United States District Court, W.D. Texas, San Antonio Division
ORDER ON MOTION TO DISMISS
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date, the Court considered the Government's Motion to
Dismiss for Lack of Jurisdiction (docket no. 28),
Plaintiffs' response (docket no. 44), the
Government's reply (docket no. 45), Plaintiffs'
sur-reply (docket no. 51), and the Government's
sur-sur-reply (docket no. 52). After careful consideration,
the Court GRANTS IN PART AND DENIES IN PART the
cases stem from the 2017 mass shooting in Sutherland Springs,
Texas. On November 5, 2017, Devin Patrick Kelley killed 26
churchgoers and injured 20 more. Among the plaintiffs in
these consolidated cases are surviving churchgoers and
relatives of those killed. They seek recovery against the
United States under the Federal Tort Claims Act. Kelley
purchased the firearms he used to kill or injure Plaintiffs
and Plaintiffs' family members at an Academy Sports &
Outdoors on April 7, 2016. The thrust of this lawsuit is that
Kelley should not have been able to purchase these firearms,
but failures by the United States Air Force and Department of
Defense to collect, handle, and report required information
allowed him to do so.
law prohibits certain categories of people from buying
firearms. See 18 U.S.C. § 922. Devin Kelley fit
several of these categories: he was convicted of a crime
punishable by imprisonment of more than one year, he was
committed to a mental institution, he was dishonorably
discharged from the Armed Forces, and he was convicted of a
crime of domestic violence. Yet despite having the duty to
process and report this information, the Air Force did not,
so when the retailer ran his name through the background
check system it learned no disqualifying information. Here,
Plaintiffs seek to hold the Government accountable for this
Kelley entered active duty as an airman with the United
States Air Force (“USAF”) in January
2010. Kelley was initially assigned to an
Intelligence Specialist program but was cut from the program
due to poor grades. He was transferred to the 49th Logistics
Readiness Program. Kelley was stationed at Holloman Air Force
Base in Otero County, New Mexico.
July 2011 and March 2012, USAF placed in Kelley's file at
least four letters of counseling and at least five letters of
reprimand. Kelley was known to have made threats against his
USAF superiors. Officers were advised that Kelley was
attempting to carry out death threats made to his commanding
officers. Kelley was known to have attempted to smuggle guns
onto a USAF base in violation of base operating procedures
and USAF regulations.
April 12, 2011, Kelley married Tessa K. Loge, who had an
infant son from a previous marriage. Loge moved into USAF
base housing. Kelley committed acts of domestic violence
against Loge and her son. On June 8, 2011, Loge took her son
to Gerald Champion Medical Center in Alamogordo, New Mexico
because he was vomiting. The attending pediatrician also
noticed febrile seizure and facial bruising. A CT scan
revealed a fractured clavicle and subdural hemorrhage. Kelley
produced a video confessing to USAF that he caused these
injuries, and a Court Martial was convened. The NM Children,
Youth, and Families Department took the child into their
Kelley's pre- and post-trial confinement, USAF placed him
on lockdown for suicide risk. While these charges were
pending, in spring 2012 USAF involuntarily committed Kelley
to Peak Behavioral Health Services, located in Santa Teresa,
New Mexico, which has a dedicated unit for U.S. military
personnel. As a basis for committing Kelley, USAF noted:
The Evidence shows a serious escalation of behavior involving
firearms and threats after the physical abuse of a child.
Particularly alarming is his decision to try to obtain
another firearm while undergoing inpatient mental health
care, conducting research on body armor, and then escaping
from the facility late at night without authorization . . . .
Lesser forms of restraint are inadequate to mitigate the
flight risk he poses nor would they prevent him from carrying
out the threats that he has made against others, especially
given the forethought and planning that he showed by
attempting to purchase another firearm and his escape from
the mental health facility.
7, 2012, Kelley jumped a fence and escaped from the facility.
He was apprehended by local law enforcement personnel, who
noted that Kelley was a “danger to himself and
others.” While a detainee at the facility, Kelley
attempted to buy firearms and tactical gear online and have
these items shipped to San Antonio, Texas. USAF was aware
that Kelley attempted to do so. Kelley threatened that if he
were picked up by Security Forces, he would go for their
guns. On July 10, 2012, USAF determined that Kelley should be
confined while awaiting trial because it was foreseeable that
he would not appear for trial or would engage in serious
Martial considered charges against Kelley for: fleeing Peak
Behavior Health Services Facility; causing physical injury to
his stepson; holding a gun to Loge's temple and asking if
she wanted to die; and threatening to kill Loge, members of
her family, and members of his squadron. Kelley was charged
with pointing a loaded gun at Loge and two counts of
threatening his spouse with an unloaded firearm. On November
7, 2012, Kelley pled guilty to striking Loge, choking her,
pulling her hair, and kicking her and to assaulting his
stepson with “force likely to produce death or grievous
bodily harm.” He was sentenced to 12 months of
imprisonment, a bad-conduct discharge, and reduction in rank
to airman basic. USAF discharged Kelley with a “bad
federal law, people with certain characteristics cannot buy
or own firearms (18 U.S.C. § 922(g)) and dealers cannot
sell to those so disqualified (18 U.S.C. § 922(d)).
