008 - MTD & Memo

Case 3:17cv-02692M Document 8 Filed 01/11/18 Page 1 of 2 PagelD 73
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

BRUCE JOINER, )
Plajntiff )
)
V.
Case No. 3:1 7-cv-02692
UNITED STATES OF AMERICA, )
)
Defendant. )
)
, I,, - -1 ... I . * - - - .- . . - 4-- - - - ~ .1 , .~, 36. - I - - - ~)
DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS FOR

LACK OF SUBJECT MATTER JURISDICTION OR,
IN THE ALTERNATIVE, FAILURE TO STATE A CLAIM
Defendant United States of America respectfully moves this Court pursuant to Rule
12(b)(1.) of the Federal Rules of Civil Procedure to dismiss this action with prejudice for lack of
subject matter jurisdiction, or, in the alternative, pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure for failure to state a claim. The grounds for dismissal are set forth in the
accompanying memorandum in support. In addition, Dctbndant United States is filing an
appendix in support of this motion to dismiss.
Date: January 11, 2018 Respectfully submitted,
CHAD READLER
Principal Deputy Assistant Attorney General
JAMES a TOUHEY, JR.

Director, Torts Branch
Civil Division
RUPERT M. MITSCII
Assistant Director, Torts Branch
Civil Division
Defendant United States' Motion to Dismiss 1

Case 3:17-cv-02692-M Document 8 Filed 01/11/18 Page 2 of 2 PagelD 74
/s! Phil Mac\Villiams

PHILIP D. MACWILLIAMS
Trial Attorney
E-mail: phil.macwilliamsausdoj.g
U.S. Department of Justice
Civil Division, Torts Branch
1331 Pennsylvania Ave., NW
Room 8080N
Washington, DC 20004
Telephone: (202) 616-4285
Facsimile: (202) 616-5200
Attorneys for the United States of America
CERTIFICATE OF SERVICE
I hereby certify that on January 11, 2018, 1 caused to be served upon the following
counsel a true and correct copy of the United States' Motion to Dismiss for Lack of Subject
Matter Jurisdiction or, In the Alternative. Failure to State a Claim, the Memorandum In Support,
and the Appendix via ECF filing:
Trenton Roberts
Roberts & Willie, PLLC
2000 S. Dairy Ashford, Suite 390
Houston, Texas 77077
Phone: (832) 328-7345
Email: trentonc&rohei handwil I Ic corn
Attorney for Plaintiff
/s/ Phil MacWilliams

Defendant United States' Motion to Dismiss- 2

Case 3:17-cv-02692M Document 9 Filed 01/11/18 Page 1 of 34 PagelD 76
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
BRUCE JOINER,
Plaintiff,
V.
) Case No. 3:17-cv02692
UNITED STATES OF AMERICA, )
)
Defendant. )
)
)
DEFENDANT UNITED STATES OF AMERICA'S MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION OR,
,IN THE ALTERNATIVE, FAILURE TO STATE A CLAIM
CHAD READLER
Acting Assistant Attorney General
Civil Division
JAMES G. TOUHEY, JR.

Director, Torts Branch
Civil Division
RUPERT M. MITSCH
Assistant Director, Tarts Branch
Civil Division
Trial Attorney, Torts Branch
Civil Division

Case 3:17-cv-02692-M Document 9 Filed 01/11118 Page 3 of 34 PagelD 78
TABLE OF AUTHORITIES
Cases
A.H. Belo Coip. v. Corcoran,

52 S.W.3d 375 (Tex. Ct. App. 2001) 24
Aiii1ar v. ('has/a in,

923 S.W.2d 740 (Tex. App. 1996). 24
ALX El Dorado, Inc. v. United States,

36 F.3d 409 (5th Cir. 1994)
Ainato v. United States,

549 F. Supp. 863 (D.N.J. 1982) 17
Andrade i Ghojnacki,
65 F. Supp. 2d 431 (W.D. Tex, 1999
Ashcmfl V. Iqba/,
556 U.S. 662 (2009) 9
Ashley v. United States,

