Pinckney v. United States of America, The

Filing 24

ORDER AND OPINION The Court GRANTS Plaintiffs' motion for jurisdictional discovery (Dkt. No. (16) in case 2:16-cv-02356-RMG (Lead case)) and DENIES Defendant's motion to dismiss (Dkt. No. (12) in case 2:16-cv-02356- RMG (Lead case)). Defendant's motion to dismiss is DENIED WITHOUT PREJUDICE as to the discretionary-function exception, the argument that Plaintiffs' claims are not actionable under South Carolina law under theories of negligent creation of risk and negligence per se, and is DENIED WITH PREJUDICE as to the misrepresentation exception. The Court ORDERS jurisdictional discovery to be completed by June 1, 2017. Defendant may renew its motion to dismiss regarding the discretionary-f unction exception, negligent creation of risk, and negligence per se after the close of jurisdictional discovery. Pursuant to the Court's consolidation order, the Clerk is directed to terminate all pending motions in related cases. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 3/23/2017. Associated Cases: 2:16-cv-02356-RMG et al, all pending motions termed.(sshe, )

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IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Felicia Sanders, individually and as legal
custodianfor K.M, a minor,

)
)

Civil Action No. 2: 16-2356-RMG

)

Plaintiff,

v.

)
)

ORDER AND OPINION

)
)

United States of America,
Defendant.

)
)
)

------------------------------)
This matter is before the Court on Defendant's motion to dismiss for lack of subject-matter
jurisdiction (Dkt. No. 12) and Plaintiffs motion for jurisdictional discovery (Dkt. No. 16). For
the reasons set forth below, the Court grants Plaintiffs motion for jurisdictional discovery.
Defendant's motion to dismiss is denied without prejudice except as provided below; Defendant
may renew its motion after the completion ofjurisdictional discovery.

I.

Background
On February 28, 2015, a City of Columbia police officer arrested Dylann Roof for

possession of Subox one, a controlled substance, without a prescription. (Dkt. No.1" 8-9.) That
arrest occurred in a portion ofthe City of Columbia that lies in Lexington County. (Dkt. No.1-I.)
Less than three months later, on April 11,2015, Roof attempted to purchase a Glock handgun from
Shooter's Choice, a federally licensed firearms dealer located in West Columbia, South Carolina.
(Dkt. No.1' 18.) Federal law prohibits federally licensed firearms dealers from selling firearms
to certain categories of persons, including, inter alia, unlawful users of controlled substances (18
u.s.C. § 922(d)(3» and persons under indictment for or convicted of a felony (18 U.S.C. §
922(d)(I». Federally licensed firearms dealers in South Carolina are required to use the National
Instant Criminal Background Check System ("NICS"), an FBI program created by the Brady
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Handgun Violence Prevention Act of 1993, to ensure firearms are sold legally. (Dkt. No. 1 ~~ 19­
23.) The NICS receives requests for background checks on potential buyers from firearms dealers,
searches databases it maintains for matching information, and provides one of three possible
responses to the dealer: (1) "Proceed," (2) "Delayed," or (3) "Denied." 28 C.F.R. § 2S.6(c)(l)(iv).
A "denied" response bars the proposed sale and a "Proceed" response permits it. A "Delayed"
response "indicates that the firearm transfer should not proceed pending receipt of a follow-up
'Proceed' response from the NICS or the expiration of three business days (exclusive of the day
on which the query is made), whichever occurs first." fd
As required by law, Shooter's Choice initiated a background check of Roof through the
NICS. (fd

~

24.) The Government admits that, because of Roofs recent arrest for unlawful

possession of a controlled substance (erroneously listed in the NICS as alelany drug arrest (Dkt.
No. 1 ~ 17)), NICS should have issued a "Denied" response to Shooter's Choice, preventing the
sale ofa gun to Roof. (See Dkt. No. 1-1 (FBI Director James Corney confessing error).) Instead,
the FBI, baffled by the fact that a city might incorporate land in multiple counties, failed to prevent
the sale. (See id)l
Specifically, the assigned NICS examiner noted Roof was listed as having been arrested
on a felony drug charge, but for some reason, the Lexington County Sheriffs office was listed as
the arresting agency, not the City of Columbia Police Department. (fd) The examiner contacted
the Lexington County Sheriffs Office and she was told to check with the City of Columbia Police

1 Municipalities commonly span multiple counties and lists of multicounty municipalities are
readily available. See, e.g., List of u.s. municipalities in multiple counties, Wikipedia,
http://en.wikipedia.orgiwiki/List_oCU.S._municipalities_in_multiple_counties (listing 628
examples of multicounty municipalities, including Columbia, SC (Lexington County and Richland
County), Charleston, SC (Charleston County and Berkeley County), and North Charleston, SC
(Charleston County and Dorchester County)).