These disqualifying characteristics include, as relevant
here, those with a misdemeanor domestic violence conviction,
those convicted of a crime punishable by more than a year,
those dishonorably discharged from the military, and those
involuntarily committed to a mental institution.
Brady Handgun Violence Prevention Act, passed in 1993, tasked
the Attorney General with the establishment of the national
instant criminal background check system
(“NICS”). See 34 U.S.C. § 40901.
The Attorney General delegated this task to the FBI. The FBI,
in administering NICS, performs background checks on those
who try to buy a firearm from a federally licensed gun
dealer. As provided in the Brady Act implementing
regulations, when NICS receives a background check request,
NICS must respond with “Proceed” (the go-ahead
signal), “Denied” (stopping the sale), or
“Delayed” (additional information required). 28
C.F.R. § 25.6(c)(iv)(A)-(C).
agencies, including USAF and DOD, are obligated to report
disqualifying information to NICS. Federal agencies that have
“any record of any person demonstrating” that the
person should not be able to purchase a gun “shall, not
less frequently than quarterly, provide the pertinent
information contained in such record to” NICS. 34
U.S.C. § 40901(e)(1)(C).
Brady Act reporting requirement and the reporting
requirements of various other federal statutes (including the
Uniform Federal Crime Reporting Act of 1988 and the
Victim's Rights and Restitution Act of 1990) are made DOD
policy in Department of Defense Manual 7730.47. Further,
Department of Defense Manual 7730.47-M Volume 1, Enclosure 3
implements the policy of Manual 7730-47 and prescribes
reporting requirements pursuant to the various federal laws.
manual sets out a central DOD repository, Defense
Incident-Based Reporting System (“DIBRS”), which
is to include incidents of domestic violence and criminal
data. DOD uses this to transmit reportable crimes to the
FBI's databases, which are used in background searches.
DIBRS was created because, “[i]n addition to meeting
the mandatory statutory requirements, ..... [DOD has] been
faced with increasing requests from Congress, the Department
of Justice, and other agencies for statistical data on
criminal offenses[.]” Manual 7730.47-M Volume 1,
Enclosure 3 at 11. “These requests necessitate
improvements in the ability of [DOD] to track a crime or
incident through the law enforcement, criminal investigation,
command action, judicial, and corrections phases.”
DOD's and USAF's History of Reporting
these federal reporting obligations, as incorporated in and
implemented by the DIBRS system, USAF and DOD have
consistently mis- or under-reported required information.
2014, the DOD's Inspector General (“IG”)
evaluated compliance with DOD's reporting procedures. The
investigation concluded that
10 years of DoD criminal incident data have not been provided
to the FBI for inclusion in the annual uniform crime reports
to the President, the Congress, State governments, and
officials of localities and institutions participating in the
UCR Program, as implemented in DoD Directive 7730.47 and DoD
Manual 7730.47 M, Volume 1.
time period sampled, Air Force Security Forces failed to
submit fingerprint cards and final disposition reports in 60
percent of cases.
in February 2015, the IG conducted a comprehensive review of
the failures of the branches of the U.S. military to promptly
and accurately input criminal conviction information into the
appropriate computer databases. This study found that,
between June 2010 and October 31, 2012,  from a sample of
358 convictions that required reporting, USAF submitted 248
fingerprint cards and 245 final dispositions. As part of this
report, the IG made recommendations to USAF. The first
recommendation was for USAF to submit and enter the missing
fingerprint and final criminal disposition information for
the sample period into the appropriate databases. Another
recommendation was for USAF to “take prompt
action” to ensure that all arrestee information is
properly reported. USAF agreed to both recommendations.
a 2017 IG report found that USAF did not remedy its reporting
problems. In the sample taken for this report, USAF was
deficient in reporting fingerprints and final dispositions in
94 percent of cases. Referring to the Sutherland Springs
shooting, this IG report stated “[a]ny missing
fingerprint card and final disposition report can have
serious, even tragic consequences, as may have occurred in
the recent church shooting in Texas.”
here, while USAF was required to enter Kelley's
conviction and criminal history into federal databases, USAF
did not do so. USAF allegedly did not report Devin
Kelley's domestic violence conviction, his incarceration
for a crime punishable by more than one year, his commitment
to psychiatric inpatient care, or his bad conduct discharge
post-court martial to NICS, the Interstate Identification
Index, or the National Crime Information Center.