No. 3:14-CV-2654, 2016 WL 5791547 (N.D. Tex. Oct. 14, 2016)
Bell Au. Corp. V. Twoinblv,

550 U.S. 544 (2007)
Berkovit. v. United States,,

486 U.S. 531 (1988) Ii
Brva,i v. United States,

524 U.S. 184 (1998) 19
Buchanan i United States,

915 F.2d 969 (5th Cit. 1990 12
('enteq Rca/tv, Inc. v. Siegler,

899 S.W.2d 195 (Tex. 1995)
Collins v. Morgan Stanley Dean Witter,

224 F.3d 496 (5th Cit. 2000) ... 9
Crenshaw v. United States,

959 F. Supp. 399 (S.D. Tex. 1999) 15
Memorandum in Support of Motion to Dismiss ii

Case 3:17cv02692M Document 9 Filed 01/11118 Page 4 of 34 PagelD 79
uvillier v. Taylor.
503 F.3d 397 (5th Cir. 2007)
Dale/tue v. United States,

346 U.S. 15(1953)
Deuser v. Vecera,
139 F.3d 1190 (8th Cir. 1998) 17
Drake r. Panama Canal Gomm *1?.,

907 F.2d 532 (5th Cir. 1990)
Faneca v, United States,

332 F.2d 872 (5th Cr. 1964: 3
FDIC v Meyer,
510U.S.471 (1994) 10,23.25
Fin. Acquisition Paiineis [P. v. Blackweil,

440 F.3d 278 (5th Cir. 2006)....... 8
Flatninia v. United Slates,

739 F.2d 202 (5th Cir. 1984) ...17
Flax v. United States,

847 F. Supp. 1183 (D.N.J. 1994
Frigard v. United States,

862 F.2d 201 (9th Or. 1988) ...................................
Georgia Gas. & Stir. Co. v. United Slates,

823 F.2d 260 (8th Cir. 1987) 13.14
Gonalez v. United States,

814 F.3d 1022 (9th Cir. 2016) ..., 18
Greater Houston Transp. Co. v. Phillips,

801 S W 2d 523 (Tex. 1990)
Greater Houston Transp. Co.,

899 S.W.2d
Huddleston v. United Stales,

415 U.S. 814 (1974) 19
Memorandum in Support of Motion to Dismiss -

In re Supreme Beef Processo,, Inc.,

468 F.3d 248 (5th Or. 2006)....
Jet Industries, Inc. v. United States

603 F. Supp. 643 (W.D. TeL 1984) 22
Johnson V. Davis,
178 S.W.3d 230 (Tex. App. 2005)...
Johnson v. Sawyer,
47 F.3d 716 (5th Cir. 1995)....,.... 25
Kaiser v. Griinsinger,
1998 WL 35277046 (Tex. App. Aug. 13, 1998)........................................................................24
Lane v. Pena,
518 U.S. 187 (1996) 25
Lewis V. hunt,
492 F.3d 565 (5th Or. 2007).. 25
Martinez v. Reno,
No. 3:97—CV-0813—P, 1997 WL 786250 (N.D. Tex. Dec. 15, 1997) a. md. 9
McOoskev v. Mueller,
385 F.Supp.2d 74 (D. Mass. 2004)..............................................................................................17
McElro v. United States,

861 F. Supp. 585 (W.D. Tex. 1994)... 15
Mid States Development, L.L. C. v. Fidelity Nat. Title Ins. Co.,

No. 3-99-CV-1966,2001 WL 335832 (N.D. Tex. Apr. 4, 2001) ..0 24
olo/ v. United States,

502 U.S. 301 (1992) 10
Nat '1 Rifle Ass 'ii of Ain. V. Reno,

216 F.3d 122 (D.C. Cir. 2000) 20
Nishimatsu cons:, Co. v. Houston Nat'! Bank,

515 F.2d 1200 (5th Cir. 1975). 9
Norris v. Hearst Trust,

500 F.3d 454 (5th Cir. 2007) 9
Memorandum in Support of Motion to Dismiss iv

Case 3:17-cv-02692.M Document 9 Filed 01/11/18 Page 6 of 34 PagelD 81
Otis Eng 'g Corp. v. Clark,