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Department. (Id) She never did that. Instead, she decided to contact the City of West Columbia
Police Department, which of course had no record of Roof s arrest. (Id) At that point, the FBI
apparently gave up its attempt to learn about Roofs purportedly felonious drug arrest, and it took
no action to prevent Roof from being allowed to purchase a handgun. (See id; Dkt. No. 12-1 at

22); see also Trial Transcript 670:21-672:1, United States v. Roof, 15-472-RMG (D.S.C. Dec. 12,
2016).
The FBI cast aside the case, leaving it in a "Delayed" status, and so, on April 16, 2015,
Roof was permitted to purchase his Glock. (Dkt. No.1-I.) Two months later, on June 17,2015,
he used it to murder nine parishioners, and to attempt to murder three others, in an attack on Mother
Emanuel AME Church in Charleston, South Carolina. (Dkt. No. 1 ~~ 34-35.) After the attack,
the FBI researched Roofs eligibility to purchase a firearm with more ardor (see Dkt. No. 1-1) and,
on June 29, 2015, the NICS instructed Shooter's Choice not to sell the Glock to Roof. Trial
Transcript 681: 19-685 :5, United States v. Roof, 15-472-RMG (D. S.C. Dec. 12, 2016). Roof was
subsequently convicted on many capital charges and sentenced to death. Judgment, United States
v. Roof, 15-472-RMG (D.S.C. Jan. 23, 2015). Survivors of the attack and family of the slain have
brought suits alleging the failure to refuse permission for Roof to purchase the murder weapon was
a violation of non-discretionary duties imposed by the Brady Handgun Violence Prevention Act
and associated regulations, actionable as negligence under the Federal Tort Claims Act ("'FTCA").
(Dkt. No. 1 ~ 32.)
On February 9, 2017, the Court consolidated the actions for pretrial purposes, with this
action designated as the master docket. (Dkt. No. 22.) The Government moves to dismiss for lack

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of subject-matter jurisdiction, arguing that the FTC A bars Plaintiffs2 claims under the
discretionary-function and misrepresentation exceptions and that Plaintiffs' claims are not
actionable under South Carolina law. (Dkt. No. 12.) Plaintiffs separately move for jurisdictional
discovery. (Dkt. No. 16.)

II.

Legal Standard
A motion to dismiss for lack of subject-matter jurisdiction filed pursuant to Rule 12(b)(1)

of the Federal Rules of Civil Procedure challenges the jurisdiction of a court to adjudicate the
matter before it. Arbaugh v. Y & H Corp., 546 U.S. 500,,514 (2006). A challenge to subjectmatter jurisdiction may contend either 1) that the complaint fails to allege facts sufficient to
establish subject matter jurisdiction or 2) "that the jurisdictional allegations of the complaint [are]
not true." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where the sufficiency of the
jurisdictional allegations in the complaint is challenged facially, "the facts alleged in the complaint
are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke
subject matter jurisdiction." Kerns v. United States, 585 F.3d 187,192 (2009). If, however the
defendant contends "that the jurisdictional allegations ofthe complaint [are] not true," the plaintiff
bears the burden to prove facts establishing jurisdiction and the district court may "decide disputed
issues of fact." Id. In that case, because the plaintiffs allegations are not presumed true, "the
court should resolve the relevant factual disputes only after appropriate discovery."

24th

Senatorial Dist. Republican Comm. v, Alcorn, 820 F.3d 624, 629 (4th Cir. 2016). And where "the

jurisdictional facts and the facts central to a tort claim are inextricably intertwined," so that a
challenge to the truth of the jurisdictional facts indirectly challenges the plaintiffs claims on the

2 The

Court herein uses "Plaintiffs" to refer collectively to all Plaintiffs in the consolidated actions.
Citations refer to filing in the above-captioned lead case, Sanders v. United States, Civ. No.2: 16­
2356-RMG

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merits, "the trial court should ordinarily assume jurisdiction and proceed to the intertwined merits
issues." Kerns, 585 F.3 at 193.

III.

