Holcombe et al v. United States of America

Filing 318

ORDER DENYING 308 Motion for Partial Summary Judgment; GRANTING IN PART AND DENYING IN PART 249 Motion for Partial Summary Judgment; GRANTING IN PART AND DENYING IN PART 256 Motion for Summary Judgment. Signed by Judge Xavier Rodriguez. (bc)

Case 5:18-cv-00555-XR Document 318 Filed 01/06/21 Page 1 of 58

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOE HOLCOMBE ET AL.,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

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Civil Action No. SA-18-CV-555-XR
Consolidated Cases

ORDER
On this date, the Court considered (1) Plaintiffs’ consolidated motion for partial summary
judgment (docket no. 249), the Government’s response (docket no. 265), and Plaintiffs’ reply
(docket no. 275); (2) a separate motion for partial summary judgment filed by certain Plaintiffs
represented by Brett Reynolds (the “Reynolds Plaintiffs”) 1 (docket no. 308), the Government’s
response (docket no. 314), and the Reynolds Plaintiffs’ reply (docket no. 316); and (3) the
Government’s motion for summary judgment (docket no. 256), Plaintiffs’ response (docket no.
264), and the Government’s reply (docket no. 273). Although the parties filed separate motions
for summary judgment, there is significant overlap among the arguments made in the motions and
accompanying responses. Accordingly, the Court will address the motions together. After careful
consideration, the Court issues the following order.

1

Despite the consolidation of these cases, the Court permitted the Reynolds Plaintiffs to file a separate
motion for summary judgment to address a potential conflict of interest with the remaining Plaintiffs, who
are pursuing a related action in state court. The Reynolds Plaintiffs include Kris Workman, Colbey
Workman, Kyle Workman, Morgan Harris, David Colbath as next friend of Eevee Workman, Kris
Workman and Colbey Workman as next friend of Eevee Workman, David Colbath, individually and as
next friend of Olivia Colbath, and Kip Workman and Julie Workman.

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BACKGROUND
These consolidated cases stem from the mass shooting at the First Baptist Church in
Sutherland Springs, Texas on November 5, 2017. The shooter, Devin Patrick Kelley (“Kelley”),
entered the church and opened fire, killing 26 people and wounding 22 more. After fleeing the
scene, Kelley later died from a self-inflicted gunshot wound. Plaintiffs are survivors of the
shooting and relatives of those injured or killed. They seek recovery against Defendant United
States (“the Government”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),
2671–2680. The thrust of these lawsuits is that Kelley should not have been able to purchase the
firearms he used in the shooting, but negligent failures by the Government to collect, handle, and
report required information about Kelley allowed him to do so.
Kelly committed the shooting using firearms he purchased from federal firearms licensees
(“FFLs”) between December 2014 and October 2017. In four separate firearms purchases, Kelley
completed the required purchasing form—ATF Form 4473—certifying that he was eligible to
purchase the firearm under federal law, and the retailer ran the mandatory background check
through the National Instant Criminal Background Check System (“NICS”) administered by the
FBI. In each instance, the response from the NICS was that the retailer could proceed with the
sale. Kelley should not have cleared the background check, however, because he had been
convicted of a disqualifying offense in November 2012 while he was serving in the United States
Air Force (“USAF”) at Holloman Air Force Base (“HAFB”) in New Mexico. Specifically, Kelley
was convicted by General Court-Marial of assaulting his then-wife, Tessa Kelley, and his stepson.
The USAF had an obligation—and multiple opportunities—to submit Kelley’s fingerprints and
criminal history to the FBI’s Criminal Justice Information Services (“CJIS”) Division for inclusion
in its databases. Its failure to do so is the basis for this action.

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I. Investigation and Conviction 2
On June 8, 2011, Tessa Kelley took her infant son to the emergency room because he was
vomiting. The pediatrician who examined him noticed facial bruising, and, after testing revealed
a fractured clavicle and subdural hemorrhage, reported the injuries as suspected child abuse. The
next day, the Air Force Office of Special Investigations (“AFOSI”) Detachment 225 3 initiated an
investigation of Devin Patrick Kelley for assault on a child. After interviewing Kelley, special
agents took two sets of fingerprints and placed them in his investigative file.
On February 17, 2012, while the AFOSI investigation for child abuse was still ongoing,
the 49th Security Forces Squadron 4 opened an investigation of Kelley for assault after Tessa Kelley
reported that he had been physically and emotionally abusing her since July 2011. Security Forces
attempted to interview Kelley, but he requested legal counsel and refused to make a statement.
There is no evidence that Security Forces collected Kelley’s fingerprints during the interview.
Citing anger and depression because of his wife’s accusations, Kelley was voluntarily admitted to
Peak Behavioral Health Services (the “Peak”), where he remained from February 23, 2012 until
March 8, 2012.
Later that spring, Kelley admitted to Tessa Kelley that he had abused her son and caused
the injuries that led to his hospitalization in 2011. He eventually filmed a video confession, which
Tessa Kelley provided to the USAF on April 29, 2012. The next day, Kelley voluntarily entered
in-patient treatment at the Peak for the second time.

2

These facts are undisputed, unless otherwise noted.

3

An AFOSI Detachment is a geographically separated field office under the operational control of a
regional headquarters. In the case of AFOSI Detachment 225, the regional headquarters was the 2nd Field
Investigations Region, located at Langley AFB, Virginia.

4

Security Forces and AFOSI perform different functions within the USAF. Security Forces primarily serve
a security and law enforcement role on USAF installations, while AFOSI is responsible for conducting
major criminal and counterintelligence investigations for the USAF.

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On June 7, 2012, Kelley jumped a fence and escaped from the facility. He was apprehended
by local law enforcement personnel, who returned him to the Peak. The next day, he was
discharged from the Peak and entered pretrial confinement. In his order approving pretrial
confinement, Kelley’s Commander noted that, while he was at the Peak, Kelley had attempted to
buy firearms and tactical gear online and have these items shipped to San Antonio, Texas. Kelley
threatened that if he were picked up by Security Forces, he would “go for their guns.” The
Commander concluded that Kelley was “dangerous and likely to harm someone if released.”
On November 7, 2012, after entering a guilty plea, Kelley was convicted in General CourtMartial proceedings of assault on his wife and stepson. He was sentenced to 12 months of
imprisonment, a bad-conduct discharge, and reduction in rank to airman basic. He was confined
at HAFB, and later transferred to Naval Consolidated Brig, Miramar, California.
On December 14, 2012, AFOSI Detachment 225 received the Report of Result of Trial,
which documented the result of the General Court-Martial. On the same day, the AFOSI
Detachment 225 special agent in charge (“SAIC”) certified on the closing checklist in the
Investigation and Information Management System (“12MS”) electronic file that Kelley’s
fingerprints and final disposition information had been submitted to the FBI’s CJIS Division,
though they had not. This permitted the SAIC to close the investigation.
After his release from confinement on March 31, 2013, Kelley was permanently barred
from HAFB at the request of Commander Robert Bearden, who cited Kelley’s threats to kill
leadership, his escape from the Peak, and Internet searches for body armor and guerrilla tactics as
evidence that he was a security threat. The appeals court upheld Kelley’s conviction, and he was
officially separated from the USAF with a bad conduct discharge on May 8, 2014.

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II. Statutory and Regulatory Context
The Government’s FBI reporting obligations arise from the Brady Handgun Violence
Prevention Act of 1993, 34 U.S.C. § 40901 (the “Brady Act”), its implementing regulations, and
instructions promulgated by the Department of Defense (“DoD”) and the USAF. The Brady Act
requires federal agencies, including the DoD and USAF, to report disqualifying information to
NICS “not less than quarterly.” 34 U.S.C. § 40901(e)(1)(C). Disqualifying information includes
“any record of any person demonstrating that the person falls within one of the categories” of
persons prohibited from purchasing firearms described in Section 922(g) of the Gun Control Act
of 1968. 18 U.S.C. § 922(g). Section 922(g), in turn, prohibits the possession or purchase of
firearms by certain categories of people, including those who have been:
(1) convicted in any court of a crime punishable by imprisonment for a term
exceeding one year;
(4) adjudicated as mental defectives or who have been committed to a mental
institution;
(6) discharged from the Armed Forces under dishonorable conditions; or
(9) convicted in any court of a misdemeanor crime of domestic violence
18 U.S.C. § 922(g)(1), (4), (6), (9). The DoD and the USAF have issued a series of regulations and
directives to carry out their reporting obligations under the Brady Act.
DoD Instruction (“DoDI”) 5505.11, entitled “Fingerprint Card and Final Disposition
Report Submission Requirements,” outlines the procedures for submitting fingerprint cards and
final disposition reports to the FBI’s CJIS Division. Docket no. 250, Ex. U-6 at 16−28. The AFOSI
and Security Forces have, in turn, issued their own instructions and policies for submitting
fingerprints and criminal history information to the FBI based on the requirements set forth in
DoDI 5505.11. See, e.g., AFOSI Manual 71-121 (docket no. 250, Ex. U-2); Air Force Instruction

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(“AFI”) 31-206 (id., Ex. U-3 at 4−16); and AFI 31-205 (id., Ex. U-3 at 17−20). Generally, DoDI
5505.11 requires law enforcement organizations (“LEOs”), including AFOSI and Security Forces,
to submit fingerprints after they decide that probable cause exists for the commission of certain
enumerated offenses, including assault. Id., Ex. U-6 at 25. Then, after the conclusion of military
criminal proceedings, LEOs must submit the final disposition report to the FBI within fifteen days.
See id. Confinement facility personnel are also required to collect and submit fingerprints. See id.,
Ex. U-3 at 18−20.
The information sent to the FBI gets entered into one of three databases: (1) the Interstate
Identification Index (the “III” or “triple-I”), which accesses criminal history records through
fingerprint data; (2) the National Crime Information Center (“NCIC”), which contains information
on wanted persons, protection orders, and other persons identified as relevant to NICS searches;
and (3) the NICS Indices, which were created for the purpose of performing a NICS background
check and contain records provided by local, state, and federal agencies concerning prohibited
persons under federal law that may not be appropriate for submission to the NCIC or the III. See
Nat’l Rifle Ass’n v. Reno, 216 F.3d 122, 125 (D.C. Cir. 2000); 28 C.F.R. § 25.6(c)(1)(iii); docket
no. 250, U-12 at 16 n.52.
When an FFL requests a background check, the NICS automatically queries the three FBI
CJIS Division databases and, based on the search results, issues one of three responses: “Proceed”
(the go-ahead signal), “Denied” (stopping the sale), or “Delayed” (additional information
required). 28 C.F.R. § 25.6(c)(iv)(A)-(C). A delayed transaction indicates that additional research
is required to determine whether the prospective buyer is eligible. Id. A felony conviction results
in an instant denial. Docket no. 249, Ex. C, Dep. Del Greco, at 57:11–15.

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III. Procedural History
Plaintiffs filed numerous separate complaints, which for efficiency were consolidated
under the above-captioned case, as it was first filed. The Government moved to dismiss on multiple
grounds, including that the United States was shielded from liability by Section 922(t)(6) of the
Brady Act, and that Plaintiffs had not alleged viable state law causes of action. Docket no. 28. The
Court agreed that Plaintiffs could not proceed on a negligence per se theory but rejected all other
grounds for dismissal. Docket no. 59 at 29−33. Both parties now move for summary judgment on
Plaintiffs’ surviving claims of negligent undertaking, negligent supervision, and negligent training.
DISCUSSION
I.