668 SW2d307(Tex 1983) 22
Paterson v. Weinberger,
644 F.2d 521 (5th Cir. 1981).. .. ............ 8
Pau v. United States,

Case No. 13:3173, 2015 WL 1893584 (S.D. Tex. Apr. 27, 20151 15
Pooler v. United States,

787 F 2d 868 1986) 13
Pooler v. United States,

479 U.S. 849 (1986) 13
Randall D. Wolcott, M.D., P.A. v. Sebelius.

635 F.3d 757 (5th Cir. 2011)... . V*80 *Sea 8
Sübow v. United States,
93 F.3d 1445 (9th ....................................................
Cir. 1996)... ...................13
Sale/i i'. United States,

Case No. 124598, 2013 WL 5439140 (S.D.N.Y. Sept. 27, 2013)............................................15
San Benito Bank & Trust Co. v. Landair Travels,

31 S.W.3d 312 (Tex. App. 2000).................. 22
S/ui/er v. United States,

531 F.3d 930 (D.C. Cir. 2008) 17
Smith v. United States,

375 F.2d 243 (1967) 17
Smith v. United States,

389 U.S. 841(1967) 17
Spous v. United States,

613 F.3d 559 (5th Cir. 2010)
St. Taminanv Parish v. FEMA,

556 F.3d 307 (5th Cir. 2009) 12
Suter v. United States,

441 F.3d 306 (4th Cir. 2006) 14. 15
Memorandum in Support of Motion to Dismiss v

Case 3:17cv02692-M Document 9 Filed 01/11/18 Page 7 of 34 PagelD 82
Taitt v. United States,

770 F.2d 890 (10th Cir. 1995) 18
Tibfilii.y v. United States,

931 F.2d271 (4th Cir. 199 1). 16
Torrington Co. v. Stiitzinan,

46 S.W.3d 829 (Tex. 2000).. 22
United States i Biswell,

406 U.S. 311(1972) 19
United States v.. Gaubert,

499 U.S. 315(199l)... 11, 12. 13.21
United States v. Lope,

2 F 3d 1342 (5th Cir. 1993)
United States v. Mitchell.

445 U.S. 535 (1980) 10
United States v. Varig Airlines,

467 U.S. 797 (1984) 11
United States i cride;

885 F.2d 294 (5th Or. 1989) 22
Wagszaffv. U.S. Dept. of Ethic.,

509 F.3d 661 (5th Or. 2007).. 26
Walker v. Hairic
924 S.W.2d 375 (Tex. 1996) .22
Williamson v Tucker,
645 F2d404(5thCir 198 1) .8
Woods v. United States,

Case No. 07-593, 2007 VL 3243852 (D.N.J. Nov. 1, 2007)........... 1
Statutes
18 U.S.C. § 922 19, 21
18U.S.C.*921 19
18 U.S.C. 2333 1
Memorandum in Support of Motion to Dismiss vi

18 U.S.C. § 2337(a) 25
28 U.S.C. § 2680
28 U.S.C. § 1346(b)(1) 1 0,23,25
Tex, Pen. Code Ann. § 22.01(a)(3) ................... 23
Tex, Pen. Code Ann. 7.02(2)43)................. ................ ...................................................... 24
Rules
Fed. R. Civ. P. 12(b)(1) ................................................................................................................... 8
Fed. R. Civ. P. 12 (b)(6) 8,9
Regulations
27C.F.R.478.I24 19
27 C.F.R. § 102 20
28C.F.R.25.2 20
28 C.F.R. § 25.6(c)(1)(iii) 19
Memorandum in Support of Motion to Dismiss - vii