Discussion
The United States is immune from suit without the consent of Congress. Block v. North

Dakota ex rei. Bd. of Un/v. & Sch. Lands, 461 U.S. 273, 287 (1983). The FTCA authorizes
lawsuits against the United States for wrongful acts or omissions of federal employees acting
within the scope of their office in circumstances where a private person would be liable for similar
claims in the jurisdiction where the claim arose. 28 U .S.C. § 1346(b). Under the FTCA, the United
States cannot be held liable for actions that fall within its discretionary function, an exception
based on the premise that the judiciary should not "second guess" policy choices of the Executive
Branch through private litigation. 28 U.S.C. § 2680(a); Berkovitz ex rei. Berkovitz v. United States,
486 U.S. 531, 536-37 (1988). Nor may the United States be held liable for claims arising from
misrepresentation-whether negligent or intentional. 28 U.S.C. § 2680(h); Block v. Neal, 460 U.S.
289, 296 (1983). And governmental negligence in the enforcement of federal regulations is
actionable under the FTC A only if "the alleged breach of duty is tortious under state law," or if
"the Government had breached a duty imposed by federal law that is similar or analogous to a duty
imposed by state law." Fla. Auto Auction a/Orlando, Inc. v. United States, 74 F.3d 498,502 (4th
Cir. 1996) (internal quotation marks and citation omitted).
The Government moves to dismiss, arguing each of those restrictions-the discretionary­
function exception, the misrepresentation exception, and the lack of a duty to Plaintiffs under state
law--deprive the Court lacks subject-matter jurisdiction over Plaintiffs' claims. For the reasons
set forth below, the Court orders jurisdictional discovery regarding the applicability of the
discretionary-function exception, to be completed by June 1, 2017, and denies the motion to
dismiss as to the discretionary-function exception without prejudice to the Government's ability
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to renew its motion after discovery. The Court also denies the motion to dismiss without prejudice
regarding a lack of a duty to Plaintiffs under theories of negligent creation of risk and negligence
per se.

The Court denies with prejudice the Government's motion to dismiss as to the

misrepresentation exception.
A.

Discretionary-Function Exception

A claim falls within the discretionary-function exception if two elements are satisfied.
First, the challenged conduct must be the product of a discretionary decision in which the
governmental conduct was a matter ofjudgment or choice. Berkovitz, 486 U.S. at 536. However,
if law or policy mandated a particular course of action, the discretionary-function exception does
not apply to a deviation from the mandated course of action. Id. at 536-37 ("[T]he discretionary
function exception will not apply when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow. In this event, the employee has no rightful
option but to adhere to the directive."). Second, the decision must be "based on considerations of
public policy." Id. at 537. This limits the discretionary-function exception to the kinds of
judgments the exception "was designed to shield." Id. at 536. When the Government asserts that
a claim is barred by the discretionary-function exception, the plaintiff bears the burden to show
the discretionary-function exception does not apply. Welch v. United States, 409 F.3d 646, 651
(4th Cir. 2005).
The Government argues the examiner issued a "Delayed" response to Shooter's Choice's
inquiry about Roofs proposed gun purchase because that response "was the only permitted
response under the circumstances." (Dkt. No. 12-1 at 22.) According to the Government, that fact
places the decision within the discretionary-function exception because where "'a regulation
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
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promulgation of the regulation. '" (Id. at 22-23 (quoting United States v. Gaubert, 499 U.S. 315,
324 (1991».) Plaintiffs agree that federal regulations mandated the examiner's response, but they
of course argue the mandated response was "Denied."
Plaintiffs also argue the Government was negligent in maintaining the integrity ofthe NICS
databases, in violation of certain mandatory regulations. (See Dkt. No. 15 at 20-21.) Plaintiffs'
statement that the FBI "has no discretion with regards to the maintenance of its databases" seems
rather unlikely. (Dkt. No. 15 at 20.) Likewise, the Government's argument that the creation,
maintenance, indexing, and management of databases is discretionary per se also seems
overreaching. (Dkt. No. 12-1 at 23-25.) But the Court must adjudicate Plaintiffs' claims, not
speculate about them. The legal standard is whether the challenged conduct was the product of a
discretionary decision in which the governmental conduct was a matter of judgment based on
considerations ofpublic policy. Whether the challenged database-maintenance conduct meets that
standard is a question of fact to be decided on careful review of a complete record.
The Government's discretionary-function arguments are challenges to the truth of
allegations establishing subject-matter jurisdiction. Whether the examiner should have, or could
have, acted differently under the "circumstances" is a disputed jurisdictional fact, as is the
challenge to the FBI's database-maintenance conduct. The Court will not decide disputed facts
without a complete record developed through appropriate discovery. See 24th Senatorial Dist.