Summary Judgment Standard
The Court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R.
CIV. P. 56. To establish that there is no genuine issue as to any material fact, the movant must
either submit evidence that negates the existence of some material element of the non-moving
party’s claim or defense, or, if the crucial issue is one for which the non-moving party will bear
the burden of proof at trial, merely point out that the evidence in the record is insufficient to support
an essential element of the non-movant’s claim or defense. Little v. Liquid Air Corp., 952 F.2d
841, 847 (5th Cir. 1992), on reh’g en banc, 37 F.3d 1069 (5th Cir. 1994) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). Once the movant carries its initial burden, the burden shifts to
the nonmovant to show that summary judgment is inappropriate. See Fields v. City of S. Hous.,
922 F.2d 1183, 1187 (5th Cir. 1991). Any “[u]nsubstantiated assertions, improbable inferences,
and unsupported speculation are not sufficient to defeat a motion for summary judgment,” Brown
v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003), and neither will “only a scintilla of evidence”

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meet the nonmovant’s burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc). Rather, the nonmovant must “set forth specific facts showing the existence of a ‘genuine’
issue concerning every essential component of its case.” Morris v. Covan World Wide Moving,
Inc., 144 F.3d 377, 380 (5th Cir. 1998). The Court will not assume “in the absence of any proof .
. . that the nonmoving party could or would prove the necessary facts” and will grant summary
judgment “in any case where critical evidence is so weak or tenuous on an essential fact that it
could not support a judgment in favor of the nonmovant.” Little, 37 F.3d at 1075.
For a court to conclude that there are no genuine issues of material fact, the court must be
satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words,
that the evidence favoring the nonmovant is insufficient to enable a reasonable [trier of fact] to
return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In making this determination, the court should review all the evidence in the record, giving
credence to the evidence favoring the nonmovant as well as the “evidence supporting the moving
party that is uncontradicted and unimpeached, at least to the extent that evidence comes from
disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).
The Court “may not make credibility determinations or weigh the evidence” in ruling on a motion
for summary judgment, id. at 150, and must review all facts in the light most favorable to the
nonmoving party. First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181 (5th Cir. 2009).
II. Analysis
A. Negligent Undertaking
Plaintiffs assert that, in undertaking to establish a complex national background-check
system, the Government assumed the duty not to operate this system negligently. To establish a
claim of negligent undertaking in Texas, Plaintiffs must show that: (1) the Government undertook

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to perform services that it should have known were necessary for the protection of others but failed
to exercise reasonable care in that undertaking; (2) the Government’s negligent performance of
those services increased the risk of harm; and (3) the Government’s failure to exercise reasonable
care caused physical harm. Torrington v. Stutzman, 46 S.W.3d 829, 838–39 (Tex. 2000); see also
Restatement (Second) of Torts § 323 (1965); docket no. 59 at 35.
1. Duty
The Government devotes a significant portion of its summary judgment briefing to the
argument that Texas law does not impose a duty that could provide a basis for liability against the
United States in this case. See docket no. 256 at 3−16; docket no. 277 at 3−8. This Court has
already rejected this argument twice: first, in its order denying the Government’s motion to
dismiss, docket no. 59 at 37, and again, in its order denying the Government’s motion to certify
interlocutory appeal of that order, docket no. 133. The Government characterizes the Court’s
previous orders as “afford[ing] Plaintiffs an opportunity to take discovery to attempt to prove” the
existence of a duty. Docket no. 256 at 4. “[T]he existence of duty,” however, “is a question of law
for the court to decide from the facts surrounding the occurrence in question.” Greater Houston
Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
The Court has already determined, as a matter of law, that the Government owed a duty to
Plaintiffs. The Government contends that this conclusion should be reversed, however, based on
discovery conducted after the Court ruled on the motion to dismiss. Docket no. 256 at 10. Though
the Court reaffirms its recognition of a duty, it will briefly address the Government’s arguments—
to the extent that they rely on evidence obtained through discovery rather than abstract legal
arguments recycled from the motion to dismiss—in order to clarify the source and scope of the
Government’s duty.

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At bottom, the Government objects to the Court’s recognition of a duty because of the
“unprecedented liability” the United States would face if it “could be held liable under the FTCA
whenever Congress enacted a federal statute.” Docket no. 256 at 5 n.1. Plaintiffs correctly point
out that a federal statute can only implicate the FTCA where “Congress passes a law undertaking
responsibilities for the Government.” Docket no. 264 at 3. But the Government’s objection also
misstates the Court’s characterization of the undertaking in this case: “enacting and acting under
color of regulations that require DOD and USAF to collect, handle, process, and report information
to the background check system.” Docket no. 59 at 38 (emphasis added). Indeed, the Court
explicitly recognized that federal statutes and regulations cannot, on their own, “create the duty
that gives rise to [an FTCA] claim.” Id. at 33 (quoting Zelaya v. United States, 781 F.3d 1315,
1324–25 (11th Cir. 2015)). They “may provide evidence that the government has assumed duties
analogous to those recognized by local tort law” or “may provide the standard of care against
which the government’s conduct should be assessed.” Id. But the existence of a duty depends on
the law of the applicable jurisdiction. Id.
The Court did not recognize an undertaking based on the Government’s enactment of the
Brady Act alone, or even on the adoption of its implementing regulations. The evidence that the
Government undertook to operate a national background check system is found in its own
conduct—the Government does in fact operate a national background check system, and has done
so since the NICS was established in 1998. See docket no. 256, Ex. W at USA0005407. Despite
the Government’s objections, this duty analysis is entirely consistent with how Texas courts treat
private persons in the context of negligent undertaking cases. In Texas, a mere promise to render
a service coupled with neither performance nor reliance generally imposes no tort obligation upon
the promisor. Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W. 2d 392, 396 (Tex. 1991).

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“Without some affirmative course of action beyond the making of a mere promise or without
reliance on that promise, the [defendant] cannot be held liable for [the plaintiff's] injuries.” Id.
Thus, in assessing the scope of the Government’s undertaking, the Court must look not only to the
language of the statutes and regulations that “provide evidence that the government has assumed
duties” but also to the Government’s conduct in light of those statutes and regulations.
The Government argues that the Court should not recognize an undertaking to submit
Kelley’s fingerprints and criminal history to the FBI based on: (1) the USAF’s adoption of certain
recommendations by the Inspector General (“IG”) of the DoD in 2015; (2) the Government’s
operation of the Defense-Incident Based Reporting Systems (“DIBRS”); or (3) Kelley’s in-patient
treatment at the Peak and subsequent bad conduct discharge. The Court will address each argument
in turn.
a. Adoption of 2015 Report of the Inspector General
In February 2015, the IG of the DoD 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 FBI databases. Docket no. 250, Ex. U-18 at 17−21. Specifically, the IG reviewed whether
fingerprints and final disposition reports for service members convicted of qualifying offenses
between June 1, 2010, and October 31, 2012, were submitted to the FBI’s CJIS Division. Id.
In its review, the IG found that 304 sets of fingerprints and 334 final dispositions for
military offenders convicted during the sample period were missing from the FBI databases. Id.
The IG issued two recommendations to the Secretaries of the Navy and the Air Force: first, that
they “take prompt action to submit the missing [fingerprints and disposition reports],” and, second,
that they “take prompt action to ensure fingerprints and final disposition reports for future arrestees
and convicted offenders conform to DoD Instruction 5505.11.” Id. (emphasis added). It is

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undisputed that the USAF agreed with the IG’s recommendations. See id. However, the parties
disagree about whether, in adopting these recommendations, the USAF agreed to submit Kelley’s
fingerprints and criminal history to the FBI.
The source of this disagreement is the date of Kelley’s conviction: November 7, 2012. His
conviction fell outside of the sample period the IG used in its evaluation. Thus, his fingerprints
and final disposition cannot have been among the 304 sets of missing fingerprints and 334 missing
final dispositions that the Government agreed to submit to the FBI. The relevant question is
whether in agreeing to ensure that fingerprints and final disposition reports “for future arrestees
and convicted offenders” would be submitted, the USAF undertook to submit information related
to Kelley’s conviction, which, by the date of the IG’s report, was over two years old. Id. The
Government contends that “the record demonstrates that the USAF did not adopt any IG
recommendation that constituted an undertaking to submit Kelley’s criminal history information
into the NICS system.” Docket no. 156 at 17. Indeed, the IG noted that the response from the
USAF “addressed all specifics of the recommendation” and that “[n]o further comments [were]
required.” Docket no. 250, Ex. U-18 at 21.
Plaintiffs offer some evidence showing that the USAF interpreted the adoption of the IG’s
recommendations more broadly than the Government suggests. For example, emails following the
2015 IG report provide that AFOSI “had a lot of clean-up work to do in NCIC to document action
in the system” and “anything less than 100% review in this particular area (NCIC indexing) [is]
falling short.” Id., Ex. U-10 at 1−3. One Government representative characterized the “bottom
line” of the IG report as “telling the Air Force [it] still had a problem with reporting criminal data”
and that the thrust of the report “was for the Air Force to fix this problem. That’s it.” Docket no.
249, Ex. H, Dep. Col. Ford at 312:5−19.

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However, even assuming such statements conveyed an intent to correct all of the USAF’s
errors in FBI reporting, Plaintiffs have failed to provide evidence showing that the Government
ever actually submitted missing fingerprints or criminal history information for convictions that
occurred outside of the sample period. That is, if after the IG report was published the USAF had
submitted fingerprints and criminal history information for offenders convicted between
November 1, 2012—the day after the sample period—and February 12, 2015—the date of the IG
report—the Court might be able to conclude, from the USAF’s conduct, that it had undertaken to
perform a comprehensive self-audit of its compliance with its NICS obligations. In the absence of
such affirmative conduct, the Court cannot conclude that the USAF intended to correct its failure
to submit Kelley’s criminal history information by adopting the 2015 IG report.
Still, the Government’s adoption of the IG’s recommendations does reaffirm its original
undertaking to operate the NICS. That is, the USAF’s correction of the errors identified by the IG
constitutes an affirmative act that confirms the Government’s original assumption of a duty to
collect and report Kelley’s fingerprints and criminal history to the FBI.
b. Defense-Incident Based Reporting Systems
Plaintiffs allege that the DoD and USAF were negligent in failing to submit reportable
Brady Act information to the NICS databases through the Defense-Incident Based Reporting
Systems (“DIBRS”). Docket no. 249 at 12−17. The Government responds that it cannot have been
negligent for failing to submit Brady information to the NICS through the DIBRS for the simple
reason that the DIBRS is incapable of submitting such information to the NICS databases. Docket
no. 265 at 7.
The FBI regularly collects crime data for purposes other than the administration of the
background check system. Since 1930, the FBI has collected incident-based crime data reported

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by county, state, and federal law enforcement agencies “to develop a reliable set of criminal
statistics.” Docket no. 250, Ex. U-6 at 55. Pursuant to the Uniform Federal Crime Reporting Act
of 1988 and its implementing regulations, the FBI operates a clearinghouse for crime data called
the National Incident-Based Reporting System (“NIBRS”). 34 U.S.C. § 41303. Through the
NIBRS, the FBI “assembles, publishes, and distributes . . . data to contributing agencies,” for “use
in their administration, operation, and management.” Id.
The DIBRS is an incident-based database operated by the DoD to satisfy the data collection
and reporting requirements of, among other Congressional mandates, the Uniform Federal Crime
Reporting Act of 1988 and the Brady Act. Id. at 30. The data is maintained at the DoD’s Defense
Manpower Data Center (“DMDC”) and periodically submitted to the NIBRS. Id. In essence, the
USAF has a duty to report DIBRS information to the DMDC, which then provides the data to the
FBI for inclusion in a separate database, the NIBRS. Id.
In March 1998, several months before the NICS became operative, the DoD entered into a
Memorandum of Understanding (“MOU”) with the FBI to submit offenses reportable under the
Brady Act within the DIBRS to the NICS Index. Id. at 38. The DoD then issued regulations
establishing procedures for the collection and submission of DIBRS criminal history to the FBI.
See DoDI 7703.47 (id. at 29) and DoD Manual 7730.47-M, Volume I (“DoDM 7730.47-M-VI”)
(id. at 53).
But the DoD failed to fulfill the 1998 MOU’s promise in two fundamental ways. First, the
regulations it issued—DoDI 7730.47 and DoDM 7730.47-M-VI—do not include a specific
requirement to submit Brady information from the DIBRS to the FBI CJIS Division for entry into
the NICS databases. Instead, they merely indicate that “[t]he DIBRS shall be used to centralize the
collection of information that is reportable by the [DoD] pursuant to the [Brady Act].” Id. at

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USA00004368. Thus, the DMDC had instructions to collect the Brady information in DIBRS, and
to submit it to the FBI for inclusion in the NIBRS, but not for inclusion in the NICS databases.
This distinction—between the NIBRS and the NICS databases—is the key to
understanding the second way in which the DoD and FBI failed to realize the objectives of the
1998 MOU. According to DoDI 7730.47 and DoDM 7730.47-M-VI, LEOs are required to collect
and submit Brady Act information, which includes the prohibited person’s personally identifiable
information (“PII”), to the DMDC for entry into the DIBRS. Docket no. 256, Ex. HH at
USA00004365. But the DIBRS does not actually have the ability to capture the PII for the Brady
Act information that is required for submission to the FBI CJIS Division and entry into the NICS
databases. Id., Ex. II at USA00024967.
The DIBRS was an existing database when the Brady Act information submission
requirement was established, and it was never updated to meet the requirements of the NICS
databases. Id. The DIBRS was designed to collect data for submission to the FBI, which would
then enter it into the NIBRS. Docket no. 250, Ex. U-6 at 30. The purpose of the NIBRS is to
provide LEOs with aggregated crime statistics—“detailed, accurate, and meaningful statistical
data about when and where crime takes place, what form it takes, and the characteristics of its
victims and perpetrators.” Id. at 55. The NIBRS does not contain the required PII to allow NICS
to search the data. And, because the DIBRS was designed to feed the NIBRS, the DIBRS likewise
does not identify the biographical indicators that would allow it to operate as an NICS database.
The 1998 MOU envisioned a level of data integration and flexibility that the DIBRS simply
could not deliver. Other than the 1998 MOU, 5 Plaintiffs have failed to provide any evidence of an

5

The DoD and the FBI appear to have reaffirmed the 1998 MOU in a 2007 MOU. See docket no. 250, Ex.
U-6 at 45. Given the DoD’s continued failure to take any affirmative steps to update the DIBRS, however,
the 2007 MOU likewise fails to provide sufficient evidence of an undertaking.

