdiction for clear error and the legal conclusion that flows
therefrom de novo.” In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014)
(quoting Velasco v. Gov’t of Indon., 370 F.3d 392, 398 (4th Cir. 2004)).
III. Analysis
Before this Court, the Plaintiffs argue that the district court committed reversible
error in two respects. First, they contend that the district court erred in concluding that the
FTCA’s discretionary function exception immunizes the Government from this lawsuit.
Second, they argue that the court wrongly held that the Brady Act’s statutory immunity
provision independently bars their claims. We address each contention in turn.
23
A. FTCA Immunity
“As a general matter, the United States is immune from suit unless it waives that
immunity.” In re KBR, Inc., Burn Pit Litig., 744 F.3d at 341. The FTCA effects such a
waiver of immunity and authorizes certain tort claims against the United States “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)(1); id. § 2674.
That waiver is subject to exceptions, however, and one exception exists for the performance
of discretionary functions. This exception immunizes the Government from “[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.” Id. § 2680(a). “FTCA
plaintiffs have the burden of showing that the discretionary function exception does not
foreclose their claim.” Seaside Farm, Inc. v. United States, 842 F.3d 853, 857 (4th Cir.
2016). Indeed, the general rule that waivers of sovereign immunity should be strictly
construed “is unhelpful in the FTCA context, where unduly generous interpretations of the
exceptions run the risk of defeating the central purpose of the statute, which waives the
Government’s immunity from suit in sweeping language. Dolan v. U.S. Postal Serv., 546
U.S. 481, 491–92 (2006) (citations and internal quotation marks omitted).
The Plaintiffs argue that the district court erred in concluding that the Government
enjoys immunity from suit under the FTCA’s discretionary function exception. This
inquiry “requires application of a two-step analysis.” Wood v. United States, 845 F.3d 123,
128 (4th Cir. 2017). First, we must determine whether the conduct at issue “involves an
24
element of judgment or choice.” Id. (quoting Berkovitz by Berkovitz v. United States, 486
U.S. 531, 536 (1988)). “When a statute, regulation, or policy prescribes the employee’s
conduct, the conduct cannot be discretionary and thus is unprotected by the discretionary
function exception.” Id.
If the challenged conduct “is the product of judgment or choice,” this Court must
then “determine whether the decision made was ‘based on considerations of public
policy.’” Id. (quoting Berkovitz, 486 U.S. at 537). “The focus of the inquiry is not on the
agent’s subjective intent in exercising the discretion conferred by statute or regulation, but
on the nature of the actions taken and on whether they are susceptible to policy analysis.”
United States v. Gaubert, 499 U.S. 315, 325 (1991). This second step is intended to
“prevent judicial second-guessing of legislative and administrative decisions grounded in
social, economic, and political policy through the medium of an action in tort.” Seaside
Farm, 842 F.3d at 858 (citations and internal quotation marks omitted). “In short, the
discretionary function exception . . . shield[s] decisions of a government entity made within
the scope of any regulatory policy expressed in statute, regulation, or policy guidance, even
when made negligently.” Wood, 845 F.3d at 128.
Applying this framework, we must analyze the three bases for liability the Plaintiffs
assert here: (1) the NICS Examiner’s performance of the background check, (2) the FBI’s
decision to deny Examiners access to N-DEx, and (3) the FBI’s failure to maintain data
integrity in the NICS Index.
25
1. The NICS Background Check
The Plaintiffs contend that the Government cannot pass the first step of the
discretionary function test because the NICS Examiner’s allegedly negligent performance
of the background check did not involve the permissible exercise of policy judgment but
rather a prescribed course of action that the Examiner failed to follow. See Berkovitz, 486
U.S. at 536–37. The Plaintiffs do not suggest that the Brady Act itself prescribes a
mandatory course of action that the Examiner disregarded. Instead, the Plaintiffs contend
that the Examiner violated several federal regulations and SOPs that prescribed mandatory
research processes that—if followed—would have led to the discovery of Roof’s incident
report and the subsequent denial of his firearm purchase.
As an initial matter, we agree with the Government that none of the federal
regulations at issue prescribes a mandatory directive that was violated such that liability
would arise here. The Plaintiffs assert that the NICS Examiner violated a directive in 28
C.F.R. § 25.6(c)(1)(iv)(B), which provides that NICS should issue a Delayed response
where “the NICS search finds a record that requires more research to determine whether
the prospective transferee is disqualified from possessing a firearm by Federal or state
law.” But the Examiner complied with this regulation and issued a Delayed response upon
discovering Roof’s arrest record. See Gaubert, 499 U.S. at 324 (explaining that the
Government will be protected “if a regulation mandates particular conduct[] and the
employee obeys the direction”). Nor did the NICS Examiner violate any directive in 28
C.F.R. § 25.6(c)(1)(iv)(C), which provides that NICS will deny a transaction when a search
of the NICS Index, NCIC, or III identifies a record containing “information demonstrating
26
that receipt of a firearm by the prospective transferee would violate 18 U.S.C. 922 or state
law.” The search of the III database returned a record indicating that Roof had been
arrested—not convicted—on a drug charge, but such an arrest record alone does not justify
denying a transaction. See Sanders, 324 F. Supp. 3d at 645. The Brady Act’s implementing
regulations thus provide no basis for liability.
The Plaintiffs also argue that the NICS Examiner violated certain mandatory SOPs
in conducting Roof’s background check. It is true—as the Government emphasizes—that
internal operating procedures, guidance manuals, and the like do not automatically give
rise to tort liability. See Holbrook v. United States, 673 F.3d 341, 347 (4th Cir. 2012)
(stating that “[t]he price of circulating internal guidance should not be an exponential
increase in exposure to a tort suit”).
Nonetheless, there may be circumstances in which internal operating procedures go
beyond mere guidance, removing any discretion from the task at hand and articulating a
mandatory directive that must be followed at the risk of incurring liability. That is the case
here. The NICS SOPs prescribed mandatory directives that the NICS Examiner was
required to follow in performing the background check. Because she failed to do so, the
discretionary function exception does not insulate the Government from liability. See
Wood, 845 F.3d at 128 (explaining that the conduct in these instances “is unprotected by
the discretionary function exception”); see also Smith v. Wash. Metro. Area Transit Auth.,
184 F. App’x 311, 315 (4th Cir. 2006) (unpublished) (finding the discretionary function
exception does not apply “where an agency official contravenes internal agency guidelines
that impose mandatory duties”); Ignatiev v. United States, 238 F.3d 464, 467 (D.C. Cir.
27
2001) (“[I]nternal guidelines can be an actionable source of a mandatory obligation under
the FTCA.”).
As the district court stated in its factual findings, which we review only for clear
error, the NICS SOPs contain a set of requirements specifying the course of action an
Examiner must take in conducting a background check. 4 See Sanders, 324 F. Supp. 3d at
643, 647 (describing the SOPs as “rigid” and “highly structured” and explaining that
Examiners are “governed by” the SOPs, which “mandate the standards for approval or
denial of the firearm sale” and impose “modest requirements”); see also J.A. 649 (NICS
Examiner responding “yes” when asked whether the SOPs are “mandatory” and “things
that you have to follow”); J.A. 932 (Assistant Director of FBI’s Criminal Justice
Information Services Division in 2015 responding “Yes. We put them in place for that
reason” when asked whether SOPs are mandatory); J.A. 1062 (NICS Region Coordinator
answering “yes” when asked whether “[y]ou’re required to follow” the SOPs). Central to
our analysis is SOP 5.5.5, which uses unambiguously mandatory and nondiscretionary
language in providing that the Examiner “will contact” the state point of contact (“POC”),
the courts, and arresting agencies for incident reports in accordance with the preference on
the State Processing Page and Contact List. J.A. 549. The Processing Page further instructs
that arresting agencies are the primary contact, in particular for obtaining “police/incident
report[s]” like the Roof report. J.A. 491–92. Far from providing mere guidance or
4
At oral argument, counsel for the Government took the position that SOPs can
never provide a basis for liability under our decisions in Seaside Farm, Holbrook, and
Tiffany. Those cases plainly do not endorse such a remarkable proposition, and we decline
to do so today.