Republican Comm., 820 F.3d at 629.

The Court therefore grants Plaintiffs' motion for

jurisdictional discovery3 and orders discovery regarding (1) the background check on Dylann Roof

3 Plaintiffs move for jurisdictional discovery only regarding the discretionary-function exception.
(Dkt. No. 16-1 at 3.) In opposition, the Government argues (1) the need for discovery is mooted
by independent bases for dismissal, (2) discovery is unnecessary because some other cases have
been dismissed under the discretionary-function exception without discovery, and (3) discovery is
futile because "the decision as to whether Roof was disqualified by federal law from receiving a

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initiated in April 2015, and (2) the policies, protocols, and procedures governing maintenance of
data used for that background check. Jurisdictional discovery shall be completed by June 1,2017.
The Government may renew its discretionary-function exception arguments after discovery.
B.

Misrepresentation Exception
The FTCA's waiver of immunity "shall not apply to ... [a]ny claim arising out of assault,

battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h) (emphasis
added). The exception for misrepresentation encompasses claims within "the traditional and
commonly understood legal definition of the tort of 'negligent misrepresentation,'" in addition to
claims for intentional misrepresentation. United States v. Neustadt, 366 U.S. 696, 702 (1961).
The "essence of an action for misrepresentation, whether negligent or intentional, is the
communication of misinformation on which the recipient relies." Block, 460 U.S. at 289. The
exception applies where damages are caused by the Government's alleged breach ofa "duty to use
due care in obtaining and communicating information upon which that party may reasonably be
expected to rely," rather than the breach of any separate, distinct statutory duty. Id. at 708-09; see

also Chang-Williams v. United States, 965 F. Supp. 2d 673, 682-86 (D. Md. 2013). It does not
bar negligence claims where the duty allegedly breached is distinct from the duty to use due care
in communicating information." Block, 460 U.S. at 297.

firearm ultimately would have entailed the exercise of policy judgment." (See Dkt. No. 25.) The
Government's other asserted bases for dismissal do not moot the need for discovery because the
Court denies the motion to dismiss regarding those arguments. The Government's other two
arguments are entirely without merit. The conduct of the FBI's investigation of Roof may or may
not fall within the discretionary-function exception, but Roof was disqualified from purchasing a
firearm by mandatory federal law, not a discretionary executive policy judgment.

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The Government argues the misrepresentation exception bars Plaintiff's claims because
"the gravamen of plaintiff's claims is the government's failure to communicate a denial to
Shooter's Choice." (Dkt. No. 12-1 at 28.) The Court finds no merit in that argument. The
gravamen of Plaintiffs' claims is not the failure to communicate information (nor is it the
communication of misinformation).

The information communicated to Shooter's Choice-a

response of "Delayed"-was factually accurate, as far as it went. The gravamen of the complaint
is the Government's failure to act to prevent a violation of federal law, as required by allegedly
mandatory procedures. Plaintiffs allege breach of a duty "distinct from any duty to use due care
in communicating information." Cj Block, 460 U.S. at 297. What is alleged is negligence in the
conduct of Roof's background check, not a failure of communication with Shooter's Choice.
"Delayed" unquestionably was an accurate description of the Government's background
investigation of Roof, but Plaintiffs allege that it should not have been an accurate description of
the Government's investigation and that, but for actionable negligence, it would not have been.
The Court therefore denies the Government's motion to dismiss as to the misrepresentation
exception.

C.

Validity of Plaintiffs' Negligence Claims

The FTCA waives the United States' immunity from claims arising from wrongful acts or
omissions of federal employees acting within the scope of their office in circumstances where a
private person would be liable for similar claims in the jurisdiction where the claim arose. 28
U.S.c. § 1346(b). Immunity from negligence claims is waived only if"the alleged breach of duty
is tortious under state law," or if "the Government had breached a duty imposed by federal law
that is similar or analogous to a duty imposed by state law." Fla. Auto Auction o/Orlando, Inc.,
74 F.3d at 502. When the acts at issue involve the performance of a uniquely governmental