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affirmative act that would constitute an undertaking to harmonize the DIBRS and NICS reporting
requirements. Rather than overhauling the DIBRS to comply with the data requirements of the
NICS Index, the DoD elected to submit Brady information separately through the III, an entirely
different system. As such, the Court finds that the 1998 MOU merely memorialized a
misunderstanding about the functionality of the DIBRS—and the requirements of NICS data
submission—that continued until the DoD IG identified the problem in a 2020 review of the DoD’s
submission of criminal history information to the FBI. See docket no. 256, Ex. II at USA00024967.
Even if the 1998 MOU can be read as a promise by the DoD to submit criminal history information
to the NICS databases through the DIBRS, “[w]ithout some affirmative course of action beyond
the making of a mere promise,” the Government cannot be held liable for its failure to keep its
word. Fort Bend Cnty. Drainage Dist, 818 S.W. 2d at 396. The Court concludes that the
Government did not undertake to provide Brady Act information to the NICS through the DIBRS.6
c. Kelley’s Mental Health and Bad Conduct Discharge
The Government observes that Kelley was not disqualified from owning a firearm under
Sections 922(g)(4) or (g)(6) of the Gun Control Act, which prohibit the sale of firearms to
individuals who have been “adjudicated as a mental defective or . . . committed to any mental
institution” or those who have been “discharged from the Armed Forces under dishonorable
conditions,” respectively. Docket no. 256 at 9 n.3; see 18 U.S.C. §§ 922(g)(4), (6).
The Government asserts that Kelley’s in-patient treatment at the Peak did not disqualify
him from purchasing a firearm because he was never involuntarily committed to the Peak. ATF

6

Plaintiffs note that the DoD also agreed in DoDM 7730.47-M-VI to establish a central registry of domestic
violence incidents in the Military Services, but never actually created the database. Docket no. 249 at 14
(citing Ex. E, Dep. Verdego at 121:17–122:10). Here, again, the DoD’s mee promise to create the database,
without an affirmative act, cannot constitute an undertaking under Texas law.

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regulations clarify that “commitment to a mental institution” requires “formal commitment” by a
“court, board, commission, or other lawful authority.” 27 C.F.R. § 478.11 The DoD IG’s 2018
report on the USAF’s failure to submit Kelley’s information to the FBI confirms this interpretation.
See docket no. 250, Ex. U-14 at 17. Kelley voluntarily entered the Peak on two occasions: February
23, 2012, and April 30, 2012. See id., Ex. C; Ex. E. And when he left the grounds without
authorization on June 7, 2012, local law enforcement returned him to the facility for one day
without a formal court order. See docket no. 250, Ex. U-14 at 17. Thus, Kelley’s mental health
history did not disqualify him from purchasing firearms under Section 922(g) of the Brady Act.
Nor did his bad conduct discharge. 27 C.F.R. § 478.11 further clarifies that the term
“discharged under dishonorable conditions” “does not include any separation from the Armed
Forces resulting from any other discharge, e.g., a bad conduct discharge.” Because Kelley’s bad
conduct discharge did not constitute a “dishonorable discharge,” he was not prohibited from
possessing a firearm under 18 U.S.C. § 922 (g)(6).
The Government thus concludes that the “regulatory regime through which DoD would
submit information to the FBI pursuant to §§ 922 (g)(4) or (g)(6) is not relevant to this litigation.”
Docket no. 256 at 9 n.3. While the Court agrees that the specific procedures for reporting
dishonorable discharge and mental health information to the FBI are not implicated here, Sections
922(g)(4) and (g)(6) remain relevant to this litigation insofar as they bear on the question of
foreseeability. That is, while Sections 922(g)(4) and (g)(6) did not trigger a duty to report Kelley’s
information to the FBI, they do shed light on the characteristics that make gun ownership more
dangerous for some people than others.

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2. Breach
Having clarified the source and the scope of the Government’s undertaking, the Court finds
that there is no genuine dispute of material fact as to whether the USAF breached its duty to
exercise reasonable care in the collection and submission of Kelley’s Brady information to the
FBI. It is undisputed that, in total, the USAF missed four opportunities to collect and submit
Kelley’s fingerprints to the FBI, two opportunities to submit his final disposition, and—through
mandatory supervisory reviews of Kelley’s investigative file—at least sixteen opportunities to
correct its earlier errors. See docket no. 149 at ¶¶1−7.
The first instance of the USAF’s negligence in the Kelley investigation occurred on June
9, 2011, during AFOSI’s very first interview with Kelley concerning his stepson’s injuries. After
the interrogation, AFOSI agents collected two copies of his fingerprints, pursuant to AFOSI and
DoD policy. See Docket no. 149 ¶ 1; AFISO Manual (docket no. 250, Ex. U-2 at 10); DoDI
5505.11 (docket no. 250, Ex. U-6 at 25). At the end of the interview, agents collected two sets of
Kelley’s fingerprints. Because they had probable cause to believe that Kelley had committed an
assault, 7 the agents should have submitted one set of Kelley’s fingerprints to the FBI. Id. Both sets
of fingerprints remained in the file. Id.
The USAF’s second opportunity to collect Kelley’s fingerprints occurred on February 17,
2012, when Security Forces investigators questioned Kelley about his wife’s abuse allegations.
Though the record does not indicate whether the investigators made a probable cause
determination, Kelley’s Commander did issue Kelley a no-contact order on the date of the
interview and later issued a letter of reprimand finding that Kelley had physically assaulted his

7

An AFOSI special agent submitted a probable cause affidavit to the military magistrate to obtain authority
to search Kelley’s residence for evidence of the abuse. Docket no. 350, Ex. U-17 at 26−27.

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wife on multiple occasions. Docket no. 250, Ex. U-11 at 17; docket no. 265, Ex. UU at
USA00013387–88. It is undisputed that the 49th Security Forces Squadron failed to collect
Kelley’s fingerprints after the interview. Docket no. 149 ¶ 2.
On June 8, 2012, following Kelley’s videotaped confession and his escape from the Peak,
ASOFI agents interviewed Kelley for a second time. The parties have stipulated that DoD and
USAF instructions and policies required the agents to collect and submit Kelley’s fingerprints to
the FBI. Docket no. 149 ¶ 3. Agent Clinton Mills certified in the interview records that he
fingerprinted Kelley, but the investigative file did not contain any fingerprints from that date.
Docket no. 250, Ex. U-17 at 22; docket no. 149 ¶ 3. This represents the Government’s third
opportunity—and third failure—to collect Kelley’s fingerprints and submit them to the FBI for
inclusion in the NICS databases.
The parties agree that after Kelley’s General Court-Martial conviction on November 7,
2012, DoD and Air Force instructions and policies required the 49th Security Forces Squadron
Confinement Facility to collect Kelley’s fingerprints and submit them to the FBI. Docket no. 149
¶ 4; see AFI 31-205 (docket no. 250, Ex. U-3 at 17−20). It is undisputed that the 49th Security
Forces Squadron Confinement Facility employees did not collect or submit Kelley’s fingerprints
for inclusion in the NICS. Docket no. 149 ¶ 4. This was the fourth opportunity for the USAF to
submit Kelley's fingerprints and the first missed opportunity to submit Kelley's conviction to the
FBI CJIS Division. 8

8

Fingerprint cards are collected on form FD-249, which includes a space to record the final disposition of
the case. See DoDI 5505.11, docket no. 250, Ex. U-6 at 13. If the final disposition is not available when
FD-249 is collected and submitted, then an FBI/DoJ Form R-84, “Final Disposition Report,” is required.
Id. at 3 ¶ 6.2.3. Because the disposition of Kelley’s case was available when he entered the 49th Security
Forces Squadron Confinement Facility on November 7, 2012, however, confinement officers should have
recorded the conviction on FD-249, along with his fingerprints.

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Between June 29, 2011 and October 5, 2012, DoD and Air Force instructions and policies
required AFOSI Detachment 225 leadership to perform monthly reviews of the Kelley
investigation, including both the electronic record and the physical copy of the investigative files.
Id. ¶ 7. Though both sets of fingerprints collected on June 8, 2011 remained in Kelley’s file during
these fifteen monthly reviews, Detachment 225 leadership failed to note that one set of Kelley’s
fingerprints had not been submitted to the FBI and failed to take any corrective action. Id.
On December 14, 2012, AFOSI Detachment 225 received the results of Kelley’s General
Court-Martial conviction. Id. ¶ 5. DoD and Air Force instructions and policies required
Detachment 225 to submit Kelley’s final disposition report to the FBI within fifteen days after
receiving notice of the final disposition. Id.; docket no. 250, Ex. U-2 at 12 ¶ 5.14.2.2. Detachment
225 leadership failed to submit Kelley’s final disposition report to the FBI. Id. This was the second
opportunity for the USAF to submit the final disposition to the FBI.
That same day, Detachment 225 closed the Kelley investigation. Docket no. 250, Ex. U17. Before closing an investigative file, AFOSI unit leadership must conduct another review of the
file, which also requires reviewing fingerprints and the final disposition report and confirming in
12MS that both were submitted to the FBI. The Detachment 225 SAIC falsely certified in 12MS
that Kelley’s fingerprints and final disposition information had been submitted to the FBI, which
allowed him to close the Kelley investigation. Docket no. 250, Ex. U-17.
Given these repeated failures to collect and submit Kelley’s information to the FBI, no
reasonable trier of fact could find that the Government exercised reasonable care in performing its
FBI reporting obligations. Accordingly, the Court holds that the Government breached its duty as
a matter of law, and that Plaintiffs are entitled to summary judgment on that issue.

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3. Increased Risk of Harm
Drawing on Section 323 of the Restatement (Second) of Torts, Texas law requires Plaintiffs
to establish either that they relied on the Government’s performance of its duties or that the
Government’s failure to exercise reasonable care in operating the background-check system
increased the risk of harm. Torrington, 46 S.W.3d at 838 (citing Restatement (Second) of Torts §
323(a),(b) (1965)). Because there is no evidence that Plaintiffs affirmatively relied on the operation
of the NICS, 9 the parties agree that Plaintiffs must demonstrate that the Government’s negligence
increased the risk of harm. Id.
The parties disagree about the proper benchmark for this assessment, however. The
Government asserts that the “relevant inquiry is whether the risk to Plaintiffs would have been
lower if the Government had not operated the background check system at all, whether negligently
or not.” Docket no. 256 at 16–17. Plaintiffs argue that the correct reference point is non-negligent
performance. Docket no. 264 at 8−13. Thus, the Court should ask whether the risk of harm would
have been lower if the Government had operated the background check system with reasonable
care. Though the Court endorses Plaintiffs’ framing of the inquiry for the reasons explained below,
the evidence demonstrates that summary judgment would be inappropriate under either standard.
9

The Reynolds Plaintiffs take the position that the Government’s negligence in operating the NICS
increased the risk of harm to Plaintiffs by depriving the State of Texas the opportunity to establish its own
background check system that would have prevented the shooting. Docket no. 308 at 17−20.

Though framed as evidence that the USAF “increased the risk of harm,” the Reynolds Plaintiffs’ position
is at bottom about reliance: “The Government knows that Texas and all states have come to rely on the
Government’s operation of this system as the sole source of information about the criminal histories of
discharged military members who apply for firearm ownership.” Id. at 18 (emphasis added).
The Court need not speculate about whether the State of Texas would have established its own background
check system in the face of the Government’s failure to operate the NICS with reasonable care. A negligent
undertaking claim based on reliance requires a showing that the plaintiff relied on the undertaking.
Torrington, 46 S.W.3d at 838. Even if the State legislature’s failure to enact a complex regulatory regime
could serve as evidence that the State relied on the Government’s undertaking—itself a doubtful
proposition—it would not demonstrate that Plaintiffs relied on the undertaking.