28
information to consider, then, SOP 5.5.5 issues clear directives while removing any
discretion from the Examiner.
The NICS Examiner here ultimately failed to comply with the mandatory directives
in SOP 5.5.5. After the Lexington County Sheriff’s Office informed her in writing—on
the first day of the three-day research period—that it had “[n]o arrest or report for this date”
and that “Columbia PD will have the Report,” the Examiner was required under SOP 5.5.5,
and in accordance with the State Processing Page, to contact the Columbia PD as the
arresting agency to obtain the report. She did not do so. Instead, the Examiner reviewed
the law enforcement agencies in the Lexington County section of the State Contact List
and contacted the West Columbia PD. When she learned from the West Columbia PD that
“[t]his [was] not a WCPD Arrest” at 8:46 a.m. on the second day of the waiting period, she
was then—still—required to contact the Columbia PD to obtain the incident report. 5 At
this time, the Examiner knew the West Columbia PD was not the arresting agency, she had
the name of the actual arresting agency—the Columbia PD—in front of her, and she had
almost two full days left to contact the agency to obtain the Roof incident report, a report
that no one disputes would have resulted in a denial of the firearm transaction. The
Examiner instead “did nothing more.” 6 Sanders, 324 F. Supp. 3d at 646.
5
We simply cannot agree with the Government’s assertion that the statement
“Columbia PD will have the Report” was somehow “cryptic.” See Resp. Br. 27–28. And
as the NICS Region Coordinator testified, Columbia PD is “a big PD. We contacted them
all the time.” J.A. 1066.
6
SOP 5.5.5 also instructs NICS Examiners to contact the state POC—here, the
South Carolina Law Enforcement Division (“SLED”)—for any “clarifications on SC
(Continued)
29
The district court acknowledged that “elect[ing] to do nothing” when the Examiner
had before her the name of the arresting agency “may not have met the most minimal
standards of common sense or due care”—and was not the most “reasonable and logical
procedure”—but the court ultimately concluded that the Examiner violated no agency
policy. Id. at 647. It reasoned that “the NICS SOPs did not address this potential situation
and NICS practice prohibited any general internet search” to retrieve the contact
information for the Columbia PD, which appeared only on the Richland (not Lexington)
County section of the Contact List. Id. The court also explained that the Examiner
complied with the SOPs because “the SOPs require the examiners only to send a single
automated fax to a law enforcement agency with no expectation or requirement that follow
up work be done if the necessary records are not obtained.” Id.
This reasoning is flawed. First, contrary to the district court’s conclusion—and as
we have explained—the SOPs require Examiners to contact the arresting agency when
researching Delayed transactions. Once the Examiner’s inquiry revealed that the Columbia
PD was the arresting agency and that it had the report, she was required to contact it. Her
decision not to do so involved no permissible exercise of discretion. To be sure, there are
undoubtedly cases that arise where an Examiner makes inquiries and receives no
response—or receives no response of value—and thus exercises her discretion to set aside
record[s].” J.A. 493 (designating SLED as the POC and providing contact information).
The Examiner did not contact SLED, which had the Roof incident report, as part of the
background check. However, the Examiner did fax the Solicitor’s Office and was awaiting
a response. This does not excuse her failure to follow the directive to contact the arresting
agency.
30
the research and process other transactions. That is not this case, and therefore we do not
suggest today that an Examiner would run afoul of the NICS SOPs and deprive the
Government of its immunity based on such a judgment call. We hold only that where an
Examiner’s mandatory research yields precisely the type of information the SOPs require,
she must act on that information.
Second, the district court appears to suggest that the Examiner had no way to find
the contact information for the Columbia PD because of the NICS research restrictions.
The record indicates otherwise, however, as the following exchange between the Plaintiffs’
attorney and the Examiner illustrates:
Q. All I’m asking you is [whether] the Lexington County Sheriff’s
Office told you Columbia Police Department will have the report.
A. Yes.
Q. And Columbia is listed on your cities in South Carolina that you
had available to you.
A. The city contact list, yeah.
Q. And you didn’t look on that?
A. No.
Q. Okay. And had you looked on it, you would have seen that
Columbia was in Richland County; is that correct?
A. It states that, yes.
Q. Okay. And so you would have been able to contact the arresting
agency had you looked at [the City/County Contact List]; is that
correct?
A. I would – if I would have looked at that page, yes.
31
J.A. 698–99. As this exchange demonstrates, when the Examiner learned that the
Columbia PD was the arresting agency with the incident report, she could and should have
used the resources at her disposal (1) to confirm that Columbia is in Richland County and
(2) to find the Columbia PD’s contact information on the Richland County list. That the
Examiner may have been barred from conducting internet research thus cannot excuse her
failure to comply with the SOPs’ directive to contact the arresting agency.
In sum, this is not a case where the alleged negligence turns on Governmental action
involving the permissible exercise of discretion taken pursuant to a broad delegation of
discretion to effectuate the purpose of a statutory scheme. Cf. Seaside Farm, 842 F.3d at
859–60 (no FTCA liability for FDA’s allegedly negligent decision under the Federal Food,
Drug and Cosmetic Act to issue contamination warning for tomatoes to protect public from
escalating salmonella outbreak); Holbrook, 673 F.3d at 347, 349 (no liability for FAA
safety inspector’s allegedly negligent decision to issue airworthiness certificate for
helicopter where FAA enjoys broad grant of statutory discretion in promoting air safety
and the certification process “reserves discretion for [] inspectors to ensure compliance
with aviation safety requirements”); Tiffany, 931 F.2d at 279 (no liability for Defense
Department’s alleged negligence for decisions related to an intercept of an unknown
aircraft traveling in an air defense zone where “the regulations . . . reserve a great deal of
discretion for the parties who must conduct [such] defensive maneuvers”). This case turns
instead on the NICS Examiner’s alleged negligence in failing to follow a clear directive—
contact the arresting agency—contained within the mandatory SOPs. The Government can
claim no immunity in these circumstances. See Berkovitz, 486 U.S. at 536 (“[I]f the
32
employee’s conduct cannot appropriately be the product of judgment or choice, then there
is no discretion in the conduct for the discretionary function exception to protect.”).
2. Access to N-DEx
The Plaintiffs separately argue that the district court erred in holding that the
discretionary function exception immunized the Government’s decision against providing
NICS Examiners with access to N-DEx, the database created after September 11, 2001, to
facilitate the sharing of criminal justice information among federal, state, local, and tribal
law enforcement agencies. It is undisputed that local law enforcement had submitted
copies of the Roof incident report to N-DEx, but the Government chose not to grant NICS
Examiners access to the database. Sanders, 324 F. Supp. 3d at 647. The district court
determined that the Government’s decision could not serve as a basis for liability because
“the decision to deny the NICS examiners access to the most comprehensive federal
database is a policy choice and the FTCA provides the Government immunity for policy
choices (even really bad policy choices).” Id.
In challenging this conclusion, the Plaintiffs argue that the Government’s decision
constitutes not a discretionary policy choice but a violation of the mandatory directive in
28 C.F.R. § 25.6(c)(1)(iii), which provides that the NICS Operations Center, upon
receiving a request for a background check, will “[s]earch the relevant databases (i.e., NICS
Index, NCIC, III) for any matching records.” Because N-DEx is a “relevant database,” the
Plaintiffs contend, the Examiners were required to check it.
We disagree. As the Government points out, the regulation employs the restrictive
signal “i.e.,” or “that is,” an indication that the three databases listed—NICS Index, NCIC,
33
and III—are the exclusive “relevant databases” to be checked rather than mere examples
of such databases. Compare Black’s Law Dictionary 863 (10th ed. 2014) (defining “i.e.”
as “That is” and contrasting “i.e.” with “e.g.”), with id. at 629 (defining “e.g.” as “For
example”). Other provisions in the regulations, moreover, confirm that the list of databases
is exclusive. See, e.g., 28 C.F.R. § 25.6(c)(1)(iv)(C) (providing that a “Denied” response
will be issued when a matching record “is found in either the NICS Index, NCIC, or III”).