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function, the FTC A waives immunity where "a private person would be responsible for similar
negligence." Id (internal quotation marks omitted).
South Carolina's substantive law of negligence governs Plaintiffs' negligence claims. See
United States v. St. Louis Univ., 336 F.3d 294,300 (4th Cir. 2003).4 In South Carolina, plaintiffs

must show (1) a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty by a
negligent act or omission, (3) damages suffered by Plaintiff, (4) which actually and proximately
resulted from the breach. Madison ex rei. Bryant v. Babcock Ctr., Inc., 638 S.E.2d 650, 656 (S.C.
2006). South Carolina law imposes no civil obligation to conduct background checks before
selling firearms and generally imposes no duty to protect others from a third party's criminal acts,
so the Government argues it had no duty under South Carolina law to protect Plaintiffs "from any
conceivable criminal act that Mr. Roof might commit" by blocking his attempt to purchase a
firearm. (Dkt. No. 12¥} at 30--31 (citing Cramer v. Baleor Prop. Mgmt., Inc., 441 S.E.2d 317,
318-19 (S.C. 1994)).)
In response, Plaintiffs argue three theories: the Government voluntarily undertook a duty
to protect Plaintiffs from Roof, the Government negligently created the risk that Roofwould injure
Plaintiffs, and negligence per se. For the reasons described below, the Court finds Plaintiffs'
voluntarily undertaken duty theory to be implausible on its face, but finds that Plaintiffs may have
plausibly pleaded negligent creation of risk and negligence per se under South Carolina law.

4 Both parties argue the application of South Carolina law. The FTCA requires liability to be
determined "in accordance with the law of the place where the act or omission occurred." 28
U.S.C. § 1346(b)(I). The "law of the place" refers to the law, including choice-of-Iaw principles,
of the state where the negligent act or omission occurred. St. Louis Univ., 336 FJd at 300. The
negligence alleged in this case arguably occurred in West Virginia. West Virginia adopts the
traditional rule that the substantive rights between parties are determined by the law of the place
of injury-here, South Carolina. McKinney v. Fairchild Int'l, Inc., 487 S.E.2d 913, 922 (W. Va.
1997). South Carolina adopts the same rule. Lister v. NationsBank ofDel., NA., 494 S.E.2d 449,
454 (S.C. Ct. App. 1997).

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While persons owe no general duty to protect others from third parties, South Carolina law
holds persons liable when they negligently create a foreseeable risk of harm from a third party.
Greenville Mem 'I Auditorium v. Martin, 391 S.E.2d 546, 548 (S.C. 1990). In South Carolina,

[t]he law is well settled that in order to establish liability it is not necessary that the
person charged with negligence should have contemplated the particular event
which occurred. It is sufficient that he should have foreseen that his negligence
would probably cause injury to something or someone. He may be held liable for
anything which appears to have been a natural and probable consequence of his
negligence. If the actor's conduct is a substantial factor in the harm to another, the
fact that he neither foresaw nor should have foreseen the extent of harm or the
manner in which it occurred does not negative his liability.
Childers v. Gas Lines, Inc., 149 S.E.2d 761, 765 (S.C. 1966) (citations omitted).

Plaintiffs allege, in effect, that negligently failing to prevent Roof from purchasing his
Glock was a substantial factor in the harm suffered by the victims of Roofs attack on Mother
Emanuel using that same Glock. That allegation appears, at first glance, to be sufficiently plausible
at least to survive a motion to dismiss. See Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473,484
(4th Cir. 2015) ("To survive a motion to dismiss, a plaintiff need not demonstrate that her right to
relief is probable or that alternative explanations are less likely; rather, she must merely advance
her claim 'across the line from conceivable to plausible.' If her explanation is plausible, her
complaint survives ... regardless of whether there is a more plausible alternative explanation.").
The Court therefore denies the motion to dismiss. The parties' briefing on negligent creation of
risk, however, is inadequate. (See, e.g., Dkt No. 15 at 29 (Plaintiffs providing one paragraph on
the issue, which discusses one case); Dkt. Nos. 12 & 24 (Government not addressing issue).) The
Court therefore denies the motion to dismiss without prejudice to the Government's ability to
renew its motion with regard to negligent creation of risk, after jurisdictional discovery.
Another exception to the general rule of no general duty to protect others from third parties
arises when a defendant voluntarily assumes a duty to do so. Crowley v. Spivey, 329 S.E.2d 774,

