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Holcombe v. United States

United States District Court, W.D. Texas, San Antonio Division

May 23, 2019

JON HOLCOMBE ET AL., Plaintiffs,



         On this 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 Government's motion.

         1. Background

         These 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.

         Federal 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 failure.

         a. Devin Kelly

         Devin Kelley entered active duty as an airman with the United States Air Force (“USAF”) in January 2010.[1] 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.

         Between 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.

         On 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 custody.

         During 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.

         On June 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 criminal misconduct.

         A Court 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 conduct discharge.”

         b. Statutory Context

         Under 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.

         The 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).

         Federal 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).

         This 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.

         This 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.” Id.

         c. DOD's and USAF's History of Reporting Failure

         Despite these federal reporting obligations, as incorporated in and implemented by the DIBRS system, USAF and DOD have consistently mis- or under-reported required information.

         In 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.

         In the time period sampled, Air Force Security Forces failed to submit fingerprint cards and final disposition reports in 60 percent of cases.

         Then, 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, [2] 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.

         Finally, 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.”

         Specifically 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.

         d. Sutherland Springs Shooting

         Between 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.

         Plaintiffs 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.

         e. Summary of Claims

         Plaintiffs 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.

         2. Discussion

         a. Standard for Dismissal Under Rule 12(b)(1)

         The 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).

         b. Federal Tort Claims Act

         “The 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.

         c. The Government's Motion to Dismiss

         The 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.

         Here, 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.

         i. Misrepresentation Exception

         There 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).

         In 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).

         From 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)).

         Second, 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. 1995).

         In Life Partners, the Fifth Circuit summarizes this ...

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