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The absence of a clear baseline for the risk-of-harm analysis has led to inconsistent
applications of Section 323, even within Texas. See, e.g., Texas Woman’s Univ. v. The Methodist
Hosp., 221 S.W.3d 267, 285 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (finding genuine issue
of material fact as to whether hospital’s negligent failure to timely install its flood protections
increased the risk of flood damage to neighboring university compared to non-negligent
performance); City of Haltom City v. Aurell, 380 S.W.3d 839, 859 (Tex. App.—Fort Worth 2012,
no pet.) (finding that city’s alleged failure to exercise reasonable care in undertaking to protect
low-lying neighborhood from flooding “[did] not raise a fact issue that the danger of flooding . . .
was worse . . . than if the [c]ity had never recognized the danger and had never expressed an
intention to remedy it.”). That many negligent undertaking cases implicate both reliance and
increased risk of harm only adds to the confusion. See, e.g., Texas Woman’s Univ., 221 S.W.3d at
285; Kristensen v. United States, No. 1:17-CV-126-DAE, 2019 WL 1567908, at *6 (W.D. Tex.
Jan. 31, 2019). Indeed, the Government correctly points out that several of the cases that Plaintiffs
cite in support of their risk-of-harm standard are governed by the plaintiff’s reliance on the
undertaking, and do not address whether the defendant’s conduct increased the risk of harm.
Docket no. 277 at 10 n.6 (citing Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex. 1982) and
Indian Towing Co. v. United States, 350 U.S. 61 (1955)).
The Government relies heavily on language from Colonial Savings Association v. Taylor
for the proposition that Texas courts will not impose liability in negligent undertaking cases unless
the risk of harm resulting from the negligence is greater than the risk of harm before the
undertaking. 544 S.W.2d 116, 120 (Tex. 1976). There, the defendant bank, which held a lien on a
property owned by Taylor, obtained an insurance policy that covered only one of the two homes
on Taylor’s property. A fire destroyed the home that the policy did not cover, and Taylor sued the

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bank for negligent undertaking, arguing that the bank’s failure to insure the home increased his
risk of harm. The Texas Supreme Court disagreed, explaining that “Colonial’s failure to obtain
insurance on the house did not increase the risk of fire to the house.” Id. at 120. The court observed
that, unless Taylor had refrained from purchasing insurance in reliance on Colonial’s undertaking
to purchase it for him, “the loss would be as much a result of his own failure to obtain insurance
as of Colonial’s,” and remanded the case for further proceedings on the reliance issue. Id. at 121.
Of course, the harm in this case cannot be said to be as much a result of Plaintiffs’ own failure to
operate a national background-check system as the Government’s. As the Court previously noted
in its order denying the Government’s motion to dismiss, “[t]he United States, of all possible
entities, is best positioned to carry out the NICS system effectively.” Docket no. 59 at 37.
The Court agrees with Plaintiffs that the relevant question is whether the risk of harm would
have been lower if the Government had performed its duties with reasonable care. The Government
argues that the Court’s standard would dramatically expand the scope of liability in negligent
undertaking cases because “in almost every negligence case, it can be said that the defendant’s
conduct increased the risk of injury to the plaintiff as compared to a world in which the defendant
exercised reasonable care.” Docket no. 256 at 19. But the very case on which the Government
relies for its risk-of-harm standard—Taylor—contemplates imposing liability where the
defendant’s conduct did not increase the risk of harm compared to a world in which the defendant
exercised reasonable care. It is true that Colonial’s failure to obtain insurance “left Taylor in no
worse condition than if Colonial had never undertaken to provide [the service] in the first place.”
Taylor, 544 S.W.2d at 120. It is equally true, however, that if Colonial had exercised reasonable
care and insured the home, the insurance coverage would not have reduced the risk of fire. The
issue at the center of Taylor’s risk-of-harm analysis, then, is how courts should identify the relevant

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risk of harm, not how they should measure it. 10 See Lifshen v. 20/20 Acct. Sols., LLC, 458 F. Supp.
3d 534, 544 (N.D. Tex. 2020) (“The [Taylor court] did not find a lack of insurance to be the risk
that negligent undertaking claims are concerned with. Rather, the risk is the harm itself.”).
The identity of the harm—injury and death resulting from gun violence—is not in question
here. The inquiry is whether the Government’s negligence increased the risk of harm to Plaintiffs.
As the Court previously observed in its order denying the Government’s motion to dismiss, “[w]ith
Kelley specifically, at every stage in his life—during and after his USAF tenure—the threat of
violence loomed.” Docket no. 59 at 36. The summary judgment record confirms this conclusion.
In recommending that the USAF permanently bar Kelley from HAFB after his bad conduct
discharge, Commander Robert Bearden summarized the evidence of the danger Kelley posed:
“Kelley has repeatedly threatened to kill his leadership. He was openly carrying a firearm on
Holloman, AFB . . . I view this Airman as a threat to not only myself, but my staff and other
Airmen in this Squadron.” Docket no. 250, Ex. U-4 at 3. A reasonable trier of fact could find that,
under such circumstances, the Government’s negligent failure to submit Kelley’s fingerprints to
the FBI—and to correct that failure after supervisory review of Kelley’s file—increased the
likelihood of injuries like those suffered by Plaintiffs.
Plaintiffs note that testimony from the Government’s witnesses and Rule 30(b)(6)
representatives “almost universally agrees that the NICS background search system decreases the
risk of shooting deaths by keeping guns out of the hands of felons.” Docket no. 249 at 18. Kimberly

10

Though the Government objects to this formulation as an “attempt to supplant the required ‘increase[d]
risk of harm’ element with a ‘foreseeability’ analysis,” the conceptual overlap that the Government
identifies between foreseeability and Plaintiffs’ construction of the risk-of-harm requirement is not
necessarily problematic. Nor is it particularly surprising, given that foreseeability pervades inquiries into
both the existence of a duty and proximate cause. See Coachmen Indus., Inc. v. Willis of Illinois, Inc., 565
F. Supp. 2d 755, 778 (S.D. Tex. 2008) (treating the “increased risk of harm” inquiry as “analogous to a
question of proximate cause.”).

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Del Greco, the Director of FBI’s CJIS Division, disagreed, however, observing that “guns are
obtained in many different ways.” Docket no. 277, Ex. XX at 36–37. The Government’s risk-ofharm argument thus depends on the ubiquity of firearms in the United States and the existence of
multiple avenues for obtaining firearms that do not implicate the background check system at all,
regardless of how it is operated. This is not just a hypothetical possibility—there is evidence that
Kelley purchased guns from non-FFLs and that he had access to his father’s firearm collection.
Docket no. 259 at 62−63, 122; see infra Section II(A)(4)(a).
Plaintiffs counter that Kelley was unlikely to utilize the alternatives, however, because each
of his successful firearms purchases—including two purchases on base while he was under
investigation for assault 11 and four purchases after his conviction—actually “conditioned Kelley
to continue buying firearms at federally licensed dealers.” Docket no. 249 at 24; docket no. 250,
Ex. U-20. To the extent that evidence at trial shows that the Government’s negligence encouraged
Kelley’s unlawful firearms purchases, this finding would likely satisfy the demanding risk-of-harm
standard proposed by the Government. That is, in light of everything that the USAF learned about
Kelley before his bad conduct discharge, a trier of fact could find that the risk of harm resulting
from the Government’s negligence was greater than the risk of harm before the existence of the
NICS process. See, e.g., W. Hills Bowling Ctr., Inc. v. Hartford Ins. Co., 412 F.2d 563 (5th Cir.
1969) (holding that an insurance company’s negligent failure to conduct a timely investigation

11

Kelley purchased two firearms on base while he was under investigation for assaulting his wife and
stepson—one on February 12, 2012 and another on April 12, 2012. Docket no. 265, Ex. OO at 3−4, 7. The
Government correctly points out the Kelley would not have been prohibited from purchasing firearms under
Section 922(g) of the Brady Act before his conviction in November 2012. However, if the ASOFI and
Security Forces agents had submitted Kelley’s fingerprints to the FBI after their interviews with him on
June 9, 2011, and February 17, 2012, respectively, the NICS check would have returned a “delayed”
response and triggered the three-day waiting period. See docket no. 250, Ex. U-12 at 35 n. 73. A reasonable
factfinder could conclude that such a delay would have discouraged future gun purchases, even if it did not
prohibit the transfers in question.

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after a fire foreseeably increased the risk of a second fire where the insurer was on notice of the
activity of vandals after the first fire); Sabia v. State, 164 Vt. 293, 669 A.2d 1187 (1995) (“[T]he
continued abuse following [the defendant’s] failure to act posed an increased risk of harm by
sending the message to the perpetrator that he could act with impunity.”).
Kelley’s ability to obtain firearms from sources outside of FFLs is at the heart of this factual
dispute and, in many ways, at the heart of this litigation. There is a genuine dispute of material fact
as to whether the Government’s failure to exercise reasonable care in performing its duties under
the background check system increased the risk of harm. Because resolving this dispute will
require the factfinder to weigh the evidence and make credibility determinations, granting
summary judgment in favor of either party on the risk-of-harm issue is inappropriate and the
parties’ motions are denied.
4. Proximate Cause
Proximate cause comprises two elements: cause-in-fact and foreseeability. Doe v. Boys
Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). “Both elements must be present
. . . and may be established by direct or circumstantial evidence.” McClure v. Allied Stores of Tex.,
Inc., 608 S.W.2d 901, 903 (Tex. 1980). Proximate cause may not be established “by a mere guess
or conjecture, but rather must be proved by evidence of probative force.” Id. at 904. Texas law
recognizes that there may be more than one proximate cause of a single event. Del Lago Partners,
Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). Thus, the relevant inquiry here is whether the
Government’s negligent failure to report Kelley’s criminal record to NICS was a proximate cause,
not the proximate cause, of Plaintiffs’ injuries. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d

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778, 784 (Tex. 2001). “All persons whose negligent conduct contributes to the injury, proximately
causing the injury, are liable.” Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992).
a. Cause-in-Fact
The test for cause-in-fact, or “but-for causation,” is whether the act or omission was “a
substantial factor in causing the injury and without which the harm would not have occurred.”
Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 929 (Tex. 2015) (quoting Nixon
v. Mr. Prop. Mgmt. Corp., 690 S.W.2d 546, 549–50 (Tex. 1985)). In determining whether an act
or omission is a “substantial” factor in causing an injury, the Supreme Court of Texas has relied
on a comment to Section 431 of the Restatement (Second) of Torts:
The word “substantial” is used to denote the fact that the defendant’s conduct has
such an effect in producing the harm as to lead reasonable men to regard it as a
cause, using that word in the popular sense, in which there always lurks the idea of
responsibility, rather than in the so-called “philosophic sense,” which includes
every one of the great number of events without which any happening would not
have occurred. Each of these events is a cause in the so-called “philosophic sense,”
yet the effect of many of them is so insignificant that no ordinary mind would think
of them as causes.
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991) (quoting Restatement (Second) of
Torts § 431 cmt. a (1965)). Thus, even if the plaintiff’s injury would not have occurred “but for”
the negligence of the defendant, the connection between the defendant and the plaintiff’s injuries
may be too attenuated to establish legal cause. See Union Pump Co. v. Allbritton, 898 S.W.2d 773,
775 (Tex. 1995). If the defendant’s negligence merely “furnished a condition that made the injuries
possible,” there can be no cause in fact. See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v.
Mason, 143 S.W.3d 794, 799 (Tex. 2004). Rather, “[t]he evidence must go further, and show that
such negligence was the proximate, and not the remote, cause of resulting injuries.” Doe v. Boys
Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).

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The Government argues that Plaintiffs’ injuries are “too attenuated” to have been
proximately caused by its negligence and that it “did no more than create the conditions that
enabled” the shooting. Docket no. 256 at 22. Specifically, the Government insists that “[i]t is
simply too remote” to conclude that the USAF’s failure to submit information to the NICS database
“in 2011-2012 caused the mass shooting at the First Baptist Church of Sutherland Springs in 2017,
nearly five years later.” Id.
The Government’s contention that its conduct was too remote in time from the shooting,
however, overlooks the ongoing nature of the danger created by its negligence. The cases the
Government cites in support of its timing argument are inapposite because their reasoning relies
on identifying an endpoint to the danger created by a tortfeasor’s negligence. See Bell v. Campbell,
434 S.W.2d 117, 120−22 (Tex. 1968) (“All forces involved in or generated by [the defendants’]
negligence had come to rest, and no one was in any real or apparent danger therefrom.”); Union
Pump Co., 898 S.W.2d at 776 (“[T]he forces generated by the fire had come to rest when [plaintiff]
fell off the pipe rack. The fire had been extinguished, and [the defendant] was walking away from
the scene.”). In the five years between his conviction and the shooting, Kelley was able to acquire
four firearms in four separate transactions because of the Government’s negligence. Kelley’s
ability to purchase firearms—and the danger therefrom—did not come to rest after his conviction
in 2012 or even his discharge from the USAF in 2013. Thus, the Government cannot demonstrate
that the connection in time between the negligent conduct and Plaintiffs’ injuries is too attenuated
to establish legal cause. Bell, 434 S.W.2d at 122.
The Government’s argument that its conduct was not a substantial factor in causing
Plaintiffs’ injuries in the “popular” sense relies primarily on Roberts v. Healey, 991 S.W.2d 873
(Tex. App.—Houston [14th Dist.] 1999, pet. denied). In Roberts, the plaintiff sued her attorney

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for his negligent failure to obtain a protective order against her estranged husband, who later
killed the plaintiff’s two small children and wounded her mother. Id. at 877. The Fourteenth Court
of Appeals found that the attorney’s “failure to obtain a protective order did no more than create
the condition (absence of a protective order) that enabled” the estranged husband’s criminal
conduct. Id. The Government thus asserts that Roberts stands for the proposition that “the failure
to submit information to an entity for the purpose of preventing a third party from engaging in
criminal conduct is too attenuated to constitute a legal cause of a plaintiff’s injury.” Docket no.
256 at 21.
A closer examination of the reasoning in Roberts, however, indicates that although the
opinion recites the “furnished a condition” language that the Texas Supreme Court has employed
to describe attenuation problems, the court was merely assessing traditional “but for” causation.
In holding that the defendant “conclusively disproved cause in fact,” the court relied on deposition
testimony from the plaintiff that, earlier on the day of the attack, she had lied to her husband and
told him that she had already obtained a protective order. Id. at 879. Thus, the defendant argued,
“even if he had obtained a protective order,” the husband “would nevertheless have killed his
daughters and shot [the plaintiff’s mother].” Id. Because the absence of a protective order was not
even a but-for cause of the injuries, the court should not have reached the question of whether the
attorney’s negligence “furnished a condition that made the injuries possible.”
Plaintiffs attempt to further distinguish Roberts on the ground that “[a] protective order is
not capable of physically preventing anything” while a proper background check has the effect of
“physically preventing a would-be purchaser from purchasing guns at an FFL.” Docket no. 264
at 15−16. Thus, Plaintiffs argue, “[a] proper background check does not merely discourage action,
like a protective order; it is an actual, physical deterrent to improper gun sales.” Docket no. 264