The Plaintiffs suggest that the omission of the N-DEx from this list makes sense because
the database was created after the regulation was promulgated. But as the Government
properly notes, 28 C.F.R. Part 25 was amended in 2014, see National Instant Criminal
Background Check System Regulation, 79 Fed. Reg. 69,047 (Nov. 20, 2014), and the list
of relevant databases went unchanged—an indication that the list does not include N-DEx.
The Plaintiffs alternatively contend that the regulation’s reference to “NICS Index”
actually encompasses N-DEx, but this argument fares no better. The term “NICS Index”
is defined as “the database, to be managed by the FBI, containing information provided by
Federal and state agencies about persons prohibited under Federal law from receiving or
possessing a firearm.” 28 C.F.R. § 25.2. Contrary to Plaintiffs’ suggestion, this definition
makes plain that the NICS Index is “the database” created under the Brady Act that was
designed specifically as a repository for information about individuals ineligible to possess
a firearm. N-DEx, by contrast, is a different database with a different array of information.
The Plaintiffs thus cannot successfully argue that N-DEx forms a part of the NICS Index
such that the Examiner violated a mandatory directive in failing to check it.
34
The district court committed no error in concluding that the Government cannot be
held liable under the FTCA for declining to give Examiners access to the N-DEx. This
decision—declining to provide access to an investigative database “because [a] review
determined a low information return rate at the time and a conflict with purging
requirements,” J.A. 1436—involved “an element of judgment,” and “that judgment is of
the kind that the discretionary function exception was designed to shield,” Berkovitz, 486
U.S. at 536.
3. Failure to Maintain Data Integrity
The Plaintiffs finally contend that the Government contravened a mandatory
directive by failing to maintain “data integrity” during the NICS background check. See
28 C.F.R. § 25.5(a) (“The FBI will be responsible for maintaining data integrity during all
NICS operations that are managed and carried out by the FBI.”). Specifically, the Plaintiffs
argue that the Government violated this directive when it managed and maintained a South
Carolina Contact List that included the city of Columbia in Richland County—where most
of the city falls—but not in Lexington County as well.
As the Government points out, however, this regulation—entitled “Validation and
data integrity of records in the system”—relates specifically to records maintained by the
FBI in the NICS system. The regulation enumerates four types of responsibilities, and they
all deal with ensuring the accuracy, validity, and quality of records in the NICS Index. See
28 C.F.R. § 25.5(a). The Plaintiffs offer no support for the proposition that an omission on
a state’s Contact List—a list that is not part of the NICS Index—would amount to a
35
violation of 28 C.F.R. § 25.5(a) giving rise to an FTCA claim. For this reason, the
Plaintiffs’ data-integrity claim has no merit.
B. Brady Act Immunity
Aside from challenging the district court’s FTCA ruling, the Plaintiffs also take
issue with the court’s conclusion that the immunity provision of the Brady Act, 18 U.S.C.
§ 922(t)(6), independently bars their claims. See Sanders, 324 F. Supp. 3d at 649. As the
district court explained, this “issue was first raised by the Government in its reply brief,
then abandoned at oral argument, and asserted again in post-trial briefs.” Id. The court
nevertheless addressed the issue because it was “disinclined to find a waiver of
congressionally mandated immunity” and because the “[p]laintiffs fully briefed this issue
and addressed it at the evidentiary hearing.” Id. We likewise address the issue, but
conclude that the district court erred in construing § 922(t)(6) to bar the Plaintiffs’ claims. 7
The Brady Act’s immunity provision reads as follows:
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). By its plain text, this provision grants immunity only to “a local
government” or “an employee of the Federal Government or of any State or local
7
Both parties—in addition to the Brady Center as amicus curiae—briefed the issue
on appeal and addressed it during oral argument.
36
government.” Id. (emphasis added); Ignacio v. United States, 674 F.3d 252, 254 (4th Cir.
2012) (any question of statutory construction must begin with the text itself). And the
immunity provision applies only if an actor is “responsible for providing information to”
the NICS system. 18 U.S.C. § 922(t)(6). Both conditions must be met for immunity to
take effect. Neither condition is satisfied here.
First, the Plaintiffs sued the Federal Government rather than any federal employee.
The statutory text immunizes only “an employee of the Federal Government” from suit,
not the Federal Government itself—and the structure of the provision makes this distinction
clear. The statute immunizes “an employee of the Federal Government or of any State or
local government” in addition to “a local government.” That the statute distinguishes
between immunity for employees at all three levels of government, on the one hand, and
immunity for only local governments, on the other, strongly indicates that Congress
intended to exclude the Federal Government from the grant of immunity. See Setser v.
United States, 566 U.S. 231, 238–39 (2012) (applying the principle of expressio unius to
divine congressional intent). As the Brady Center points out, moreover, when Congress
seeks to immunize the Federal Government from liability, it knows how to do so. See, e.g.,
43 U.S.C. § 1656(b) (“[T]he United States and the several States, and political subdivisions
thereof, shall not be liable under this section.”). No such grant of immunity exists here.
In concluding to the contrary, the district court did not address the statutory text and
reasoned simply that “[t]he Government cannot act other than through its employees.”
Sanders, 324 F. Supp. 3d at 649. As an initial matter, this reasoning renders superfluous
some portion of the statutory text, which clearly distinguishes between immunity for local
37
governments and immunity for federal, state, and local governmental employees. See
Corley v. United States, 556 U.S. 303, 314 (2009) (courts must give effect to every
provision of a statute). If federal and local governments enjoyed immunity through their
employees, Congress would not have needed to single out “local governments” for
immunity in the statute.
The district court’s analysis appears to rest on the faulty reasoning that because the
Government can assert any defenses of individual federal employees, and because
employees like the NICS Examiner can claim immunity under this statute, the Government
likewise enjoys immunity under the statute. In defending this reasoning, the Government
relies principally on two cases that do not implicate the specific statutory immunity
conferred under the Brady Act and deal instead with the defenses the Government may
raise under the FTCA. See Norton v. United States, 581 F.2d 390, 391–93 (4th Cir. 1978)
(holding that the Government, sued under the FTCA for an allegedly unlawful search
conducted by its agents, may assert all defenses available to the agents, including good
faith and reasonable belief); Medina v. United States, 259 F.3d 220, 225 n.2 (4th Cir. 2001)
(recognizing this proposition in dicta). That the Government in FTCA cases may assert
defenses available to individual agents does not mean that the Government can claim the
federal statutory immunity in the Brady Act that Congress specifically granted only to
federal employees. In sum, the statutory text is clear: federal employees, but not the
Federal Government, enjoy immunity from suit under § 922(t)(6).
Even if the Federal Government could invoke the statutory immunity expressly
conferred on federal employees, immunity still would not attach because the second
38
statutory condition is not met: the federal employees whose conduct forms the basis of this
suit were not “responsible for providing information” to the NICS system. 18 U.S.C.
§ 922(t)(6).
The Government argues primarily that the Examiners provide information to the
NICS system because, for example, any time an Examiner issues a denial for a firearm
transaction she must submit that information to the NICS Index. Contrary to the
Government’s assertion, the record makes clear that NICS Examiners are responsible for
operating the NICS Index—through researching information contained in the system—
rather than for “providing information” to the system. 8 Indeed, the statutory scheme itself
distinguishes between providing information like criminal records to the NICS system
(primarily a responsibility of states and localities) and conducting research and performing
background checks (a responsibility of NICS Examiners). Compare 34 U.S.C.
§ 40901(a)(1), (b) (providing that the Attorney General “shall establish a national instant
criminal background check system,” including “determin[ing] . . . the means by which
State criminal records systems . . . will communicate with the national system”), with id.