INTRODUCTION
Plaintiff Bruce Joiner ("',Plaintiff), brings this action under the Federal Tort Claims Act
("FTCX"),28 U.S.C. §* 1346(b)(1), 2671-2680, arising out of a shooting incident at an event
called the "First Annual Muhammed Art Exhibit and Contest" at the Curtis Cuiwell Center in
Garland, Texas on May 3, 2015 ("the event"). Plaintiff alleges that he was shot in the leg while
working as a security guard at the event. The shooting occurred when Elton Simpson and Nadir
Soofi, whom Plaintiff describes as "two members of the international terrorist organization
ISIS," attempted to carry out a mass-shooting at the event. Plaintiff asserts four separate causes
of action in the Complaint: (1) assault under Texas law; (2) a violation of the Anti-Terrorism Act
('"ATA"), 18 U.S.C. § 2333, (3) negligence under Texas la and (4) negligent infliction of
emotional distress under Texas law.
The Court lacks subject matter jurisdiction because this action is barred in its entirety by
the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). According to the
Complaint, Plaintiffs 1claims are based upon the conduct of the Federal Bureau of Investigation
("FBI") in relation to individuals affiliated with ISIS during the course of an undercover
investigation. FBI personnel have broad, policy-based discretion in determining the details of
how to carry out undercover activity during a national security investigation, including how to
communicate and interact with subjects of the investigation and other persons related to the
investigation, whether or when to take overt law enforcement action, and the manner in which to
share national security information with local law enforcement. Furthermore, insofar as
Plaintiffs clai are based upon the FBI's alleged failure to "block" the sale of a handgun to
Soofi in 2010, this conduct also is protected by the discretionary function exception.
Memorandum in Support of Motion to Dismiss -1