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at 16. It is not clear, however, that “physically preventing” the improper gun sales to Kelley would
have “physically prevented” the shooting in the same way—it may have merely discouraged it.
This is not necessarily fatal to Plaintiffs’ claims. See Del Lago Partners, 307 S.W.3d at 774−75
(holding that a reasonable jury could have found that a bar’s failure to provide security was a
cause-in-fact of injuries sustained during a brawl, based on testimony that a security presence can
“deter problems,” “chill dangerous or criminal activity,” and “defuse hostile behavior”).
However, the extent to which a proper background check would have “discouraged” Kelley from
committing the shooting depends, at least in part, on his ability to obtain guns from sources other
than FFLs.
The Government argues that Kelley’s access to “alternative sources” of firearms is
dispositive of the causation issue. Docket no. 256 at 22−29. Specifically, the Government argues
that Kelley could have borrowed a firearm or purchased one from a non-FFL—at a gun show,
through a straw purchaser, or online. Docket no. 256 at 27. In support of this argument, the
Government points to evidence that Kelley lived on the same property as his father, Michael
Kelley, and had access to his father’s firearms. Docket no. 259 at 122. Danielle Smith, Kelley’s
widow, also testified that he frequently attended gun shows in Colorado and in Texas and that he
had purchased two firearms from a friend in Colorado. Docket no. 259 at 62−63. Plaintiffs do not
appear to dispute the evidence that Kelley could have procured firearms from non-FFLs. Rather,
they dispute the conclusions that the Government draws from this evidence, arguing that even if it
tends to show that he “knew how” to buy firearms from other sources, “[t]here is no evidence that
Kelley would have actually purchased guns from a non-FFL, if he couldn’t get them from an FFL.”
Docket no. 264 at 18. For example, relying on additional testimony from Ms. Smith, Plaintiffs note
that Kelley found the two guns he purchased from a friend to be “so unreliable that he threw one

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away and traded the other for a dog on Craigslist.” Docket no. 264 at 17 (citing docket no. 264-6
at 6).
As evidence that Kelley would not have been deterred from obtaining firearms if he had
failed the FBI background check, the Government cites Kelley’s unsuccessful attempt to purchase
a gun from Dick’s Sporting Goods in New Braunfels, Texas in late-2015. Docket no. 256 at 27;
see id., Ex. K at 1. The manager declined to sell Kelley the gun because he had presented a
Colorado driver’s license, rather than a Texas driver’s license. Id. But shortly thereafter, in April
2016, he purchased one of the firearms he used in the shooting at an Academy Sports + Outdoors
(“Academy”) store in Selma, Texas. 12 Id. In response, Plaintiffs point out that Academy is itself
an FFL. Docket no. 249 at 25. “[A]fter this licensed dealer denied Kelley a gun, he did not borrow
a gun from friends or family, and he did not ask someone to execute a straw purchase for him. Nor
did he go to a gun show. He simply went to another federal dealer,” where he passed the
background check. Id. Thus, the 2016 purchase cannot serve as evidence that Kelley would have
turned to non-FFLs if he had failed the FBI background check. Plaintiffs further submit that if the

12

The Government has designated Academy as a responsible third party in this action, alleging that
Academy violated the Federal Gun Control Act, 18 U.S.C. § 922(b)(3), by selling a firearm to Kelley in
Texas after he presented a Colorado driver’s license. See docket no. 150. This is also the basis for the
pending state court action against Academy.
The Reynolds Plaintiffs note that the identification issue was a short-lived and artificial impediment to
Kelley’s access to firearms from FFLs. See docket no. 308. An abstract of Kelley’s driving record indicates
that he was eligible to obtain a Texas driver’s license (“TDL”) as early as 2007 and eventually did obtain a
TDL in May 2017, approximately six months before the shooting. Id., Ex. A at 1−2. The Reynolds Plaintiffs
argue that, because Kelley could have purchased the same firearms used in the shooting with a valid TDL
within this six-month period, Academy’s illegal sale in 2016 cannot have proximately caused Plaintiffs’
injuries.
The Court agrees with the Reynolds Plaintiffs that Kelley’s acquisition of a TDL bears on the Government’s
designation of Academy as a responsible third party and on the appropriate apportionment of liability in
this case. Given the evidence that Kelley obtained firearms from non-FFLs, however, the Court cannot
conclude that the evidence of the TDL establishes that Plaintiffs are entitled to summary judgment on the
issue of proximate cause.

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Government had operated the background-check system with reasonable care, Kelley would likely
have been arrested before he committed the shooting—either for lying on his gun purchasing form
or, during any one of his several encounters with police after being discharged from the USAF, for
possessing a firearm as a convicted felon. Docket no. 275 at 6−8.
Counterfactuals abound. Determining whether it is more likely than not that the
Government’s negligence was a substantial factor in causing Plaintiffs’ injuries will require a
factfinder to weigh the evidence and to make credibility determinations. The parties’ disagreement
over the likelihood that Kelley would have committed the shooting using firearms from non-FFLs
thus represents a genuine issue of material fact that precludes summary judgment.
b. Foreseeability
Foreseeability, the second element of proximate cause, requires that a person of ordinary
intelligence should have anticipated the danger created to others by a negligent act or omission.
Nixon, 690 S.W.2d at 549–50. Foreseeability does not require the defendant to predict “the
particular accident or injury which in fact occurs.” Brown v. Edwards Transfer Co., 764 S.W.2d
220, 223 (Tex. 1988). Nor does it require that the actor foresee “the precise manner in which the
injury will occur once he has created a dangerous situation through his negligence.” Travis, 830
S.W.2d at 98. The danger of injury is foreseeable if its “general character . . . might reasonably
have been anticipated” in light of the attendant circumstances. Carey v. Pure Dist. Corp., 124
S.W.2d 847, 849 (Tex. 1939) (citations omitted).
“Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an
extraordinary sequence of events whereby the defendant’s conduct brings about the injury.” Doe,
907 S.W.2d at 478. It is “a practical test, a test of common experience applied to human conduct.”
City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987) (quoting Cook Consultants, Inc. v.

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Larson, 700 S.W.2d 231, 236 (Tex. App.—Dallas 1985, writ ref’d n.r.e.)); see also Clark v.
Waggoner, 452 S.W.2d 437, 440 (Tex. 1970) (emphasizing “the teachings of common experience
and practical sense in solving problems of foreseeability”). It asks whether the injury “might
reasonably have been contemplated” as a result of the defendant’s conduct. McClure, 608 S.W.2d
at 903.
Where the plaintiff’s injuries involve the criminal conduct of a third party, Texas courts
have relied on Section 448 of the Restatement (Second) of Torts:
The act of a third person in committing an intentional tort or crime is a superseding
cause of harm to another resulting therefrom, although the actor’s negligent conduct
created a situation which afforded an opportunity to the third person to commit such
a tort or crime, unless the actor at the time of his negligent conduct realized or
should have realized the likelihood that such a situation might be created, and that
a third person might avail himself of the opportunity to commit such a tort or crime.
Nixon, 690 S.W.2d at 550 (quoting Restatement (Second) of Torts § 448 (1965)) (emphasis added).
Thus, a tortfeasor’s negligence will not be excused where a third-party’s criminal conduct “is a
foreseeable result of such negligence.” Id.
The Government sets forth several arguments in support of its position that the shooting
was not a reasonably foreseeable consequence of its failure to submit Kelley’s fingerprints and
final disposition to the FBI: (1) the shooting was too “heinous” to be foreseeable; 13 (2) the shooting
was not similar to Kelley’s previous criminal conduct; and (3) Kelley was able to conceal his
intentions from those closest to him. Docket no. 256 at 29−31; docket no. 277 at 15−19. The Court
will address each in turn.

13

The Government argues that its failure to submit Kelley’s fingerprints and criminal history to the FBI
could not have been a “substantial factor” in causing Plaintiffs’ injuries because Kelley’s premeditated
criminal conduct was a superseding cause of the shooting. Though the Government raises this argument to
establish that it is not the cause-in-fact of the injuries Plaintiffs suffered, the question of whether Kelley’s
criminal conduct cuts off the Government’s liability depends on the foreseeability of the conduct. See
Nixon, 690 S.W.2d at 550. Thus, the Court addresses this argument in the context of its foreseeability
analysis.

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That a tragedy is, from a moral or psychological perspective, “senseless” or
“incomprehensible” does not render it legally unforeseeable. In suggesting that the Sutherland
Springs shooting was unforeseeable because it was “heinous,” the Government asks the Court to
substitute its subjective horror at the magnitude of harm in this case for the objective standard
required under Texas law. “The test is not what the wrongdoer believed would occur; it is whether
he ought reasonably to have foreseen that the event in question, or some similar event, would
occur.” Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex. 1970).
As evidence that some crimes are simply too heinous to be reasonably anticipated, the
Government cites other mass shooting cases where courts have found that the harm was
unforeseeable. See, e.g., Lopez v. McDonald’s Corp., 193 Cal. App. 3d 495 (1987); Phillips v.
Lucky Gunner, LLC, 84 F. Supp. 3d 1216, 1226 (D. Colo. 2015). Importantly, however, the
defendants in those cases knew nothing about the perpetrators that would lead them to anticipate
a mass shooting. See, e.g., Lopez., 193 Cal. App. 3d 495 (finding that a mass shooting committed
by an “unknown third party” was unforeseeable in premises liability case); Phillips, 84 F. Supp.
3d 1226 (“The only fact that plaintiffs offer to suggest that defendants should have questioned [the
shooter] is the amount of ammunition and other potentially dangerous materials that he purchased,
but there is nothing inherently suspicious about large internet orders.”). Here, the Government
cannot plausibly argue that it did not know anything about Kelley that would lead it to anticipate
a “heinous” crime because the USAF explicitly recognized his threats of mass violence as evidence
supporting its decision to extend his pre-trial confinement and, later, to permanently bar him from
HAFB. See, e.g., docket no. 250, Ex. U-4 at 6−7 (recommending continued pretrial confinement
and citing Kelley’s history of domestic violence, threats to take Security Forces’ guns and to kill
his wife, admission to and subsequent escape from a mental health facility, and plans to obtain

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weapons and body armor as evidence that Kelly was “dangerous and likely to harm someone if
released.”).
The Government’s argument that Kelley’s history of domestic violence did not render the
shooting foreseeable is equally unpersuasive. The Court agrees that, considered in isolation,
Kelley’s domestic violence conviction would not necessarily lead a person of ordinary intelligence
to anticipate a mass shooting. Texas courts have generally held that “domestic disputes do not
typically augur more serious crimes against strangers.” QuikTrip Corp. v. Goodwin, 449 S.W.3d
665, 675 (Tex. App.—Fort Worth 2014, pet. denied). But the rationale for this principle is that the
threat of violence is limited by the boundaries of the domestic relationship. See id. (finding that
the previous acts of violence “against people with whom [the perpetrator] had deep connections”
were not of the same character as the rape and murder of a “total stranger”); see also Ramirez v.
AHP Mut. Hous. Ass’n., Inc., No. 14–04–00159–CV, 2005 WL 425486, at *2 (Tex. App.—
Houston [14th Dist.] Feb. 24, 2005, no pet.) (mem. op.) (explaining that domestic violence
incidents are “not similar to a random attack from a stranger”).
But the Government concedes that Kelley’s threats of violence extended beyond his
domestic relationships. Plaintiffs’ injuries were not foreseeable, the Government argues, because
they were not “the victims of his domestic abuse or the targets of his verbal threats while he was
in the USAF.” Docket no. 256 at 30 (emphasis added). The targets of his verbal threats, however,
included not only Kelley’s ex-wife and her family, but also Security Forces (threatening to “go for
their guns”), police officers (“If the cops show up at my door, I will shoot them”), and other
members of his squadron (“My work is so lucky I do not have a shotgun because I would go in
there and shoot everyone.”). Docket no. 250, Ex. U-4 at 6; Ex. U-17 at 14, 21. The sweeping and
indiscriminate nature of these threats demonstrate that Kelley’s domestic violence conviction

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cannot be considered in isolation because the threat of violence was not limited to the context of
his close, personal relationships.
Likewise, testimony from “those closest to Kelley”—his mental health counselor, his
former roommate, and his wife—that they failed to anticipate the shooting does not establish that
the shooting was unforeseeable. Indeed, this formulation entirely mischaracterizes the
foreseeability standard. Foreseeability does not require anyone to predict “the precise manner in
which the injury will occur” Travis, 830 S.W.2d at 98. And, as Plaintiffs correctly note,
“[f]oreseeability is about looking forward, not backward—about what might have been reasonably
anticipated at the time of the negligent act or omission; not about considering what happened, in
hindsight.” Docket no. 264 at 20. Thus, whether any of Kelley’s confidants actually anticipated
that he would commit a mass shooting in the weeks before it occurred has no bearing on whether
the shooting was foreseeable. The relevant inquiry is whether, “at the time of [its] negligent
conduct,” the Government should have realized the likelihood that its failure to submit his
conviction and fingerprints “afforded an opportunity to [Kelley] to commit such a . . . crime.”
Nixon, 690 S.W.2d at 550 (quoting Restatement (Second) of Torts § 431 (1965)).
Still, the Court cannot conclude that the shooting was foreseeable as a matter of law. The
Government has presented sufficient evidence to create a genuine issue of material fact as to
foreseeability. Kelley’s widow testified that she noticed a significant deterioration in his mental
health in the last year of his life. Docket no. 259, Ex. J, Smith Dep. at 161. And there is evidence
that, in the summer of 2017, Kelley’s interest in mass shootings escalated from “research to
planning.” 14 See id., Ex. N. The Government has also brought forth some evidence to suggest