§ 40901(a)(2) (providing that the Attorney General shall “determine for each State a
timetable by which the State should be able to provide criminal records . . . to the national
system” (emphasis added)). That the Examiners may issue firearm denials in the course of
their work therefore does not mean they are “responsible for providing information” to the
8
Counsel for the Government in fact stated before the district court that the Plaintiffs
“are not making the argument that they’re suing the U.S. for failing to put the data into the
NICS system.” J.A. 1504.
39
NICS system within the meaning of § 922(t)(6). The Government thus cannot claim
immunity for this additional reason.
In conclusion, the immunity provision of the Brady Act does not shield the
Government from this lawsuit.
IV. Conclusion
For the foregoing reasons, we reverse the district court’s order granting the
Government’s motion to dismiss for lack of subject-matter jurisdiction and remand this
case for further proceedings consistent with this opinion.
REVERSED AND REMANDED
40
AGEE, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority’s conclusion that the district court erred in determining the
immunity provision of the Brady Act, 18 U.S.C. § 922(t)(6), bars the Plaintiffs’ claims. In
addition, I concur in the majority’s holdings that the district court did not err in determining the
Plaintiffs cannot present claims based on a failure to maintain data integrity or to grant access
to the N-DEx, or a claim that the implementing regulations under the Brady Act prescribe
a mandatory directive.
I write separately, however, because I respectfully disagree with the majority’s
conclusion that the National Instant Criminal Background Check System (“NICS”)
Examiner’s actions, insofar as they were guided by the Standard Operating Procedures
(“SOPs”), were not shielded by the discretionary function exception to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2680(a). Because the SOPs at issue did not mandate
how the Examiner was to conduct additional research, and because that research involved
“judgment . . . of the kind that the discretionary function exception was designed to shield, i.e.,
[judgment] based on considerations of public policy,” Indem. Ins. Co. of N. Am. v. United
States, 569 F.3d 175, 180 (4th Cir. 2009), 1 the Examiner’s actions fit within the exception.
To find otherwise would effectively render meaningless the protections the exception
affords to policy-driven Government decisions and essentially create per se liability on the
part of the Government.
1
I have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
41
I.
As the majority notes, a reviewing court must ask two questions before applying the
discretionary function exception: First, does the conduct at issue involve an element of
judgment or choice? Second, if the conduct does involve such an element, was the decision
made based on public policy considerations? If the conduct reviewed meets both
requirements, then the discretionary function exception will apply, thereby shielding the
Government from FTCA liability. United States v. Gaubert, 499 U.S. 315, 322–23 (1991);
Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536–37 (1988). 2
The majority concludes that the discretionary function exception does not apply to
the way the Examiner conducted the background check because the Examiner violated the
SOP governing external research, SOP 5.5.5. This SOP required her to “contact the state
[point of contact (‘POC’)].” J.A. 549. According to the majority, when the Examiner
received a response stating that her initial inquiry was to the incorrect state POC, the SOPs
required her to confirm the location of the correct POC, go back to her contact list, locate
the correct POC’s contact information, and contact that POC. See Maj. Op. at 30–32.
I disagree that this elongated chain of assumptions negates the discretionary
function exception. On the contrary, to the extent that the SOPs mandated the Examiner’s
conduct, she complied with them. And insofar as they did not direct how she was to conduct
additional research once she determined that she had contacted the incorrect state POC, the
2
Further, when the Government asserts that a claim is barred by this exception, the
Plaintiffs have the burden of demonstrating that the exception does not apply and that a
federal court has subject matter jurisdiction. Seaside Farm, Inc. v. United States, 842 F.3d
853, 857 (4th Cir. 2016).
42
Examiner was afforded discretion in how to pursue any follow-up research. Furthermore,
such discretion was grounded in public policy considerations—specifically, the Federal
Bureau of Investigation’s (“FBI”) balancing of the need for effective, efficient background
checks against limited agency resources. For these reasons, I conclude that the Examiner’s
actions were shielded by the discretionary function exception.
II.
To offer greater context for my disagreement with the majority, I first highlight the
most salient aspects of the factual background and the SOPs at issue. Cf. Maj. Op. at 16–
19.
In March 2015, Dylann Roof was charged with an offense sufficient to disqualify
him from possessing a firearm under 18 U.S.C. § 922(g)(3). However, jurisdictional issues
complicated the accuracy of the records related to that charge: on February 28 of that year,
a police officer with the Police Department for the City of Columbia, South Carolina (the
“Columbia PD”), had arrested Roof at the Columbiana Centre Shopping Mall for illegal
possession of Suboxone, a Schedule III controlled substance. The Mall lies within the city
limits of Columbia, in a portion of the City that falls in Lexington County, South Carolina.
Although that portion of the City is in Lexington County, the majority of Columbia is
located within adjacent Richland County. Accordingly, the Columbia PD has jurisdiction
over the Mall (as does the Columbia Municipal Court), but the Lexington County Sheriff’s
Office (the “LCSO”) processes arrests arising from the Mall and the 11th Circuit Solicitor’s
43
Office (which has jurisdiction over Lexington County) prosecutes cases arising from those
arrests.
After the Columbia PD officer arrested Roof, he was booked that day at the LCSO.
The next day, March 1, the officer applied for an arrest warrant with the Columbia
Municipal Court, which issued that same day (stating the offense occurred within the
“Municipality of [the] City of Columbia,” J.A. 331). Roof was served with the warrant on
March 2. 3 Later that month, the 11th Circuit Solicitor’s Office filed a criminal complaint
against Roof, charging him with the offense of simple possession of a Schedule III
controlled substance without a prescription, in violation of S.C. Code § 44-53-370(c), for
which the first offense is a misdemeanor, S.C. Code § 44-53-370(d)(2). See Sanders v.
United States, 324 F. Supp. 3d 636, 642 (D.S.C. 2018).
On April 11, while the charge was still pending, Roof sought to purchase a firearm
at a federally licensed firearms dealer in West Columbia, South Carolina. 4 The dealer
contacted the NICS to run the mandated criminal background check. Following a review
of internal databases, an NICS representative found information on the Interstate
Identification Index (the “III”) indicating Roof had been arrested by the LCSO.
Specifically, the results provided:
Arresting Agency[:] LEXINGTON CNTY SO
...
Charge[:] MDP, SCH I B,C,LSD AND SCH II,[ ]COCAINE 3RD/SUB
Statute[:] (44–53–370(B)(1) SC)
3
Both the Columbia PD and the LCSO submitted an incident report regarding the
arrest to the N-DEx. However, as the majority notes, the Examiner did not have access to
the N-DEx. See Maj. Op. at 19.
4
West Columbia is a separate city from Columbia.
44
Severity[:] Felony
J.A. 450. However, these results included two significant clerical errors made by the LCSO
when it submitted the information to the III. First, the results misidentified the class of the
crime, identifying it as a felony charge for a third or subsequent offense for distributing or
manufacturing a Schedule I or II narcotic in violation of S.C. Code § 44-53-370(b)(1)—
not the misdemeanor possession offense for which Roof was actually arrested and charged
under S.C. Code § 44-53-370(d)(2). Second, the results named the arresting agency as the
LCSO, not the Columbia PD. Regardless, because of the potential disqualifiers arising from
these results, the representative transferred the file to another NICS section, which placed
the transaction in the NICS Delay Queue for further research. 5
The next business day, April 13, the NICS Examiner pulled the transaction from the
Delay Queue. Pursuant to SOPs 5.0 (Processing Delay Queue Transactions) and 5.5.4 (In-
House Research), the Examiner first checked the internal databases but found no
information beyond what was reported in the III. This information indicated two potential
federal prohibitors barring transfer of the firearm to Roof: (1) as the result of the
incorrectly-listed felony charge, a conviction “in any court of[ ] a crime punishable by
imprisonment for a term exceeding one year,” 18 U.S.C. § 922(g)(1); see also 18 U.S.C.