Furthermore, under Texas law, a private person does not owe a legal duty to prevent a
person from harming another, absent the existence of a special relationship; and the United
States has not waived sovereign immunity for violations of the ATA. Finally, Plaintiff failed to
state a claim because he has not sufficiently pleaded a cause of action for assault under Texas
law; and he has not sufficiently alleged that the handgun Soofi purchased in 2010 was used to
shoot Plaintiff in 2015.
ALLEGATIONS
I. INTRODUCTION
On January 7, 2015, Islamic terrorists gunned clown twelve people at the office of the
French satirical magazine Charlie Hebdo in retaliation for the magazine's cartoon depictions of
the prophet Muhammad. CompL ¶ 21. On January 17, 2015, an Islamic group held a conference
at the Curtis cuiwell Center, a venue owned by the Garland Independent School District, titled
"Stand With the Prophet in Honor and Respect," at which opposition to cartoon depictions of
Muhammed was a central focus. Id. ¶ 21. This conference drew criticism from many who
believed it came too close in time to the Charlie Hebdo shooting, including free speech activist
Pamela Gelier, who decided to host the "First Annual Muhammed Art Exhibit and Contest"
competition at the same venue on May 3, 2015. Id. tTj 7, 22.
Simpson and Soofi took particular umbrage with the event, arriving in body armor and
equipped with three assault rifles, three handguns, and 1,500 rounds of ammunition. Compi. ¶
35. Plaintiff working as a security guard at the event, approached Simpson's vehicle to check
The Complaint cites extensively to and relies on an affidavit (referred to as the "Hare
Affidavit" in the Complaint) filed by the FBI in connection with the criminal prosecution of
Erick Jamal Hendricks, Case No. 1:16:02128 (N.D. Ohio) (Dkt. # 1-1) (attached here as Exhibit
A, Appx. 001-036), as well as numerous media articles.
Memorandum in Support of Motion to Dismiss 2
identification. M. 39. Simpson and Soofi jumped out of the vehicle and opened fire on a
police officer and Plaintiff, who was shot in the leg. Al. ¶J 3940. The police officer returned
fire and killed Simpson and SOOfi. Id. ¶ 40.
IL. EVENTS LEADING UP TO THE SHOOTING INCIDENT
In March of 20151 a South Carolina resident named Erick Jamal Hendricks began taking
steps to form an ISIS cell inside the United States, using social media to recruit members.
Cornpl. Tj 24. These activities drew the attention of the FBI. Id. jj 24. On March 24, 2015, an
undercover FBI agent, referred to by the FBI as "UCE- 1," contacted Hendricks on social media,
posing as a Muslim interested in joining the ISIS cell. Id. 24. Hendricks put UCE-1 through a
vetting process, which included a test of UCE-I's religious knowledge and an evaluation of
UCE-I 's social media account. Id. 1125. After Hendricks concluded that UCE.1 satisfied his.
security concerns, he allowed UCE- I to move up to the "next level." Id. ¶ 25. Hendricks told
UCE-1 that he was affiliated with ISIS and asked him to help recruit new members for a terror
cell. M. 1j 25.2
On April 23, 2015, Simpson publicly discussed the upcoming event, through a series of
tweets with a prominent ISIS member operating in Somalia. Compi. ¶ 26. The same day,
Hendricks noticed Simpson's tweets. He contacted Simpson on Twitter and asked for Simpson 's
contact information for another social media account. Id. Tj 27. Hendricks then asked UCE-1 to
contact Simpson to validate Hendricks' identity, because Simpson had accused Hendricks of
being a spy. Id. 1127.3 Hendricks also asked UCE-1 to explain to Simpson that he (Hendricks)
2
A more detailed summary of UCE-1 's communications with Hendricks and others is
found in the FBI's Hare Affidavit. See Exhibit A
3 A both the Complaint and the FBI's Hare Affidavit make clear, Simpson was one of
several persons UCE-1 contacted at Hendricks' behest, posing undercover as a Muslim seeking
to contact persons interested in joining an ISIS cell in the United States. The communications
and UCEl "have been connecting brothers? M. ¶ 27. UCE-1 contacted Simpson over social
media, and they began discussing the possibility of "organizing." Id. 1128.
On April 24, 2015, UCE-1 and Simpson again communicated over social media, during
which Simpson shared a link about the upcoming "Draw Prophet Muhammad ContestS' in
Garland, Texas. Compi. ¶ 30. After Simpson shared the link, in an effort by UCE4 to continue
the dialogue, the following exchange took place:
UCE- I: Tear up Texas.
Simpson: Bro, u don't have to say that.. . U know what happened in Paris. .. I
think.,. Yes orno...?
UCE-l: Right.
Simpson: So that goes without saying.. . No need to be direct.
Id. 130 (citing Exhibit A at Appx. 029). 4
On or about April 26, 2015, a "routine terrorism bulletin" that included Simpson's name
was sent to law enforcement agencies around the country, including to an assistant chief in
Garland Texas,,who was on the distribution list Compi 132.
between Simpson and UCE-1 set forth in the Complaint are extracted from the FBI's Hare
Affidavit, which the Complaint cites to in footnotes throughout.
4 A this point, Simpson had already known Soofi for some time, as Soofi provided him
with ajob in 2010 and allowed Simpson to move into his apartment. Compl. NJ 17, 18. Around
the same time they met, Soofi purchased a handgun from a gun dealership in Arizona in 2010.
Id. Tj 19. Initially a "hold" was placed on the purchase, but it was "lifted" and Soofi purchased
the handgun in 2010. M. ¶ 19 & n.20.
Abdul Malik Abdul Kareem moved in with Simpson and Soofi, Id. ¶ 20, and in 2012, the
three men were investigated by the FBI on suspicion of plotting to attack the Super Bowl. Id.
Also, Kareem was indicted in June 2015 for his role in the shooting incident at the Garland
event. United States v Kareem, 2 1 5-CR-707 (D. Ariz June 10, 2015) (Dkt. # 1)