14

Plaintiffs assert that evidence of Kelley’s growing obsession with firearms and with mass shootings “only
reinforced the foreseeability of Kelley’s actions.” Docket no. 264 at 21. However, given that foreseeability

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that at some unspecified date, while Kelley was visiting his mother-in-law, Michelle Shields,
Kelley found some photos and/or videos of his wife, Danielle Smith, being sexually abused as a
young child by her adoptive father, Donald Brassfield. Brassfield was being prosecuted in the
25th District Court of Guadalupe County, Texas. 15 Id. Kelley’s wife was apparently going to be
called as a witness, and Kelley did not want her to testify and Kelley perhaps absconded with the
photos/videos he found in an effort to protect his family. Id. The record also indicates that Kelley
and Smith were having marital troubles, and that Kelley perceived Shields as interfering in their
marriage. Id. The Government implies Kelley was very upset by these developments, blamed
Shields for the sexual abuse Danielle suffered, and was aware that Shields was an active member
of the First Baptist Church of Sutherland Springs. Id. To the extent that the Government can
establish that Kelley’s conduct was motivated by some unforeseeable, external event or that, in the
years between Kelley’s conviction and the Sutherland Springs shooting, Kelley’s mental health
deteriorated so significantly as to render his actions unforeseeable, a reasonable trier of fact could
find that the shooting was unforeseeable. 16 Because resolving the foreseeability question will
require the factfinder to weigh the evidence and make credibility determinations, the Court cannot
grant summary judgment in favor of either party.

is judged at the time of the defendant’s negligent conduct, Kelley’s behavior after his discharge from the
USAF cannot serve as evidence of foreseeability.
15

Brassfield was convicted of aggravated sexual assault of a child on June 7, 2019, and sentenced to 50
years’ imprisonment in the custody of the Texas Department of Criminal Justice. Register of Actions, State
of Texas v. Brassfield, No. 16-1733-CR-A, http://judicial.co.guadalupe.tx.us/CaseDetail.aspx?CaseID=817192 (last visited Jan. 3, 2021).
16

On the other hand, any evidence establishing that Kelley intended the Sutherland Springs shooting as an
act of domestic violence—against Shields—would tend to further undermine the Government’s position
that no one could have anticipated the shooting based on Kelley’s history of domestic violence.

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B. Failure to Supervise and Failure to Train
Plaintiffs ask the Court to rule as a matter of law that the Government was negligent in its
failure to properly supervise and train USAF employees charged with collecting and submitting
fingerprints and criminal history to the FBI. To prevail on a claim for negligent supervision or
negligent training, a plaintiff is required to establish not only that the employer was negligent in
supervising or training the employee, “but also that the employee committed an actionable tort
against the plaintiff.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n.2 (Tex. 2010)
(quoting Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 384 (Tex. App.—Dallas 2005,
no pet.)). Indeed, Plaintiffs concede that “where an employee did not commit a wrongful act that
caused injury (i.e., where an employee was not negligent), the employer cannot have negligently
trained or supervised that employee.” Docket no. 264 at 28. Because the Court has determined
there is a genuine issue of material fact as to whether the Government’s negligence in operating
the background check-system caused Plaintiffs’ injuries, it follows that there is also a genuine
issue of fact as to whether the Government’s alleged failure to train or supervise its employees
caused those injuries, even if negligent training or supervision is established. Thus, the Court must
deny Plaintiffs’ motion for summary judgment on their claims for negligent supervision and
training.
Neither the Government’s motion for summary judgment nor its response to Plaintiffs’
motion for partial summary judgment addresses the substance of Plaintiffs’ claims for negligent
supervision and training. Instead, the Government argues that the Court should dispose of these
claims because they fall within the discretionary function exception to the FTCA and because they
are a “means to the same end” as their negligent undertaking claim.

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1. Discretionary Function Exception
The Government argues for the first time in its response to Plaintiffs’ motion for partial
summary judgment that the discretionary function exception bars Plaintiffs’ claims for negligent
training and negligent supervision. Docket no. 265 at 16−20. The discretionary function exception
provides that the Government’s waiver of sovereign immunity under the FTCA does not extend to
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, whether or not
the discretion involved be abused.” 28 U.S.C. § 2680(a). The Supreme Court discussed the
discretionary function exception in United States v. Gaubert, 499 U.S. 315 (1991):
The exception covers only acts that are discretionary in nature, acts that “involv[e]
an element of judgment or choice,” and “it is the nature of the conduct, rather than
the status of the actor” that governs whether the exception applies. The requirement
of judgment or choice is not satisfied if a “federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow,” because “the
employee has no rightful option but to adhere to the directive.”
Furthermore, even “assuming the challenged conduct involves an element of
judgment,” it remains to be decided “whether that judgment is of the kind that the
discretionary function exception was designed to shield.” Because the purpose of
the exception is to “prevent judicial ‘second-guessing’ of legislative and
administrative decisions grounded in social, economic, and political policy through
the medium of an action in tort,” when properly construed, the exception “protects
only governmental actions and decisions based on considerations of public policy.”
Id. at 322-23 (citations omitted). With regard to the violation of regulations, the Gaubert court
stated:
if 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 promulgation of the regulation. If the employee
violates the mandatory regulation, there will be no shelter from liability because
there is no room for choice and the action will be contrary to policy.
On the other hand, if a regulation allows the employee discretion, the very existence
of the regulation creates a strong presumption that a discretionary act authorized by

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the regulation involves consideration of the same policies which led to the
promulgation of the regulations.
Id. at 324. “The focus of the inquiry is not on the agent’s subjective intent in exercising the
discretion conferred by statute or regulation, but on the nature of the actions taken and on whether
they are susceptible to policy analysis.” Id. at 325.
Applying these principles, the Supreme Court has developed a two-step test to determine
whether the discretionary-function exception applies. St. Tammany Parish v. FEMA, 556 F.3d 307,
323 (5th Cir. 2009) (citing Berkovitz v. United States, 486 U.S. 531 (1988)). First, the court asks
whether the challenged actions were discretionary, or whether they were instead controlled by
mandatory statutes or regulations—in other words, whether the conduct is a “matter of choice for
the acting employee.” Id. The mere existence of a statute, regulation, or policy governing the
conduct of a federal employee does not render such conduct non-discretionary. See Gaubert, 499
U.S. at 324. Second, if the conduct involves such discretion, the court must determine whether it
is the kind of judgment that the discretionary function exception was designed to shield. Id. The
exception was designed to prevent judicial second-guessing of legislative and administrative
decisions grounded in social, economic, and political policy and thus protects only governmental
actions and decisions based on considerations of public policy. Id.
a. Legal Standard
Because the Government’s discretionary function argument is based on the applicability of
exceptions to the FTCA’s waiver of sovereign immunity, it implicates the Court’s subject matter
jurisdiction. See Lopez v. U.S. Immigr. & Customs Enf’t, 455 F. App’x 427, 431 (5th Cir. 2011).
A federal district court has a mandatory duty to dismiss claims over which it does not have subject
matter jurisdiction. Stanley v. Cent. Intel. Agency, 639 F.2d 1146, 1157 (5th Cir. 1981). In
evaluating whether it has subject matter jurisdiction, the court should not adjudicate the merits of

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the claim. Id. A party generally may raise a court’s lack of subject-matter jurisdiction at any stage
of the litigation. Fisher v. Univ. of Tex. at Austin, 758 F.3d 633, 639 (5th Cir. 2014).
The Government raises this argument for the first time in response to Plaintiffs’ motion for
partial summary judgment. The summary judgment standard is typically inappropriate for
evaluating questions of subject matter jurisdiction, however, because summary judgment involves
an adjudication on the merits. Stanley, 639 F.2d at 1157. Thus, as a preliminary matter, the Court
must identify the appropriate standard for assessing the Government’s jurisdictional challenges.
The Fifth Circuit has indicated that, where issues of fact are central both to subject matter
jurisdiction and the claim on the merits, the trial court should assume jurisdiction and proceed to
the merits under a Rule 12(b)(6) or Rule 56 standard. See Montez v. Dept. of the Navy, 392 F.3d
147 (5th Cir. 2004); Tindall v. United States, 901 F.2d 53 (5th Cir. 1990). However, it has also
held that the merits and the jurisdictional issue under § 2680(a), the discretionary function
exception, are not so intertwined as to prevent separate consideration and decision of the
jurisdictional issue. Hix v. U.S. Army Corps of Eng’rs, 155 Fed. App’x 121, 128 n.8 (5th Cir.
2005); Ford v. Am. Motors Corp., 770 F.2d 465, 468 (5th Cir. 1985) (“The merits and the
jurisdictional issue were not so intermeshed as to prevent the separate consideration and decision
of the jurisdiction question, albeit that decision is based in large measure on facts relevant to the
merits.”).
The evaluation of the discretionary function exception, then, should be conducted under
the 12(b)(1) standard as long as it does not require resolving disputed facts that overlap with the
merits. E.g., Lopez, 455 F. App’x at 431 (noting that district court converted United States’ motion
for summary judgment to a Rule 12(b)(1) motion); Patel v. United States, 398 F. App’x 22, at *5
(5th Cir. 2010) (in reviewing discretionary function exception dismissal, stating that “[the

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plaintiff’s] complaint, as supplemented by undisputed facts and resolved disputed facts, may be
considered in a dismissal of a complaint for lack of subject matter jurisdiction.”). Because the
Court finds that the jurisdictional issue is not intertwined with the merits of Plaintiffs’ claims for
negligent training and supervision, the Government’s attack on the Court’s jurisdiction should be
decided under the standard applicable to motions under Rule 12(b)(1) rather than motions for
summary judgment.
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). Typically, 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). However, the Supreme Court has cautioned that “this principle is ‘unhelpful’ in
the FTCA context, where ‘unduly generous interpretations of the exceptions run the risk of
defeating the central purpose of the statute.’” Dolan v. U.S. Postal Serv., 546 U.S. 481, 491–92
(2006) (quoting Kosak v. United States, 465 U.S. 848, 853 n.9 (1984)) (citations omitted). Thus,
the proper objective of a court attempting to construe one of the exceptions to the FTCA’s
sweeping waiver of immunity is to identify ‘those circumstances which are within the words and
reason of the exception’—no less and no more.” Id.
In ruling on a motion under Rule 12(b)(1), the Court “has the power to dismiss for lack of
subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.” United States v.
Freeman, 556 F.3d 326, 334 (5th Cir. 2009). “Because at issue in a factual 12(b)(1) motion is the

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trial court’s jurisdiction—its very power to hear the case—there is substantial authority that the
trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the
case.” Id. at 412–13. In short, no presumptive truthfulness attaches to a plaintiff’s allegations, and
the existence of disputed material facts will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims. Id. at 413. Further, materials such as affidavits and regulations
can be considered when relevant to the issue of jurisdiction. Poindexter v. United States, 777 F.2d
231 (5th Cir. 1985).
While the plaintiff bears the burden of showing an unequivocal waiver of sovereign
immunity, it remains an open question which party retains the ultimate burden of proof on the
applicability of the discretionary function exception. St. Tammany Parish v. FEMA, 556 F.3d 307,
315 n.3 (5th Cir. 2009). Regardless of which party bears the ultimate burden of proof, at the
pleading stage, the plaintiff must allege a claim that is facially outside the exception. Id. At the
summary judgment stage, the plaintiff must submit evidence that the claim is facially outside the
exception. Morales v. United States, 371 F. App’x 528, 532 (5th Cir. 2010). In addition, the
plaintiff must establish a plausible causal relationship between the breach of the non-discretionary
duty and the plaintiff's injury. Lopez, 455 Fed. App’x at 433 n.1.
b. Analysis
Courts in the Fifth Circuit have consistently held that the Government’s employment
decisions are the kind of judgment that the discretionary function exception was designed to shield.
See, e.g., Dorsey v. Relf, No. 4:12-CV-021-A, 2013 WL 791604, at *5 (N.D. Tex. Mar. 4, 2013)
(“Decisions regarding hiring, supervising, training, and retaining employees involve many public
policy considerations and matters of judgment and choice”), aff’d, 559 F. App’x 401 (5th Cir.
2014); Walding v. United States, 955 F. Supp. 2d 759, 802 (W.D. Tex. 2013) (“Courts have . . .