5
Specifically, that NICS section confirmed the III result matched Roof’s identifying
information and placed the transaction in “delayed” status, thereafter informing the dealer
that Roof could receive the firearm on April 16 unless otherwise notified by the NICS
before then.
45
§ 922(d)(1) (prohibiting the transfer of a firearm to such an individual);6 and (2) “unlawful use[]
of or addict[ion] to any controlled substance,” 18 U.S.C. § 922(g)(3); see also 18 U.S.C.
§ 922(d)(3) (prohibiting the transfer of a firearm to such an individual). J.A. 703–04. As
the Examiner explained, “I kn[e]w the prohibitor was 1 or 3. It was federal—for a felony
conviction or for Federal Prohibitor 3, the drugs.” J.A. 703–04; see also J.A. 1301 (N-DEx
supervisor explaining that his “understanding” of the “two potential prohibitors” was that
Roof “could have been convicted of a felony since the arrest” or “the underlying facts of
the arrest could show [Roof] to be an unlawful drug user or addict”); J.A. 1418 (noting that
“[a]fter reviewing the record, the Examiner identified two potential federal prohibitors,”
either “a felony arrest” under § 922(g)(1) or a “drug violation[]” under § 922(g)(3)).
A number of SOPs guided the NICS Examiner’s research of these prohibitors. With
respect to the first potential disqualifier, SOP 5.5.3 (Missing Disposition) provided that an
examiner “must obtain information to determine if the receipt of a firearm would violate
state or federal law.” J.A. 490. Such information could come in the form of (1) a final
disposition (that is, a “sentencing or other final statement of a criminal case”) or (2) in the
case of a missing or delayed disposition, a dated indictment or information for a felony
offense. J.A. 490 (emphasis omitted).
6
A felony indictment also bars sale of a firearm to an individual. Under § 922(d)(1),
“It shall be unlawful for any person to sell . . . any firearm . . . to any person knowing or
having reasonable cause to believe that such person . . . is under indictment for, or has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one
year[.]” 18 U.S.C. § 922(d)(1); see also J.A. 108 (Plaintiffs noting that an individual “under
indictment for a felony crime punishable by imprisonment for a term exceeding one
year . . . could not legally be sold a gun under the Brady Act, 18 U.S.C.A. § 922(d)(1)”).
46
Alternatively, with respect to the second potential prohibitor, SOP 5.4.7 (Controlled
Substance (Federal Prohibitor § 922(g)(3)) provided that for possession to be a disqualifier
under § 922(g)(3), an examiner may make “[a]n inference of current use” through
“evidence of a recent use or possession of a controlled substance or a pattern of use or
possession that reasonably covers the present time.” J.A. 430. 7 For controlled substance
arrests within the past year without a conviction—as was the case here—the arrest was
enough to “establish [an] inference of current or recent drug use or possession,” if one of
two criteria was met. J.A. 431. First, “[i]f there has been a drug arrest in the past year,
without a conviction,” an examiner “must determine if it can be proven that the individual, or
the substance in his/her possession, tested positive for a controlled substance that has no
federally accepted medical use[.]” J.A. 431 (emphases omitted). SOP 5.4.7 further noted
that the NICS “will only accept the material is a controlled substance once proven by a
field or chemical test” and will not accept “the officer’s opinion that the material is a
controlled substance.” J.A. 431. Second, it was also “enough to establish recent
use/possession” if “an individual admits to using or possessing a controlled substance
which has no federally accepted medical use.” J.A. 431 (emphasis omitted). In sum, to
establish an inference of current use, the SOPs directed the Examiner to obtain additional
information, most likely contained within the “incident report or other documentation”
7
Such evidence may include (1) “a conviction for use or possession of a controlled
substance within the past year,” (2) “multiple arrests for such offenses within the past five
years with the most recent arrest occurr[ing] within the past year,” or (3) “persons found
through a drug test to use a controlled substance unlawfully, provided that the test was
administered within the past year.” J.A. 430.
47
underlying the arrest. J.A. 431; see also Sanders, 324 F. Supp. 3d at 645 (noting that “the
examiner [was required] to obtain further details about the Roof arrest, which were
contained in the arresting officer’s incident report”).
To conduct such outside research, the Examiner was guided at the broadest level by
SOP 5.5.5 (External Research), which provided:
The Examiner will contact the state POC, the courts, district attorneys,
probation offices, arresting agencies, etc. for disposition, level of offense,
incident report, etc. via fax, phone, mail, email, and/or Nlets in accordance
with the preference indicated on the State Processing Page and Contact List.
If the preference indicates that other agencies can only be contacted if no
response is received, or as a last resort, other agencies must be contacted, as
soon as possible after the 10th calendar day. This will ensure that all
resources, in keeping with the NICS Standard Operating Procedures and
established state contact procedures, are being exhausted. Every effort must
be made to obtain the necessary information, in order to reach a final
decision on a NICS transaction during the research phase.
J.A. 549 (emphases added).
In turn, the South Carolina Processing Page (the “Page”) noted that “[c]ourts and
arresting agencies are the primary contact (follow Contact List),” while also providing:
“During Initial Research Please Contact ALL Available Agencies Per Contact List.” J.A.
491. The Page then listed the various agencies that were to be contacted for different types
of information, noting that the arresting agency—whether the sheriff’s office or the police
department—is the primary “[c]ontact for police/incident report[s], lab report[s], and
disposition information unless otherwise noted on contact list.” J.A. 492. 8 In turn, the
specific contact list for Lexington County included the LCSO—the named arresting agency
8
The Page also listed courts for disposition information, as well as solicitor’s
offices. J.A. 491–92.
48
in the III—with a bolded fax number indicating a preference for fax inquiries. J.A. 496.
That contact list also included the 11th Circuit Solicitor’s Office, with a similarly-bolded
fax number. J.A. 497.
To begin her research, the Examiner first checked internal NICS databases but did
not discover any additional information. She then began her external research by checking
the Lexington County General Sessions Court’s website, where she located a pending
charge against Roof for “Drugs / Poss. of other controlled sub. in Sched. I to V—1st
offense,” a misdemeanor. J.A. 521. The website did not name the arresting agency, but did
name the officer who had arrested Roof (without identifying he was an officer with the
Columbia PD) and the address (but not the name) of the Columbia PD. See J.A. 522.
Although these records indicated Roof might be disqualified from a firearm purchase as a
drug user, they were insufficient under either SOP 5.5.3 or 5.4.7 to establish
disqualification. 9 As explained previously, when there is a potential felony offense, SOP
5.5.3 requires an information or indictment to establish disqualification. Alternatively,
when there has been a recent controlled substance arrest without a conviction, SOP 5.4.7
requires either (1) proof that the substance was tested and confirmed to be a controlled
substance or (2) that the arrestee admitted possession of a controlled substance. See
Sanders, 324 F. Supp. 3d at 645.
9
Although the offense identified on the General Sessions Court website was a
misdemeanor, SOP 5.0 (Processing Delay Queue Transactions) provides that “[i]f the
record contains a potential disqualifier, further research is required.” J.A. 473.
Accordingly, the Examiner was not incorrect to pursue a potential disqualifier based on
§ 922(d)(1) or (g)(1). As noted above, she understood there to be two potential disqualifiers
requiring additional research.
49
That same day, April 13, the Examiner generated a Form R-84 Final Disposition
Report and sent it via automated fax to the LCSO. “The Examiner listed information [the]
NICS required on the R-84, including an incident report, whether the drugs were field
tested, and if Roof admitted to using drugs.” J.A. 1419. The Examiner also sent an
automated fax to the 11th Circuit Solicitor’s Office in order to determine if Roof was under
felony indictment. The LCSO responded that day: “No [a]rrest or [r]eport for this date. The
last [a]rrest was on 2-28-15, Columbia PD will have the [r]eport.” J.A. 583. The 11th
Circuit Solicitor’s Office never responded to the fax.
