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Sanders v. United States

United States Court of Appeals, Fourth Circuit

August 30, 2019

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. 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. JENNIFER PINCKNEY, Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, Defendant - Appellee, BRADY CENTER TO PREVENT GUN VIOLENCE, Amicus Supporting Appellant. 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, BRADY CENTER TO PREVENT GUN VIOLENCE, Amicus Supporting Appellant. 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. FELICIA SANDERS, Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, Defendant - Appellee, BRADY CENTER TO PREVENT GUN VIOLENCE, Amicus Supporting Appellant. 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. POLLY SHEPPARD, Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, Defendant - Appellee, BRADY CENTER TO PREVENT GUN VIOLENCE, Amicus Supporting Appellant. 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. LAURA MOORE, Personal Representative of the Estate of Ethel Lance, Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, Defendant - Appellee, BRADY CENTER TO PREVENT GUN VIOLENCE, Amicus Supporting Appellant. 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. SHALISA COLEMAN, as Personal Representative of the Estate of Sharonda Coleman-Singleton, Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, Defendant - Appellee, BRADY CENTER TO PREVENT GUN VIOLENCE, Amicus Supporting Appellant. ANTHONY THOMPSON, Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, Defendant - Appellee, BRADY CENTER TO PREVENT GUN VIOLENCE, Amicus Supporting Appellant. ARTHUR STEPHEN HURD, as Personal Representative of the Estate of Cynthia Graham Hurd, Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, Defendant - Appellee, BRADY CENTER TO PREVENT GUN VIOLENCE, Amicus Supporting Appellant. ARTHUR STEPHEN HURD, Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, Defendant - Appellee, BRADY CENTER TO PREVENT GUN VIOLENCE, Amicus Supporting Appellant. BETHANE MIDDLETON-BROWN, Personal Representative of the Estate of DePayne Middleton-Doctor, Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA, Defendant - Appellee, BRADY CENTER TO PREVENT GUN VIOLENCE, Amicus Supporting Appellant.

          Argued: May 7, 2019

          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:

          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

          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.

          Before GREGORY, Chief Judge, AGEE, and DIAZ, Circuit Judges.

          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 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 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 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 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, 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.

         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, 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 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.

         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. 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 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 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.

         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 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 ...


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