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generally held that decisions relating to hiring, training, and supervision of employees” are
shielded by the discretionary function exception). Thus, while the discretionary function analysis
involves a two-step test, in this case, the first step—assessing whether the challenged actions were
discretionary—will be outcome-determinative.
Plaintiff’s claims for negligent supervision and training generally do not suffer from the
typical defect involved in jurisdictional challenges based on the discretionary function exception—
the absence of a federal statute, regulation, or policy governing the Government’s conduct. Indeed,
the DoD and USAF have established comprehensive and detailed instructions for carrying out their
responsibilities under the Brady Act. Virtually all of the instructions promulgated by the USAF
include a bolded, capitalized heading indicating that compliance with the publication is
“mandatory.” See, e.g., AFOSI Manual 71-121, docket no. 250, Ex. U-2 at 1. But the relevant
question is not whether compliance with the USAF’s directives is mandatory—it is whether the
directives afford employees a choice about the manner in which they carry out their
responsibilities. Thus, the Court must analyze each of the regulatory provisions Plaintiffs invoke
in support of their claims for negligent supervision and training.
i. Negligent Supervision
Plaintiffs allege that mandatory regulations required review of Kelley’s file “at every level
of the chain of command” in the AFOSI. Docket no. 249 at 27. The Government agrees that the
ASOFI supervisory duties are governed by USAF directives, but argues that Plaintiffs’ claim for
negligent supervision is nonetheless barred because these instructions “afford the USAF personnel
significant discretion in the precise manner in which they carry out supervisory tasks.” Docket no.
265 at 17. The parties address several levels of supervision: unit leadership at Detachment 225,

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the Staff Judge Advocates (“SJA”) office, the Second Field Investigations Region (“Region 2”),
and the Headquarters AFOSI (“HQ AFOSI”).
First, pursuant to AFOSI Manual 71-121, AFOSI unit leadership 17 is required to review
both the electronic records of investigative activities in the “12MS” system and the physical, record
copy of the investigative files for sufficiency and data integrity “from the date the case is opened
until it is forwarded to Headquarters AFOSI for retention.” See docket no. 250, Ex. U-2 ¶ 4.24.1.3.
Each investigative file must be reviewed on a monthly basis, and the manual requires AFOSI
leadership to use a comprehensive checklist to perform the review. Id. ¶ 4.24.1.3. The checklist
includes several items requiring leadership to review the fingerprints and final disposition report
in the physical file and confirm the submission of fingerprints to the FBI. See id., Ex. U-1 at 4, 7.
The manual sets forth specific instructions about how unit leaders should document their review,
directing them to include only the reviewer’s name and the date of the file review, and prohibiting
reviewers from actually filling out the checklist in the folder or adding “comments or
recommendations that will be subject to legal discovery.” Id., Ex. U-2 ¶ 4.24.4.
The manual separately requires unit leadership to ensure that subordinates “obtain and
validate subject’s fingerprints; … [and] submit subject’s fingerprints [and] dispositions to the
FBI…” Id., Ex. U-2 ¶ 5.14.1. Before closing a file for submission to HQ AFOSI, AFOSI unit
leadership must conduct another review of the file, this time using a closed-investigation checklist,
which also requires reviewing fingerprints and the final disposition. The Court finds that AFOSI
Manual 71-121 does not afford AFOSI unit leaders discretion as to whether, when, or how they
should conduct these supervisory reviews of investigative case files. Thus, their conduct falls
outside of the discretionary function exception and within the Court’s subject matter jurisdiction.

17

The term “unit leadership” is used to describe commanders, SAICs, and directors.

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Furthermore, given that Detachment 225 unit leaders were required to confirm that Kelley’s
information had been submitted to the FBI before closing the file, the Court finds that Plaintiffs
have established a plausible causal relationship between the breach of this non-discretionary duty
and their injuries.
Plaintiffs argue that Staff Judge Advocates have mandatory supervisory responsibilities
over the AFOSI agents investigating their cases. But the regulations outlining the relationship
between SJAs and AFOSI agents—AFOSI Manual 71-121 and Air Force Instruction 51-201 (“AFI
51-201”)—grant SJAs broad discretion to determine how to support their investigative teams. Both
instructions, for example, indicate that SJAs and AFOSI agents “must develop a collaborative
relationship focused on integrating investigative efforts and the legal process.” Docket no. 250,
Ex. U-2 ¶ 1.5; id., Ex. U-3 ¶ 13.26. AFI 51-201 further provides that SJAs shall “establish local
procedures” and “work” and “coordinate” with AFOSI case agents. Id., Ex. U-3 ¶¶ 13.26, 13.29.
SJAs should attend AFOSI case review meetings “[a]s appropriate.” Id. ¶ 13.30. That the
instructions leave open the question of how to “collaborate” and “work” and “coordinate” with
AFOSI is evidence of discretion. Given their role as legal advisors during the investigative process,
this discretion clearly involves weighing the kind of policy considerations that the discretionary
function exception was designed to shield.
Plaintiffs next assert that the Second Field Investigations Region (“Region 2”), which
supervises AFOSI Detachment 225, was negligent in failing to review Kelley’s case file to
determine whether his fingerprints and criminal history had been submitted to the FBI. AFOSI
Manual 71-121 directs Region reviewers to concentrate their file review efforts on “significant
investigations” in their regions. Id., Ex. U-2 ¶ 4.25. “Significant investigations” are defined as
“those investigations that, if conducted poorly, affect the [USAF]’s ability to preserve good order

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and discipline, deter and neutralize internal and external threats, and bring unfavorable attention
to the command.” Id. However, under AFISO Manual 90-101, Region 2 commanders are afforded
significant discretion in determining which investigative files to review. See docket no. 265, Ex.
SS ¶ 2.2.2 (“[Regions] may design their own processes for identifying, reviewing, and tracking
high visibility investigations.”). Plaintiffs’ argument that the Kelley investigation should have been
considered a significant investigation addresses the substance of their claim that Region 2 failed
to exercise reasonable care in performing its supervisory duties. The Court cannot reach the merits
of the claim, however, because the relevant AFISO directives fail to demonstrate that Region 2
had a non-discretionary duty to review Kelley’s file.
After an investigative file is closed, the record copy is sent to HQ AFOSI for archiving.
AFOSI Manual 71-121 explains that the goal of HQ AFOSI is “to identify investigative
deficiencies and to confirm data integrity through the systematic review of archived Case File
investigations.” Docket no. 250, Ex. U-2 ¶ 4.25.2. The procedure for HQ AFOSI’s systemic review
of closed case files is outlined in AFISO Manual 90-101. Docket no. 265, Ex. SS. Once a week, a
member of the HQ Case Review Team (“CRT”) must randomly select a number of case files from
the newly closed investigations and, using the Closed Case Review Checklist, review the record
copy of the file and the 12MS entry for discrepancies. Id. ¶ 2.1. Unlike Region 2 case review, the
HQ CRT review process is non-discretionary. AFISO Manual 90-101 prescribes a specific course
of action that the HQ CRT must follow in reviewing case files. 18

18

That the files slated for weekly review must be “randomly” selected precludes the possibility that the
selection of files can involve policy considerations. Indeed, the randomness requirement itself is the result
of a policy consideration: “The goal of randomly selecting [case files] is to achieve a measure of confidence
that identified issues and problems are a reliable indicator of broader problems throughout the command.”
Docket no. 265, Ex. SS ¶ 2.1.

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Despite the Court’s finding that the HQ CRT’s review process is non-discretionary,
however, Plaintiffs have failed to demonstrate a plausible causal relationship between the breach
of the non-discretionary duty and their injuries. See Lopez, 455 Fed. App’x at 433 n.1. First, as the
Government notes, because files are randomly selected for review, the HQ CRT had no obligation
to review all case files, or any case file in particular. Thus, the HQ CRT’s failure to review Kelley’s
file cannot constitute a breach of duty without a further showing that reviewers violated the
procedures set forth in AFOSI Manual 90-101. Second, the regulations grant the HQ CRT
discretion in determining the appropriate remedy for deficiencies they identify during their review:
Identified deficiencies may be remedied through a variety of avenues to include
working with the [AFOSI training program] to target specific training deficiencies,
changes or clarification in instructions or manuals, and modifications and changes
in procedural processes.
Docket no. 265, Ex. SS ¶ 2.1. Thus, even if the HQ CRT had reviewed Kelley’s file and recognized
that his fingerprints and final disposition had not been submitted to the FBI, it would not have been
required to correct the problem, at least under the terms of AFOSI Manual 90-101. Id.
Plaintiffs argue that the Government’s negligent operation of the DIBRS—its failure to
consistently submit information to the DIBRS and its failure to integrate the DIBRS and NICS—
implicates the supervisory responsibilities of the DoD and the USAF. Docket no. 249 at 16. The
“Secretaries of the Military Departments and the Heads of the Other DoD Components” are
required under DoD Directive 7730.47 to “[e]nsure compliance with this Directive and establish
policies and procedures to implement the DIBRS.” Docket no. 250, Ex. U-6 at 32 ¶¶ 5.2−5.2.1.
But this mandate fails to offer any specific guidance as to how the Secretaries of the Military
Departments and the Heads of the DoD components should go about “ensuring compliance” and
“establish[ing] policies and procedures.” In other words, it affords the DoD and the USAF the
discretion to determine the precise manner in which they ensure compliance with their data
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reporting obligations. The Government notes that because DIBRS was not capable of submitting
the required data to the NICS, the DoD submitted such information through the III, which was
specifically designed for this purpose. The choice to create a new database rather than overhaul an
existing database clearly involves the kind of policy considerations the discretionary function
exception is meant to protect.
Plaintiffs appropriately limit their claim for negligent supervision of the DIBRS to
supervisory functions—ensuring compliance with directives and establishing policies and
procedures. However, some USAF supervisors, including SJAs and HQ AFOSI, also have direct
DIBRS reporting responsibilities. See id. at 60–61 ¶¶ 1(a)(2)(b), (d); id., Ex. U-3 at 3. DoD Manual
7730.47-M indicates that the obligation to provide data to the DIBRS is non-discretionary: “[l]egal
organizations with DIBRS reporting responsibilities shall forward data to the functional
consolidating activity on a monthly basis.” Id., Ex. U-6 at 57 (emphasis added). Even if Plaintiffs
could establish that the Government was negligent with respect to its DIBRS reporting obligations,
however, they have failed to demonstrate a plausible causal relationship between the breach of the
non-discretionary duty and their injuries. See Lopez, 455 Fed. App’x at 433 n.1. Because the
DIBRS and the NICS are incompatible, the USAF’s failure to submit data to the DIBRS (and the
DoD’s subsequent failure to forward the DIBRS data to the FBI) cannot have been the proximate
cause of the failed background check. Thus, even if the Government undertook to provide Brady
information to the NICS through the DIBRS—and the Court holds concludes that it did not—the
Government’s conduct in operating the DIBRS falls within the discretionary function exception to
the FTCA.
In sum, the Court holds that Plaintiffs’ claim for negligent supervision survives the
Government’s jurisdictional attack to the extent that it stems from the supervisory conduct of

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AFOSI Detachment 225 unit leadership. Otherwise, it falls outside of the Court’s subject matter
jurisdiction.
ii. Negligent Training
Plaintiffs’ argument that the Government failed to train ASOFI and Security Forces agents
is fundamentally outcome oriented: because agents were able to complete their training without an
understanding of their mandatory duty to submit Kelley’s fingerprints and final disposition to the
FBI, their training must have been inadequate. See docket no. 249 at 35. But this circumstantial
evidence of negligent training is insufficient to overcome the Government’s jurisdictional attack
because the discretionary function exception is inherently process oriented. “The relevant inquiry
is whether the policy specifically addresses how an official must confront a given situation.” See
Walding, 955 F. Supp. 2d at 780 (citing Lopez, 455 Fed. App’x at 433) (emphasis added). “A
policy may direct general policy goals, such as determining compliance with certain guidelines,
but when the policy fails to prescribe ‘specific direction’ as to what course of action an employee
must follow, it generally fails to establish a non-discretionary duty.” Id.
The collection and submission of fingerprints and criminal history to the FBI has been a
“core task” within the AFOSI Specialty Training Standard (“STS”) since 2000. Docket no. 249,
Ex. A, Col. Poorman Dep. Tr. at 182:10–183:6; docket no. 265, Ex. VV at USA00025415. The
STS describes the minimum qualifications set forth in Career Field Education and Training Plans
(“CFETPs”), 19 which serve as “a road map for career progression” for each career field within the
USAF. Id. Plaintiffs argue that because this core task is a minimum qualification, training students
how to collect and submit Brady Act information is non-discretionary.

19

Air Force Instruction 36-2201 (“AFI 36-2201”) sets forth the minimum requirements for USAF training
programs and includes detailed instructions for developing CFETPs. Docket no. 250, Ex. U-3 at 23−25.
Because Plaintiffs do not allege that the Government violated AFI 36-2201 in developing the AFOSI
training plan, however, the Court does not address its requirements.