Sutherland Springs Shooting
2016 and 2017, Kelley purchased guns in Colorado and Texas.
These dealers received “Proceed” signals from
NICS due to USAF's and DOD's reporting failures.
Then, on September 5, 2017, Kelley used at least one of these
guns when he entered First Baptist Church and killed 26
people and injured 20 others.
are the victims and the victims' relatives. Joe and
Claryce Holcombe are the parents of decedent John Bryan
Holcombe, who was killed in the Sutherland Springs shooting
(18-555). Margarette Vidal was shot four times during the
shooting-Monica Shabbir, Robert Vidal, and Ramiro Vidal, Jr.
are Vidal's children (18-712). Charlene Uhl is the parent
of decedent Kaley Krueger (18-881). Gary Ramsey and Ronald
Ramsey, Jr. are the sons of decedent Therese Rodriguez
(18-944). Lisa McNulty is the mother and H.M. and J.M. are
the children of decedent Tara McNulty (18-949). Kati Wall,
Michael Johnson, Christopher Johnson, Dennis Johnson, Jr.,
Deanna Staton, and James Graham are the children of decedents
Sara Johnson and Dennis Johnson (18-951). Regina Amador is
the daughter and Jose Rodriguez and Guadalupe Rodriguez are
the parents of decedent Richard Rodriguez (18-1151). Farida
Brown was injured in the shooting (19-184). Christopher Ward
brings his claims on behalf of the estate of the deceased
JoAnn Ward and B.W., a minor, and on behalf of R.W., a minor
injured in the shooting (19-289). Kris Workman (19-506) was
shot eight times during the shooting. Plaintiffs' counsel
has indicated that additional suits will follow pending
exhaustion of administrative remedies.
Summary of Claims
filed their complaints individually, which for efficiency
were consolidated under the above-captioned case, as it was
first filed. The way the complaints depict the
Government's negligence varies slightly, but at bottom
they allege USAF and DOD were negligent in failing to submit
or submitting inaccurate or incomplete information related to
Kelley. Along the way, Plaintiffs allege these entities were
negligent in their training and supervision, processing and
recording of information, and other acts. Thus, Plaintiffs
bring claims for negligence per se based on
violation of the Brady Act, negligent undertaking, and
negligent training and supervision.
Standard for Dismissal Under Rule 12(b)(1)
Government moves the Court to dismiss this case for lack of
subject matter jurisdiction, pursuant to Federal Rule of
Civil Procedure Rule 12(b)(1). Dismissal is proper under Rule
12(b)(1) “when the court lacks the statutory or
constitutional power to adjudicate the case.” Home
Builders Ass'n of Miss., Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998). The party asserting
federal jurisdiction bears the burden of proving
jurisdiction. In re FEMA Trailer Formaldehyde Products
Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011). When
considering a motion to dismiss for lack of jurisdiction,
courts may consider evidence outside of the complaint and
dismiss on the bases of: “(1) the complaint alone; (2)
the complaint supplemented by undisputed facts in the record;
or (3) the complaint supplemented by undisputed facts plus
the court's resolution of disputed facts.”
Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.
1986). In determining whether subject-matter jurisdiction
exists, “[c]ourts must strictly construe all waivers of
the federal government's sovereign immunity, [resolving]
all ambiguities in favor of the sovereign.” Linkous
v. United States, 142 F.3d 271, 275 (5th Cir. 1998).
Federal Tort Claims Act
Federal Tort Claims Act, subject to several exceptions,
waives the sovereign immunity of the United States, making it
liable in tort ‘in the same manner and to the same
extent as a private individual under like circumstances,'
28 U.S.C. § 2674, for certain damages ‘caused by
the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment, under circumstances 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) (emphasis
added).” Johnson v. Sawyer, 47 F.3d 716, 727
(5th Cir. 1995). “While as a matter of abstract
linguistics the phrase ‘law of the place where the act
or omission occurred' might be thought to include
generally applicable federal law, it has long been settled
that it does not, and that ‘the liability of the United
States under the Act [FTCA] arises only when the law of the
state would impose it.'” Id. (quoting
Brown v. United States, 653 F.2d 196, 201 (5th Cir.
1981). Here, Texas provides the applicable state law.