The Examiner then reviewed a list in the NICS database of all law enforcement
agencies operating in Lexington County, from which the City of Columbia was erroneously
omitted. After reviewing the list, she observed the City of West Columbia was in Lexington
County, “the same county” where the request from the firearms dealer had originated. J.A.
1423; see also J.A. 1224; 1417. That same day, the Examiner faxed the West Columbia
Police Department in an effort to locate the incident report. 10 On the morning of April 14,
West Columbia responded, “Not WCPD warrant. This is not a WCPD arrest.” Sanders,
324 F. Supp. 3d at 646. After receiving that response, the Examiner did not further attempt
to locate the Columbia PD. She instead proceeded to process other inquiries while awaiting
a response from the 11th Circuit Solicitor’s Office, during which time the waiting period
elapsed and the dealer exercised its discretion to transfer the firearm. Roof purchased the
firearm on April 16 and used it during the June 2015 shooting.
10
The contact list did not indicate a preference for contact by phone or fax.
50
III.
A.
I turn now to the first question posed by the discretionary function exception test:
did the conduct at issue involve an element of judgment or choice? The exception “will not
apply when a federal statute, regulation, or policy specifically prescribes a course of action
for an employee to follow” because there “the employee has no rightful option but to adhere
to the directive.” Berkovitz, 486 U.S. at 536. But “[i]n the absence of an expressly articulated
standard to limit” discretion, “it is impossible to find that the Government’s decisions [are]
anything but purely discretionary.” Goldstar (Panama) S.A. v. United States, 967 F.2d 965,
970 (4th Cir. 1992).
Bearing this standard in mind, I first conclude the Examiner complied with any
aspects of the relevant SOPs that were mandatory. Second, to the extent she needed to
perform additional research, the SOPs afforded her discretion in how to do so. Finally, we have
cautioned against finding that “select passages from a lengthy and complex” set of agency
guidelines impose mandatory directives, particularly where such an interpretation of the
guidelines “would elevate rigidity over flexibility” and “handicap efficient government
operations.” Holbrook v. United States, 673 F.3d 341, 347 (4th Cir. 2012).
1.
First, the Examiner complied with the conduct deemed mandatory by the SOPs,
including 5.4.7, 5.5.3, 5.5.5, and the South Carolina Processing Page. Accordingly, the
Government cannot be liable here. See Gaubert, 499 U.S. at 324 (“[I]f a [Government
51
directive] mandates particular conduct, and the employee obeys the direction, the
Government will be protected because the action will be deemed in furtherance of the
policies which led to the promulgation of the [directive].”).
Specifically, to disqualify Roof from purchasing a firearm under § 922(d)(1) or
(g)(1), SOP 5.5.3 required the Examiner to obtain a felony indictment or information.
Alternatively, to disqualify Roof from purchasing a firearm under § 922(g)(3), SOP 5.4.7
required either Roof’s admission of drug use or testing confirming a controlled substance,
either of which could have been contained in the incident report. To obtain either the
indictment or incident report, SOP 5.5.5 mandated that the Examiner “contact the state
POC . . . for disposition, level of offense, incident report, etc. . . . in accordance with the
preference indicated on the State Processing Page and Contact List.” J.A. 549.
The Examiner noted that the Processing Page listed the arresting agency as the
primary contact for incident and lab reports. Alternatively, the Examiner “knew from the
website that the case was pending” and would not have a disposition, but that the 11th
Circuit Solicitor’s Office—rather than the Lexington County General Sessions Court—
would be able to tell her if Roof was “under . . . felony indictment.” J.A. 544–45; see also
J.A. 491 (South Carolina Processing Page noting the courts are the primary contact for the
“Record of Conviction” or “Disposition Sheet,” which the Examiner was not seeking). In
sum, the SOPs required the Examiner to contact the LCSO—the (incorrect but listed)
arresting agency—for the incident report and the 11th Circuit Solicitor’s Office for the
indictment.
This is precisely what the Examiner did. As she summarized:
52
I went to the agencies that [were] listed per the processing page, what those
agencies had. [P]er the processing [page], you obtain your incident reports
from the sheriff’s office, which I did contact. The solicitor has indictment
information. You check for firearm restrictions, drug testing from the
solicitor, which I contacted. Possible indictments, that’s why I contacted
them. Because I knew the case was pending, I knew it [had] not [gone] to
trial per the website, so that is why I went to those agencies for that
information.
J.A. 704. Thus, with respect to the potential § 922(g)(3) prohibitor, although the Examiner
failed to contact the actual arresting agency, she did contact the arresting agency identified by
the NICS database, the LCSO, for the incident report. As the Government correctly noted,
“The Examiner violated no clear and mandatory duty by acting on the basis of information
provided by local law enforcement.” Resp. Br. at 27. And insofar as she was required to
contact the 11th Circuit Solicitor’s Office to research the § 922(d)(1) or (g)(1) prohibitor,
she did. Put simply, the Examiner did not violate SOP 5.5.5’s directive to “contact the state
POC . . . in accordance with the preference indicated on the State Processing Page” for the
necessary information. J.A. 549.
2.
Second, although the above-listed SOPs and the Processing Page dictated how the
Examiner was to begin the background check—in this instance, by contacting the arresting
agency for an incident report and the Solicitor’s Office for the indictment—the SOPs did
not dictate how she was to continue with her research after the initial contact. After the
Examiner received a fax response from the LCSO indicating that agency did not have the
requested report but that the Columbia PD would, she continued her search. Drawing from the
fact that Lexington County “was the actual county that was listed on [Roof’s] record,” J.A.
53
538, the response from the LCSO, and her experience as a researcher, she could reasonably
assume that the LCSO was referring her to another police department within Lexington
County. As she testified, “[A] lot of [the] time the agencies . . . don’t write a lot of
information . . . they didn’t tell me that it was in a different county. They just wrote
‘Columbia.’” J.A. 538–39. Accordingly, she reviewed the list of police departments and
sheriff’s offices in Lexington County and located the West Columbia PD, the same city
where the firearms dealer’s request originated: “So by my contact list, I went to West
Columbia PD because that was the closest thing that I had in that county.” J.A. 539. She
explained, “I didn’t have any reason to go to any other county.” J.A. 543.
Furthermore, she also knew she had conducted additional research into a separate
potential prohibitor when she had faxed the 11th Circuit Solicitor’s Office. Accordingly,
when the West Columbia PD responded that Roof’s arrest was “not a WCPD [one],”
Sanders, 324 F. Supp. 3d at 646, she instead “left the Roof inquiry in the Delayed Queue
and processed other inquiries while awaiting a response” from the 11th Circuit Solicitor’s
Office as to the other potential prohibitor—a point the majority ignores. J.A. 1419.
But even if the Examiner were not researching another potential prohibitor and were
instead awaiting any general response from the Solicitor’s Office, she violated no SOPs by
choosing to pause her research in the interim. She could do so because, as the district court
correctly recognized, “the NICS SOPs did not address this potential situation and NICS
practice” generally prohibited follow-up contact or external Internet research. Sanders, 324
F. Supp. 3d at 647. Put another way, there was nothing more that the SOPs required the
Examiner to do. Indeed,
54
[a]t this point in the process, the Examiner had ‘Exhausted all Means’ [per
SOP 5.15] as all possible agencies were contacted as outlined in the state-
specific list maintained by NICS, and all database searches were conducted
as defined by NICS SOPs. Since court records revealed no convictions and
contacted agencies provided no definitive clarifying information or did not
respond, the Examiner left the Roof inquiry in the Delayed Queue and
processed other inquiries while awaiting a response from the Lexington
County Solicitor’s Office.
J.A. 1419 (footnote omitted). At bottom, the SOPs afforded the Examiner the discretion to
pause the research until she received further information.
The majority contends this reasoning is flawed because (1) “the SOPs require[d]
[the] Examiner[ ] to contact the arresting agency when researching Delayed transactions”
and “[o]nce the Examiner’s inquiry revealed that the Columbia PD was the arresting agency
and that it had the report, she was required to contact it”; and (2) the Examiner was directed
to “use[ ] the resources at her disposal . . . to confirm that Columbia is in Richland County
and . . . to find the Columbia PD’s contact information on the Richland County list.” Maj.