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The Fifth Circuit rejected a similar argument in Lopez v. United States Immigration &
Customs Enforcement. 455 Fed App’x 427 (5th Cir. 2011). There, the plaintiff argued that the
United States Marshals Service (“USMS”) breached its own non-discretionary policies in failing
to inspect a contract facility housing those in federal custody and failing to oversee the facility's
medical care. Id. at 432. The USMS directives stated that an institution needed to be inspected
before the award of an intergovernmental agreement and annually thereafter. Another directive
required the agency to conduct an initial on-site inspection to determine the facility’s level of
compliance with USMS inspection guidelines. The Court noted that the directives “provided no
guidance, or even mention, on a variety of topics relating to this inspection obligation.” Id. at 433.
“Such issues include whether the grant of an IGA was to be contingent on a specific level of
compliance, what minimum ‘level of compliance’ . . . a facility had to meet, and what remedial
actions to take (if any) in the event of insufficient compliance with USMS guidelines.” Id. The
Court concluded that the decisions about how to conduct an inspection “were imbued with policy
and discretionary factors” and the USMS inspection directive did not impose a non-discretionary
duty to inspect the facility. Id.
Here, the STS for the Office of Special Investigations requires the USAF to train students
in the collection and submission of fingerprints and criminal history to the FBI, but does not offer
any guidance on how to conduct the training. Nor does it indicate how the USAF should measure
students’ proficiency with respect to this “core task,” the level of proficiency required before a
student can graduate, or what remedial actions to take in the event a student cannot demonstrate
proficiency. See id. That the STS leaves open the question of how to conduct fingerprint training
is evidence of choice. The Court finds that the STS does not impose a non-discretionary duty to
train AFOSI students to collect and submit fingerprints and final dispositions to the FBI. As in

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Lopez, the decisions about how to develop and implement a training program for members of the
USAF are “imbued with policy and discretionary factors.” Id.; see also Burkhart v. Wash. Metro.
Area Transit Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997) (“The extent of training with which to
provide employees requires consideration of fiscal constraints, public safety, the complexity of the
task involved, the degree of harm a wayward employee might cause, and the extent to which
employees have deviated from accepted norms in the past. Such decisions are surely among those
involving the exercise of political, social, or economic judgment.”).
Plaintiffs also argue that Security Forces training was inadequate. The USAF Security
Forces train at the USAF Security Forces Academy at Joint Base San Antonio-Lackland, Texas,
and later receive on-the-job training from their squadron commanders. Plaintiffs acknowledge that
“[b]y design, Air Force Security Forces [Academy] training does not include training on collecting
and submitting fingerprints or final dispositions to the FBI.” Docket no. 249 at 39. Thus, the agents
of the 49th Security Forces Squadron responsible for sending Kelley’s fingerprints to the FBI relied
on their Commander for training on fingerprint procedures. Plaintiffs fail to identify any statute,
regulation, or policy that governs how squadron commanders should go about training new agents
on fingerprinting, or any other topic. 20 Instead, Plaintiffs cite the Commander’s limited awareness
of Security Forces’ fingerprinting responsibilities and procedures as evidence that his training was
insufficient.
There is some support for the position that the Commander’s poor grasp of the USAF’s
reporting obligations removes his conduct from the ambit of the discretionary function exception.
See, e.g., Dinger v. Hornbeck Offshore Servs., Inc., 968 F. Supp. 1185, 1188 (S.D. Tex. 1997)
(“There can be no element of discretion or choice when there is nothing from which to choose.

20

Notably, Plaintiffs do not address whether training in fingerprint collection and submission procedures
appears on the Security Forces CFETP.

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The Court finds that the inspector’s failure to know about a potentially applicable regulation takes
the inspector’s conduct out of the discretionary function exception.”). The Fifth Circuit recently
rejected this argument, however, explaining that while an official’s “lack of familiarity with the
policies may be strong evidence of a breached duty, such evidence does not affect the inquiry at
hand: whether the challenged actions contained an element of judgment.” Gonzalez v. United
States, 851 F.3d 538, 546–47 (5th Cir. 2017). Thus, such arguments “better inform the merits of
her underlying claims, rather than whether the discretionary function exception applies.” Id.
There is ample evidence that the Security Forces was negligent in failing to train agents on
fingerprint submission procedures. The 2017 IG Report concluded that the Commander’s on-thejob training was “insufficient and it was not based on any established curriculum or policy
requirements.” See docket no. 250, Ex. U-14 at 15. But the discretionary function exception applies
“whether or not the discretion be abused.” 28 U.S.C. § 2680(a). The Court cannot reach the merits
of Plaintiffs’ claim for negligent training because it is barred by the discretionary function
exception. By design, the Commander of the 49th Security Forces Squadron exercises broad
discretion in determining how to train his agents at HAFB. As an employment-related decision,
this is precisely the type of choice the discretionary function exception was designed to shield. See
Walding, 955 F. Supp. 2d at 802. Accordingly, Plaintiffs’ claim for negligent training is dismissed
for lack of subject matter jurisdiction.
2. Respondeat Superior Admission
The Government argues that Plaintiffs’ negligent undertaking claim precludes recovery on
their claims for negligent supervision and training. Because Plaintiffs’ claim for negligent training
must be dismissed for lack of subject matter jurisdiction, the Court will only address the
Government’s argument as it applies to the surviving claim for negligent supervision. The Court

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finds that both the unique posture of claims brought under the FTCA and practical considerations
counsel against dismissal of Plaintiffs’ claim for negligent supervision.
Claims against an employer for negligently hiring, supervising, training, or retaining an
employee are based on direct liability, not on vicarious liability. Soon Phat, L.P. v. Alvarado, 396
S.W.3d 78, 100−01 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). An employer has a duty
to adequately hire, train, and supervise employees and “[t]he negligent performance of those duties
may impose liability on an employer if the complainant’s injuries are the result of the employer’s
failure to take reasonable precautions to protect the complainant from misconduct of its
employees.” Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 459 (Tex. App.—Tyler 1996, no pet.).
However, Texas courts have generally acknowledged that “a direct liability claim . . . and a claim
resulting in vicarious liability under respondeat superior could be mutually exclusive modes of
recovery” where an employer stipulates to vicarious liability. Williams v. McCollister, 671 F.
Supp. 2d 884, 888 (S.D. Tex. 2009) (citing Estate of Arrington v. Fields, 578 S.W.2d 173, 178–79
(Tex. Civ. App.—Tyler 1979, writ ref’d n.r.e.) and Rosell v. Cent. W. Motor Stages, Inc., 89
S.W.3d 643, 654 (Tex. App.—Dallas 2002, pet. denied)). Claims of negligent supervision and
claims of ordinary negligence under a theory of vicarious liability are mutually exclusive where
they are “means to the same end.” Knight v. Cooper, No. 5:17-CV-234-OLG, 2018 WL 7350947,
at *1 (W.D. Tex. June 1, 2018). Accordingly, “regardless of any allegation of fault on the part of
the employer . . . . if vicarious liability is not contested, the employee’s competence and the
employer’s own negligence in hiring, failing to properly train, or negligently supervising become
irrelevant, as long as a plaintiff pleads ordinary negligence.” Williams, 671 F. Supp. 2d at 888.
This principle, known in some jurisdictions as the “respondeat superior admission” rule
and in others as the “McHaffie rule,” is “intensely pragmatic.” Grimes v. Combined Transp., Inc.,

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No. 3:05-CV-00461-ECR-RAM, 2007 WL 9780634, at *5 (D. Nev. Oct. 3, 2007) (applying rule
derived from McHaffie v. Bunch, 891 S.W. 2d 822 (Mo. 1995)). Though no Texas court appears
to have explicitly endorsed McHaffie, its reasoning is instructive. The Missouri Supreme Court
held in McHaffie that the trial court had erred in admitting evidence of negligent hiring and
negligent entrustment after the defendant-employer had already admitted that its truck driver was
an employee working in the scope of his employment at the time of the accident. McHaffie, 891
S.W.2d at 827. The court’s primary concern was judicial economy:
If all of the theories for attaching liability to one person for the negligence of
another were recognized and all pleaded in one case where the imputation of
negligence is admitted, the evidence laboriously submitted to establish other
theories serves no real purpose. The energy and time of courts and litigants is
unnecessarily expended.
Id. at 826. The court also considered the prejudicial effect of admitting such evidence given that
claims for negligent entrustment and negligent hiring required evidence that the employer “knew
or should have known” of the employee’s “incompetence” or “a particular dangerous proclivity .
. . followed by employee misconduct.” Id. at 825. In short, the direct liability causes of action
added nothing to the plaintiff’s case other than the possibility that the jury would consider character
evidence for an improper purpose. See Grimes, 2007 WL 9780634, at *4.
McHaffie’s reasoning does not map neatly onto claims brought under the FTCA because,
as both parties note, “[a]ll FTCA liability is respondeat superior liability.” Johnson v. Sawyer, 47
F.3d 716, 730 (5th Cir. 1995). Here, both the USAF agents responsible for NICS submissions and
their supervisors are employees of the United States. The purpose of Plaintiffs’ claim for negligent
supervision is not to impute the liability of USAF special agents to their supervisors, which the
Court agrees would be a waste of judicial resources. The purpose of the negligent supervision
claim is just the opposite—to determine the amount of harm that can be independently attributed

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to USAF leadership’s failure to exercise reasonable care in supervising its agents. Thus, Plaintiffs’
claim for negligent supervision is not a “means to the same end” as respondeat superior liability.
Unlike cases involving negligent entrustment, hiring, and retention, there is no risk that
allowing Plaintiffs’ claim for negligent supervision to proceed to trial will prejudice the
Government by introducing improper character evidence. Negligent supervision claims do not rely
on character evidence. Indeed, because the Court has already determined that the Government
undertook to operate a national background check system—and adequate supervision is a
component of that undertaking—both claims will likely rely on the very same evidence. Thus,
permitting both claims to go to trial will not require the trier of fact to consider additional,
“laboriously submitted evidence” in support of the negligent supervision claim or unnecessarily
expend the Court’s time and energy. McHaffie, 891 S.W.2d at 826.
In fact, preserving Plaintiffs’ claim for negligent supervision will better serve the interest
of judicial economy than dismissal in this case because it will allow the factfinder to separately
consider the amount of harm, if any, that can be attributed to USAF leaders’ failure to supervise
the agents responsible for FBI submissions. This approach will assist the trier of fact in
apportioning liability among the Government—including employees “responsible for providing
information” to NICS and their supervisors—and the twelve responsible third parties designated
by the Government—Devin Kelley, Academy, and John Does 1–10. Docket no. 160. See Lorio v.
Cartwright, 768 F. Supp. 658, 660 (N.D. Ill. 1991) (respondeat superior admission rule loses its
force when comparative negligence is at issue); see also Liberty Ins. Corp. v. Caterpillar, Inc., No.
SA–13–CV–83–XR, 2013 WL 3166616, at *1–2 (W.D. Tex. June 20, 2013) (failure to train or
supervise used as a basis for designating responsible third party).

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Addressing the extent to which Plaintiffs’ injuries were independently caused by the
Government’s negligent supervision at trial will also have advantages in the event of an appeal.
The Government has already expressed its intent to appeal the Court’s ruling that Section 922(t)(6)
of the Brady Act does not confer immunity on the United States. See docket no. 107. But, as the
Court recognized in its order denying the Government’s motion to dismiss, even if the United
States could avail itself of its employees’ immunities, Section 922(t)(6) only applies to those
federal employees “responsible for providing information” to the NICS. Docket no. 59 at 26. There
are many federal employees, including USAF leadership, whose conduct is implicated in the
Government’s undertaking to operate the background check system who were not “responsible for
providing information” to the NICS. In the event that Plaintiffs prevail at trial and the Fifth Circuit
disagrees with the Court’s ruling on Brady immunity, reapportioning liability will be much easier
if the factfinder has already considered the extent to which Plaintiffs’ injuries were independently
caused by the Government’s negligent supervision.
In light of these practical considerations and the single-party nature of claims brought under
the FTCA, the Court declines to dismiss Plaintiffs’ claim for negligent supervision under the
respondeat superior admission rule.
C. Brady Act Immunity
The Government reasserts its position that Plaintiffs’ claims are barred by the immunity
provision of the Brady Act. Docket no. 256 at 33-34; see 18 U.S.C. § 922(t)(6). The Court
previously rejected this argument in its order on the Government’s motion to dismiss. Docket no.
59 at 20−29. Because the Government fails to present any facts or law that were unavailable when
the Court ruled on the motion to dismiss, the Court declines the invitation to reconsider its earlier
conclusions concerning Brady Act immunity.

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CONCLUSION
As explained herein, the Court finds that Plaintiffs have provided legally sufficient
evidence to overcome the Government’s motion for summary judgment. The Court finds as a
matter of law that, in undertaking to establish and operate a complex national background-check
system, the Government assumed the duty to operate the system with due care and that the
Government breached that duty. However, because there are genuine issues of fact as to whether
the Government’s negligence increased the risk of harm and proximately caused Plaintiffs’
injuries, Plaintiffs are not entitled to judgment as a matter of law. Plaintiffs’ claim of negligent
training is dismissed because it is barred by the discretionary function exception. The surviving
claims for negligent undertaking and negligent supervision remain to be tried. Plaintiff’s negligent
supervision claim is limited to Detachment 225 leadership’s failure to supervise the individuals
responsible for collecting and submitting Kelley’s fingerprints and final disposition to the FBI.
Accordingly, it is ORDERED that:
The Government’s Motion for Summary Judgment (docket no. 256) is GRANTED IN
PART and DENIED IN PART; and
Plaintiff’s Motion for Partial Summary Judgment (docket no. 249) is GRANTED IN
PART and DENIED IN PART; and
The Reynolds Plaintiffs’ Motion for Partial Summary Judgment (docket no. 308) is
DENIED.
It is so ORDERED.
SIGNED this 6th day of January, 2021.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

58