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780 (S.C. Ct. App. 1985) ("[O]ne who assumes to act, even though under no obligation to do so,
may become subject to the duty to act with due care."). Plaintiffs argue the FBI voluntarily
assumed the duty to screen prospective gun purchasers and so the Government therefore can be
held liable for negligence in background checks on prospective gun purchasers. (Dkt. No. 15 at
33-34.) But Plaintiffs' argument is implausible on its face. The FBI performs background checks
for firearms sales because Congress requires the FBI to do so. See Brady Handgun Violence
Prevention Act of 1993 § 103, Pub. L. 103-159, 107 Stat. 1536, 1541-43 (1993). The FBI did not
voluntarily decide to perform background checks any more than the Bureau of Prisons voluntarily
decided to incarcerate criminals sentenced to prison.
That the FBI did not volunteer to conduct background checks for gun purchases, but instead
is required by law to do so, suggests another theory of liability. Under South Carolina law, a
statute may create a duty of care if the plaintiff is in the class of persons the statute intends to
protect and the plaintiffs injury is in the class ofharms the statute intends to prevent. See Rayfield
v. S.C Dep't ojeorrs., 374 S.E.2d 910, 913-15 (S.C. Ct. App. 1988). In such cases, violation of
the statute satisfies the breach of duty element in a negligence action, and negligence per se is
established when the plaintiff shows (1) that the defendant breached a standard of conduct
established by statute and (2) that the breach proximately caused damage to the plaintiff. Id.
Further, under South Carolina law violation of a regulation may also constitute negligence per se
if the regulation has the force of law. Norton v. Opening Break ojAiken, Inc., 443 S.E.2d 406,
408 (S.C. Ct. App. 1994) (collecting cases).
Plaintiffs allege the Government breached a standard of conduct imposed by federal
statutes and regulations, including 18 U.S.C. § 922 and 28 C.F.R. pt. 25. (Dkt. No. 1 ~~ 53-61.)
Moreover, it appears at least plausible that those federal statutes and regulations prohibiting certain

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persons from obtaining firearms are intended to protect citizens from being shot by those
proscribed persons.
The Government, however, argues South Carolina's "public duty rule" prevents Plaintiffs
from asserting negligence per se claims. (Dkt. No. 24 at 15.) "The 'public duty' rule presumes
statutes which create or define the duties of a public office have the essential purpose of providing
for the structure and operation of government or for securing the general welfare and safety of the
public. Such statutes create no duty of care towards individual members of the general public."

Summers v. Harrison Const., 381 S.E.2d 493, 496 (S.c. Ct. App. 1989). Statutes create a duty of
care from which a negligence action against public agencies or officers can arise only if

(1) an essential purpose of the statute is to protect against a particular kind of harm;
(2) the statute, either directly or indirectly, imposes on a specific public officer a
duty to guard against or not cause that harm; (3) the class of persons the statute
intends to protect is identifiable before the fact; (4) the plaintiff is a person within
the protected class; (5) the public officer knows or has reason to know of the
likelihood of harm to members of the class if he fails to do his duty; and (6) the
officer is given sufficient authority to act in the circumstances or he undertakes to
act in the exercise of his office.

Id.
Nonetheless, because Plaintiffs plausibly allege the Government breached a standard of
conduct imposed by federal statutes and regulations, which are plausibly intended to protect
Plaintiffs from the type of harms they suffered, the Court denies the Government's motion to
dismiss. The parties, however, have not briefed the issues ofwhether Plaintiffs are within the class
of persons those statutes and regulations intend to protect, or whether their injuries are within the
class of harms those statutes and regulations intend to prevent. Nor have they briefed the public
duty rule, beyond a single paragraph at the end of the Government's reply brief. (Dkt. No. 25 at
15.) The Court therefore denies the motion to dismiss without prejudice to the Government's
ability to renew its motion with regard to negligence per se, after jurisdictional discovery.

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Conclusion
For the foregoing reasons, the Court GRANTS Plaintiffs motion for jurisdictional

discovery (Dkt. No. 16) and DENIES Defendant's motion to dismiss (Dkt. No. 12). Defendant's
motion to dismiss is DENIED WITHOUT PREJUDICE as to the discretionary-function
exception, the argument that Plaintiffs' claims are not actionable under South Carolina law under
theories of negligent creation ofrisk and negligence per se, and is DENIED WITH PREJUDICE
as to the misrepresentation exception.
completed by June 1, 2017.

The Court ORDERS jurisdictional discovery to be

Defendant may renew its motion to dismiss regarding the

discretionary-function exception, negligent creation of risk, and negligence per se after the close
of jurisdictional discovery. Pursuant to the Court's consolidation order, the Clerk is directed to
terminate all pending motions in related cases.
AND IT IS SO ORDERED.

Richard M
G gel
United States Dist ict Court Judge
March ~, 2017
Charleston, South Carolina

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