Op. at 30–32. But in none of these statements can the majority point to a specific SOP or
language mandating the course they project. With respect to SOP 5.5.5, the Examiner did
contact one of the required POCs—the listed arresting agency—and then contacted another
potential arresting agency that she found after reasonably assuming the arresting agencies
to be within the same county. Nothing on the Page indicated to the contrary. Furthermore,
given that the Examiner also (though erroneously) believed there was another potential
prohibitor under § 922(d)(1) or (g)(1), she had faxed the relevant point of contact with
respect to that potential disqualifier. Therefore, even after she had received the negative
response from the West Columbia PD, she still had an outstanding inquiry with another
55
state POC. Thus, although the majority opines that this is not the type of case “where an
Examiner makes inquiries and receives no response—or receives no response of value—
and thus exercises her discretion to set aside the research and process other transactions,”
Maj. Op. at 30, this case in fact fits comfortably within that categorization. Given that the
Examiner had made contact with two alternative state POCs in accordance with SOP 5.5.5
and had received conflicting and negative responses from one set (the arresting agencies),
and had not received a response from the other (the Solicitor’s Office), she acted well within
her discretion to process other transactions while awaiting a response.
Furthermore, to the extent the majority and the Plaintiffs would look to additional
language in SOP 5.5.5 as mandating follow-up research, that language is too broad to carry
that load. Specifically, the majority concludes that SOP 5.5.5 required that the Examiner use
all of the available resources at her disposal to contact the actual, but not listed, arresting
agency, such as by contacting the South Carolina Law Enforcement Division (“SLED”) for
clarification or by examining the city contact list and searching for the Columbia PD. The
Plaintiffs, citing SOP 5.5.5, similarly contend that the Examiner violated the SOP by failing
to “make every effort to obtain the information needed to reach a final decision,” such as
contacting SLED or the Lexington County General Sessions Court or calling the LCSO or
West Columbia Police Department for clarification. See Opening Br. at 10, 13, 23. As this
Court has previously recognized, however, such language is too broad to confer a mandatory
course of action removing discretion but instead shows an exercise of discretion to choose
among numerous options. See Baum v. United States, 986 F.2d 716, 722 (4th Cir. 1993)
(noting that “very general, sweeping language is insufficient” to impose a mandatory
56
directive). Indeed, by suggesting multiple courses of action that the Examiner could have
taken, the majority and the Plaintiffs verify that there was room for the exercise of the
Examiner’s judgment in how to proceed. In other words, hers was a discretionary choice.
In addition, it was NICS practice at the time to refrain from contacting state entities
by phone, sending follow-up faxes, or conducting external Internet-based research. See
Sanders, 324 F. Supp. 3d at 646–47; see also J.A. 1429. As the FBI noted, “[d]ue to NICS
Section SOP and workloads, Examiners do not routinely call external agencies for
information.” J.A. 1429. Furthermore, “many external agencies require[d] fax requests.”
J.A. 1429. Similarly, NICS Management had eliminated a second/follow-up fax
requirement because “the majority did not contribute to the resolution of an ‘open’
transaction” and because the requirement had “experienced up to an approximate 85
percent failure rate.” J.A. 1603. Finally, testimony from NICS managers showed that web
searches were not encouraged because their results were generally unreliable. See J.A. 426–27
(“The employees are asked to use the processing page and contact pages that we have that
have been validated [rather than an Internet search engine]. That information is information
that has been validated by a law enforcement agency.”).
Other SOPs and NICS protocols underscore the discretion afforded to the Examiner
in how to continue the background check. First, SOP 5.15 provided that when examiners
researched all available resources for information, “the following [was to] be entered into
the transaction[:] All resources identified after reasonable research have been exhausted[.]”
J.A. 1419. Thus, this SOP required only “reasonable research”—and, like the similarly broad
57
“every effort” language, it cannot be viewed as imposing a mandatory course of action. See
Baum, 986 F.2d at 722.
Second, the SOPs also indicated, contrary to the majority and the Plaintiffs’ view,
that the Examiner was not required to resolve her research within three days. See Opening
Br. at 7, 23–24. The Plaintiffs argue the Examiner violated SOP 5.0, which states “[i]t is the
responsibility of the NICS Section to answer all Delayed transactions within the three-
business-day time frame.” J.A. 476. According to the Plaintiffs, this timeline imposed upon
the Examiner a responsibility to pursue all possible leads within that three-day period. But
SOP 5.0 cannot be read to have imposed a mandatory course of action on the Examiner
because FBI regulations and NICS SOPs themselves contemplated that some transactions
would take longer than three days to resolve. See 28 C.F.R. § 25.2 (explaining that an “open”
transaction is one in which the NICS continues researching potentially prohibiting records
even after three business days have elapsed); SOP 5.16 (concerning the processing of expired
transactions). The language of SOP 5.5.5 itself confirmed this reading by providing that “[i]f
the [processing page] preference indicates that other agencies can only be contacted if no
response is received, or as a last resort, other agencies must be contacted, as soon as possible
after the 10th calendar day.” J.A. 549. 11 Thus, SOP 5.5.5 contemplated that research could
take longer than three days to resolve.
11
To the extent the Solicitor’s Office was listed as such a “last resort” contact on
the South Carolina Processing Page, the Examiner complied with this directive by
contacting them well within the ten-day timeframe.
58
Along this line, NICS protocol at the time indicated that if an examiner was unable
to resolve a delayed transaction within three business days, it remained “Open” for the
remainder of a thirty-day period, permitting other examiners to access the inquiry if new
information became available. J.A. 1416. After thirty days, it became “Expired,” allowing
any other examiner to act on it. J.A. 1416. Thus, NICS practice specifically assumed some
transactions “would remain in Delay status indefinitely or until [they were] purged per statute
from the NICS system.” J.A. 1419. 12
In sum: because the court records revealed no convictions and the contacted
agencies provided no verified information, it was within the Examiner’s discretion to leave
the Roof inquiry in the Delay Queue and process other inquiries while awaiting a response
from the Solicitor’s Office. Altogether, as the district court summarized, the SOPs required
little of the Examiner, mandating only that she “send a single automated fax to a law
enforcement agency with no expectation or requirement that follow up work be done if the
necessary records [were] not obtained.” Sanders, 324 F. Supp. 3d at 647. On this record, it
cannot be said that the Examiner violated a mandatory duty.
3.
12
Similarly, SOP 5.16 specifically provided that if an examiner encountered an
expired transaction regarding a purchaser he or she was currently researching, that
examiner had the responsibility to determine if a final status could be applied to that expired
transaction. That SOP also provided that NICS supervisors could assign a backlog of
expired transactions for processing “when the delay queue [was] at a manageable level and
time [was] permitted to work on special projects.” J.A. 477. Thus, these SOPs and protocols
further indicate that NICS examiners had room to decide how to continue a background
check—including by leaving it “Open.”
59
Finally, I conclude this portion of the analysis by making three general observations
regarding the nature of the discretionary function exception. First, to the extent that the SOPs
at issue contained overlapping or conflicting directives, such instructions should be viewed
as “expand[ing], rather than contract[ing] the discretion” afforded to the Examiner.
Holbrook, 673 F.3d at 347. In Holbrook, this Court considered the Federal Aviation
Administration’s (“FAA”) decision to suspend the airworthiness certification of a helicopter
that had been leased by the owner of a flight instruction business. The owner sued the FAA
pursuant to the FTCA, claiming monetary loss to his business as the result of the suspension
of the certification. In particular, the owner asserted that the certification should never have
been revoked because the FAA inspector had assessed the aircraft under the wrong Code of
Federal Regulations (“CFR”) provision.
Nonetheless, this Court concluded that the FAA’s establishment of internal
procedures governing certification (including which CFR provision to apply) plainly
afforded the inspector discretion in part because “the guidance [was] conflicting at best.”