On May 1, 2015, Hendricks communicated again with LiCE-I, and discussed the event.
Compi. 1 33. On May 2, 2015, Hendricks and UCE-1 again communicated on-line about the
Garland event, during which Hendricks expressed a desire that someone go to the event, to
"harass them during the night," encouraged "a good solid protest" and a "[u]nique one man
protest." Id. ¶ 34. Hendricks explained that he was unable to go. Id. ¶ 34. UCE-1 asked if he
should go alone or with "any other brothers," to which Hendricks replied that LiCE- I should
reach out to a person believed to be Simpson, and that this person "has another brother he
knows" (which Plaintiff believes was a reference to Soofi). Id. ¶ 34. However, neither the
Complaint nor any of the materials it relies on point to, or suggest the existence of, any further
communication or interaction between LiCE-I and Simpson after the April 24, 2015
communication. Nowhere is it alleged that LiCE-i had any contact or communication with Sooti
at any time.
ilL THE DAY OF THE SHOOTING
It is alleged that on May 3, 2015, UCE-1 traveled to Garland "to meet up with Simpson,"
Compi. ¶ 35, and that on the evening of the event "Simpson, Sooti, and UCE-1 traveled together
to the Curtis Cuiweli Center in two separate cars, with Simpson and Sooli in the lead car and
UCE-1 following closely behind." Id. ¶ 355 Just before the event was to begin, the FBI sent an
email bulletin which contained a list of "suspected extremists" who were interested in the event,
including information about Simpson's general interest in the event, along with a photograph of
Simpson and a possible vehicle license plate number for Simpson. Id. ¶ 36. After the event
started',UCE-1 messaged Hendricks and told him that he was in the vicinity of the event at
However, this is pure speculation. As noted above, neither the Complaint nor any of the
materials it relies on point to, or even suggest the existence of, any further communications or
interactions between UCE-1 and Simpson after the April 24 exchange noted above.

Case 3:17cv02692M Document 9 Filed 01/11/18 Page 14 of 34 PagelD 89
which point Hendricks asked questions about the crowd, security, and media presence. Id. 1137.
Hendricks also told UCE-1 that he should wait to attack until the attendees were outside. Id. ¶
37,
Simpson and Soofi approached the entrance to the convention center's rear parking lot in
their vehicle. Compl. ¶ 38. The Garland police had erected a barrier at that entrance, which was
guarded by Garland police officer Gregory Stevens and Plaintiff. Al. 1138. When Simpson's
vehicle reached the barricade and stopped, Plaintiff approached the vehicle to check Simpson's
and Soofi 4s identification. Simpson and Soofi jumped out of the car and opened fire on Officer
Stevens and Plaintiff. M. ¶ 39. Plaintiff dove for cover, but was shot in the leg. Id. 140.
Officer Stevens returned tire with his handgun, killing Simpson and Soofi. Id. ¶ 40. UCE- I,
who was in the vicinity, attempted to flee, but was stopped at gunpoint by Garland police.
Compl. ¶ 41. UCE-i was dressed in Middle Eastern attire and police almost killed him, but he
saved his life by claiming to be an FBI agent. Id. Ti 42.
SUMMARY OF CLAIMS
In the first cause of action, for assault, Plaintiff contends that the United States is liable
for the assault committed by Simpson and Soofi pursuant to Tex. Penal Code Ann. § 7.02(2)(3).
Compl. ¶ 64. in particular, Plaintiff alleges that UCE-1 solicited, encouraged, or directed
Simpson to commit the assault through UCE- Is social media communication stating "tear up
Texas," and aided or attempted to aid in the assault by accompanying Simpson and Soofi to the
event. Id. 165. Further, the FBI "aided" the assault by failing to "block" Soofi 's handgun
purchase five years earlier in 2010. M. ¶ 66. Finally. Plaintiff alleges that the FBI failed in its
duty to prevent the assault on the ground that the FBI's bulletins were insufficient. Id. 1167.

Case 3:17-cv-02692-M Document 9 Filed 01/1u8 Page 15 of 34 PageiD 90
In the second cause of action, Plaintiff alleges that the United States should be liable for a
violation of the Anti-Terrorism Act on the ground that the FBI conspired with and provided
substantial assistance to Soofi and Simpson, whose conduct was an act of "international
terrorisim" Compi. 1'80. Plaintiff alleges that the FBI did so based upon UCE-l's "tear up
Texas" comment, failing to "block" the sale of a handgun to Soofi, and helping to "reconnoiter
prior to the attack." Al. ¶ 80.
In the third cause of action. for negligence under Texas law, Plaintiff alleges that the FBI
failed to act reasonably during its undercover operation. CompL 1 9.3. In particular, Plaintiff
alleges that the FBI was negligent in failing to alert local law enforcement that Simpson and
Soofi posed an "Imminent threat," Id, ¶ 92, and failing to take some action against Soofi and
Simpson sooner, Id. ¶ 93.
In the fourth cause of action, for intentional infliction of emotional distress under Texas
law, Plaintiff alleges that the FBI intentionally or recklessly engaged in extreme and outrageous
conduct by lifting a "hold" on the sale of a handgun to Soofi, and by UCE-1 "inciting" Simpson
to "tear up Texas," dressing in Middle Eastern attire and "reconnoitering on behalf of the
terrorist and possibly directing them to an undermanned vehicle entrance where the attack took
place." Compi. ¶ 95.
STANDARD OF REVIEW
Under Rule 12(b)(1), the district 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." Williamson v. Tucker, 645 F.2d
404, 413 (5th Cir. 1981). When mounting a facial attack, the court looks to the sufficiency of the