The Government's Motion to Dismiss
Government presents several bases for dismissal. First, the
Government argues the United States cannot be held liable
here because Texas law would not impose liability on a
private person under analogous circumstances. Alternatively,
the Government argues that the FTCA's misrepresentation
exception strips jurisdiction here, and in any event the
Brady Act itself immunizes the United States against claims
related to the background check system's operation.
the Court considers first whether the misrepresentation
exception bars the claims and whether the Brady Act immunizes
the United States against them. If any of Plaintiffs'
legal theories clear these two hurdles, the Court will decide
whether Texas law recognizes liability for private persons
under analogous circumstances.
are several exceptions to the FTCA's waiver of sovereign
immunity. The exception relevant here retains sovereign
immunity as to “[a]ny claim arising out of . . .
misrepresentation [or] deceit.” 28 U.S.C. §
2680(h). This misrepresentation exception bars claims for
both negligent and intentional misrepresentation and applies
to both affirmative acts and omissions of material fact.
Metro. Life Ins. Co. v. Atkins, 225 F.3d 510, 512
(5th Cir. 2000).
Life Partners, the most recent case in which the
Fifth Circuit discusses the misrepresentation exception at
length, the court summarized the two leading Supreme Court
precedents as follows:
The Supreme Court has considered the scope of the
misrepresentation exception in two leading cases, United
States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6
L.Ed.2d 614 (1961), and [Block v. Neal, 460 U.S.
289, 103 S.Ct. 1089 (1983)]. In Neustadt, the Court
held that a suit alleging that the plaintiffs bought a home
for more than it was worth based on a negligent appraisal was
barred. 366 U.S. at 711, 81 S.Ct. 1294. The plaintiffs
alleged that the inaccurate appraisal resulted from a
negligent inspection, not from a misrepresentation.
Id. at 704-05, 81 S.Ct. 1294. The Court, however,
held that the damage, the payment of a purchase price in
excess of the home's fair market value, arose out of
negligent misrepresentation, even if the government also
negligently conducted the inspection. Id.; see
Ware v. United States, 626 F.2d 1278, 1283 (5th Cir.
1980). The plaintiffs would not have purchased the home, and
therefore suffered the harm, without the misrepresentation.
In Block, the Court distinguished Neustadt,
holding that a similar claim was not barred. 460 U.S. at 296,
103 S.Ct. 1089. There, after the plaintiff contracted for the
construction of a home, the Farmers Home Administration
(FmHA) agreed to supervise construction. Id. The
FmHA employee inspected the home three times, issuing a final
report indicating that the construction accorded with the
specifications approved by the FmHA. When the plaintiff
bought the home and later discovered extensive defects, she
sued the FmHA. Although the government argued that Neal's
damages were caused by the inspection reports, and therefore
her claim was barred as one for misrepresentation, the Court
held that the injury Neal alleged, a defective house, arose
from the FmHA's failure to oversee construction.
Id. at 297-98, 103 S.Ct. 1089. The plaintiff alleged
an injury she “would have suffered independently of
[her] reliance on the erroneous [representation].”
Id. at 296- 97, 103 S.Ct. 1089. The plaintiff's
reliance on the FmHA's misrepresentation did not cause
the defects in the home; rather, they were caused by the
FmHA's negligence in failing to oversee construction.
Life Partners, Inc. v. United States, 650 F.3d 1026,
1031 (5th Cir. 2011).
these cases, the Fifth Circuit derived a two-step process for
deciding whether the misrepresentation exceptions bars a
claim. Commercial Union Ins. Co. v. United States,
928 F.2d 176, 179 (5th Cir. 1991). Courts first ask
“whether ‘the chain of causation' from the
alleged negligence to the injury depends upon a
misrepresentation by a government agent.” Life
Partners, 650 F.3d at 1031. Relevant to this question is
whether “the focal point of the claim is negligence in
the communication of (or failure to communicate) information
or negligence in the performance of an operational task, with
misrepresentation being merely collateral to such
performance.” Atkins, 225 F.3d at 512. Because
courts “focus on the conduct upon which the
plaintiff's claim is based, ” Plaintiffs'
choice of pleading does not control. Life Partners,
650 F.3d at 1032 (quoting Truman v. United States,
26 F.3d 592, 592 (5th Cir. 1994)).
if the claim does depend on a misrepresentation, courts ask
“whether Congress has nonetheless waived sovereign
immunity independently of the FTCA.” Life
Partners, 650 F.3d at 1032 (quoting Commercial
Union, 928 F.2d at 179). Here, the only waiver of
immunity cited by Plaintiffs is the FTCA, so the Court's
inquiry is limited to the first step. “The FTCA's
misrepresentation exception is broad: it bars any claim
arising out of a misrepresentation-even if the conduct
underlying the claim may also constitute a tort not barred by
section 2680(h).” Life Partners, 650 F.3d at
1032. “[T]he line between what constitutes a
permissible negligence claim and a barred misrepresentation
claim has not been clearly delineated.” Saraw
Partnership v. United States, 67 F.3d 567, 570 (5th Cir.
Life Partners, the Fifth Circuit summarizes this