Id. As the FAA internal procedures provided conflicting or overlapping advice concerning
the appropriate CFR provision to apply, such guidance expanded, rather than limited, the
inspector’s discretion in choosing among which agency instructions to follow. And similarly
here, to the extent that the SOPs failed to provide guidance for the particular situation the
Examiner faced, or provided conflicting or overlapping instructions (such as the appropriate
agency to contact for certain records, or the timeline within which the Examiner was to
complete her inquiry), the nature of these instructions should be viewed as expanding the
Examiner’s discretion.
60
Second, the majority views the SOPs at issue too narrowly, excising them from the
broader regulatory and guidance scheme. Although the majority points to the directing
language in SOP 5.5.5 as removing the Examiner’s discretion, the inclusion of some
mandatory language in a regulation or SOP does not automatically mean the action at issue
falls outside the scope of the discretionary function exception. After all, “[i]t would be the
rare guidance manual that did not contain some arguably mandatory language.” Seaside
Farm, 842 F.3d at 859; see also Indem. Ins. Co., 569 F.3d at 180 (finding the challenged
conduct discretionary despite the presence of some mandatory language). Rather, because
this Court’s “duty [is] to construe the nature of the statutory and regulatory regime as a
whole,” a highly-structured SOP does not automatically mean the SOP imposes a mandatory
course of action. Seaside Farm, 842 F.3d at 859. As the Supreme Court noted in Berkovitz,
many such structured regulations and SOPs may still require a determination of whether
agency action involved an element of discretion. See 486 U.S. at 545–46. And where such
discretion is afforded to Government actors—as here—a determination of “[w]hether the
agency pursued its investigation, interpreted relevant evidence, or balanced policy
considerations in what [the challenger] believes to be an optimal manner” essentially amounts
to “judicial second guessing,” which “the discretionary function exception forbids.” Seaside
Farm, 842 F.3d at 858–60; see also Holbrook, 673 F.3d at 348 (noting that a court
considering whether the exception applies must consider “the broader goals sought to be
achieved” and whether such goals “necessarily involve an element of discretion”).
Third, as we noted in Holbrook, we must proceed cautiously when seeking to impose
liability on the Government for attempting to provide guidance to its agents in areas that
61
require lengthy and complex instructions. See 673 F.3d at 346–48. If we were to find the
discretionary function exception does not apply in this situation—where the Examiner acted
in accordance with the directives given to her by the FBI—this would effectively subject the
Government to per se liability for every act of negligence by a Government actor, even when
they attempt to comply with agency directives. Such de facto guaranteed insurance is not
consistent with the discretionary function exception to the FTCA.
Recall that Holbrook warned that the “price of circulating internal guidance should
not be an exponential increase in exposure to a tort suit” because “[i]f select passages from
a lengthy and complex order could serve as the basis for government tort liability,
[agencies] would be hobbled by the specter of litigation” as they worked to pursue their
Congressionally-delegated mandates. Id. at 347. Although I agree with the majority that
the Government wrongly contended that internal guidance can never give rise to
Government liability under the FTCA, see Maj. Op. at 28 n.4, we must also heed the
warning of our established precedent that an agency’s attempts to provide uniform and
efficient services through the promulgation of internal guidance should only rarely give
rise to liability, particularly when the cost would be hindrance to the agency’s objectives.
See Tiffany v. United States, 931 F.2d 271, 279–81 (4th Cir. 1991) (rejecting the idea that
an “Air Force regulation that designates internal operating procedures automatically gives
rise to an actionable duty in tort to comply with them” and recognizing that an agency
“might well respond by setting fewer procedures and regulations if each could give rise to
civilian tort suits,” resulting “in increased confusion and a loss of military efficiency”).
62
Furthermore, imposing liability here could hamstring the proper delivery of a
Government service in a key area of public safety. If, for example, the NICS were to
respond by issuing an SOP requiring an examiner to follow up on every potential lead she
received as the result of contact with the appropriate SOPs, the effect would be a decrease
in agency efficiency because examiners would be tied up in pursuing various leads—
particularly given the patchwork nature of information from databases and other sources
to which examiners have access. Any attempts to improve the efficiency and efficacy of
firearms background checks should be focused on improving examiners’ access to accurate
information. The majority’s approach instead hampers examiners by requiring them to
follow up on every potential lead and expend further precious resources. See infra Section
III.B.
In sum, because “[t]he existence of some mandatory language does not eliminate
discretion when the broader goals sought to be achieved necessarily involve an element of
discretion,” Holbrook, 673 F.3d at 348, we should conclude that the first step of the
discretionary function inquiry has been met. After all, the discretionary function exception
is designed to “prevent judicial second-guessing of legislative and administrative decisions
grounded in social, economic, and political policy through the medium of an action in tort.”
United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797, 814 (1984).
B.
With respect to the second step—whether the exercise of the judgment was
grounded in public policy considerations—the NICS Examiner’s actions clearly met this
63
requirement. In concluding so, “we must determine whether that judgment is of the kind
that the discretionary function exception was designed to shield, i.e., whether the
challenged action is based on considerations of public policy.” Indem. Ins. Co., 569 F.3d
at 180. “Critical to proper analysis, this inquiry focuses not on the agent’s subjective intent
in exercising the discretion,” but rather “on the nature of the actions taken and on whether
they are susceptible to policy analysis.” Id. And here, the background check is susceptible to
policy analysis because—even though examiners may not themselves engage in
policymaking—decisions regarding how a background check is conducted are ultimately
public policy questions.
More specifically, the question of whether an examiner should keep pursuing an
investigation or process other transactions while awaiting responses is fundamentally
grounded in the question of how to most effectively utilize limited agency resources. The
regulations and SOPs guiding the checks arise from the need to determine how to most
efficiently allocate limited resources to conduct over eight million background checks each
year, see J.A. 1416—a quintessential policy judgment. See Varig Airlines, 467 U.S. at 820
(noting the “policy judgments” at issue in that case involved the “the efficient allocation of
agency resources”); see also Holbrook, 673 F.3d at 345 (noting the discretionary function
exception was designed to protect the Government “from liability that would seriously
handicap efficient government operations”). And in doing so, the FBI must make further
policy judgments about the amount of evidence needed to deny a transaction and how to
64
manage cooperative efforts with external state and local agencies from whom such
evidence is often obtained. 13
Thus, how the SOPs guide NICS examiners is a question inherently bound up in
considerations of economic and political policy—the type of considerations Congress
intended to insulate from judicial second-guessing. For these reasons, the Examiner’s
conduct fulfills the second step of the discretionary function inquiry. Accordingly, I would
conclude that the Plaintiffs have failed to carry their burden of demonstrating that the
discretionary function exception does not apply.
IV.
For the reasons discussed, I respectfully dissent from the majority’s decision to
reverse and remand the Plaintiffs’ FTCA claim with respect to whether the discretionary
function exception applies to the SOPs. At bottom, the result will effectively diminish the
protections that the discretionary function exception was designed to afford to policy-
driven Government decisions. I would instead find that the discretionary function
13
This point is well illustrated by NICS Management’s decision in 2006 to
eliminate, as discussed above, a requirement that examiners send follow-up faxes.
Specifically, as part of a process to streamline background checks, the FBI assessed “the
amount of time expended in processing the follow-up/second requests versus the number
of such responses received as a result of follow-up efforts[.]” J.A. 1603. After concluding
that (1) most second faxes did not receive a response or contribute to the resolution of a
background check but instead “utilize[d] valuable time that could otherwise be expended
to more efficiently and effectively provide resolution to other delayed transactions” and (2)
external state and local agencies complained that the second fax requests contributed to
delays in responding to initial requests, NICS eliminated the second fax requirement. J.A.
1604.
65
exception shields the Examiner’s actions insofar as they were guided by the SOPs and
affirm the district court’s decision in this regard. I concur in the majority’s opinion in all
other respects.
66