Case 3:17-cv.02692M Document 9 Filed 01/11/18 Page 16 of 34 Page ID 91
allegations in the complaint which are presumed to be true. See Paterson v. Weinberger, 644
F.2d 521, 523 (5th Cir.1981)). "If a defendant makes a 'factual attack' upon the court's subject
matter jurisdiction over the lawsuit, the defendant submits affidavits, testimony, or other
evidentiary materials." In a factual challenge, the "court is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case." Williamson, 645 F.2d at 413 (citations and
internal quotation marks omitted). Further, "no presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts will not preclude the trial court from
evaluating for itself the merits ofjurisdictional claims." Id. If a court confronts a factual attack,
the plaintiff must "submit facts through some evidentiary method and has the burden of proving
by a preponderance of the evidence that the trial court does have subject matter jurisdiction,,"
Paterson, 644 F.2d at 523.
Rule 12(b)(6) requires dismissal if a plaintiff fails "to state a claim upon which relief can
be granted." Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion, the court considers
the complaint, its attachments, documents incorporated by reference, matters of public record,
and matters of which a court may take judicial notice. See Fin. Acquisition Partners J.P. v,
Blackwell, 440 F.3d 278, 286 (5th Cir. 2006); Randall D. Wolcott, MD., P.A. v. Sebelius, 635
F.3d 757, 763 (5th Cir, 2011) (citations omitted). A court may also consider documents that a
defendant attaches to a motion to dismiss if they are referred to in the complaint and are central
to the plaintiffs claims. See Collins v. Morgan Stanhy Dean Wilier, 22.4 F.3d 496. 498-99 (5th
Cir. 2000). "Where the allegations in the complaint are contradicted by facts established by
documents attached as exhibits to the complaint, the court may properly disregard the
allegations Martinez v Reno No 3:97—CV-0813—P, 1997 WL 786250 at *2 (N .D. Tex Dec

Case 3:17cv-02692M Document 9 Filed 01/11/18 Page 17 of 34 PagelD 92
15. 1997) (citing Nis/zünalsu cons,. Co. v. Houston Nat? Bank, 515 F.2d 1200, 1206 (5th Cir.
1975)).
A complaint must contain "enough facts to state a claim to relief that is plausible on its
face Bell At! Corp. ' Tn onzbh 550 U.S. 5441 555 (2007)- ds/iu o/Ii Jqbal, 556 U.S. 662
(2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id. (citing Twombly, 550 U.S. at 556). To withstand a Rule 12(b)(6) motion, a "complaint must
allege 'more than labels and conclusions," and "a formulaic recitation of the elements of a
cause of action will not do.'" Norris v. Heart Trust, 500 F.3d 454,464 (5th Cir. 2007) (quoting
Twonthl, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]"
devoid of 'further factual enhancement." Iqbal, 556 U.S. at 67$ (alteration in original) (quoting
Twoinblv, 550 U.S. at 557). "To survive a Rule 12(b)(6) motion to dismiss, a complaint "must
provide the plaintiff's grounds for entitlement to relief— including factual allegations that when
assumed to be true 'raise a right to relief above the speculative level," Cuvillier v, Taylor, 503
F.3d 397, 401 (5th Cir. 2007) (footnote omitted) (quoting Twomblr. 550 U.S. at 555).
"Conversely, 'when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief, this basic deficiency should. . . be exposed at the point of minimum
expenditure of time and money by the parties and the court." Id. (quoting Twombly, 550 U.S. at
55$).
ARGUMENT
I. PLAINTIFF'S CLAIMS ARE BARRED BY THE DISCRETIONARY FUNCTION

EXCEPTION
A. Overview of the Discretionary Function Exception

The United States is immune from liability absent its consent, and the terms of
that consent define a court's jurisdiction to entertain a suit against the United States. See
United States v. Mitchell, 445 U.S. 535, 538 (1980). Absent a specific waiver, sovereign
immunity bars the suit for lack of subject matterjurisdiction. See FDIC v. Meyer, 510
U.S. 471, 475-76 (1994). The FTCA is a limited waiver of sovereign immunity that
authorizes suits against the United States for:
money damages. . . for injury or loss of property, or personal injury or

death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).
The FTCA's waiver of sovereign immunity is subject to several exceptions set forth in 28
U.S.C. § 2680, which "are designed to protect certain important government functions and
prerogatives from disruption." Molwfv. United States, 502 U.S. 301. 311(1992). Among these
exceptions is the discretionary function exception, which bars "any claim. . . based upon the
exercise or performance or the failure to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the Government, whether or not the discretion
involved be abused." 28 U.S.C. § 2680(a).
The Supreme Court has created a two-part test for determining whether a claim is barred
by the discretionary function exception. First, courts must determine whether the act "involv[es]
an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322 (1991).
Pursuant to this first part, courts look to whether "a federal statute, regulation or policy
specifically prescribes a course of action for an employee to follow[.]" Gaubert. 499 U.S. at 322
(quoting Berkovit: v. United States, 486 U.S. 531, 536 (1988)).

Second, if the conduct does involve judgment or choice, courts then look to "whether that
judgment is of the kind that the discretionary function exception was designed to shield. '
Gaubert, 499 U.S. at 322-23 (quoting Berkovit, 486 U.S. at 536), "The basis for the
discretionary function exception was Congress' desire 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." Berkovitz, 486 U.S. at 536-37 (quoting United States v.
Varig Airlines, 467 U.S. 797, 814 (1984)). Thus, the exception protects "governmental actions
and decisions based on considerations of public policy." Gaubert, 499 U.S. at 323 (citation and
internal quotation marks). It is immaterial whether various policy considerations actually were
considered, because "[t]he focus of the inquiry is not on the agent's subjective intent in
GO
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." Gaubert, 499 U.S. at 325; Spoils v.
United States, 613 F.3d 559, 572 (5th Cir. 2010). Furthermore, "[w]hen established
governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows
a Government agent to exercise discretion, it must be presumed that the agent's acts are
grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 323. Also, the
discretionary function exception applies even if the government's conduct was negligent or an
abuse of discretion. See Gaubert, 499 U.S. at 323.
To survive a motion to dismiss, "the plaintiff must invoke. . . jurisdiction by alleging a
claim that is facially outside of the discretionary function exception." See St. Tammany Parish v.
FE/VIA, 556 F.3d 307, 315 (5th Cir. 2009): see also Gaubert, 499 U.S. at 324-25; ALXEI
Do, ado Incl. ' United States 36 F 3d 409 411 n 13 (5th Cir. 1994) Where the exception
Memorandum in Support of Motion to Dismiss -Ii

applies, no federal subject matter jurisdiction exists. See Buchanan t United Stales. 915 F.2d
969 970 (5th Cir. 1990) In te Supreme Beef Processors,

s Inc., 468 F 3d 248 252 (5th Cir. 2006)
B National Security Undercover Operations And Activity Are Protected by the

Discretionary Function Exception
Each of the four causes of action is based upon the alleged conduct of the FBI in relation
to individuals affiliated with ISIS during the course of an undercover investigation. Specifically.
Plaintiffs claims are based upon the alleged manner in which an undercover FBI agent
communicated and interacted with a subject and others during the course of an undercover
counterterrorism investigation, decisions regarding whether to take overt law enforcement action,
and decisions regarding the manner in which to communicate national security information
concerning a potential terrorist threat to other government agencies.
Notably. Plaintiff does not allege that UCE-I, or any FBI employee, ran afoul of any
specific Federal statute, regulation, or agency policy relating to the conduct of an undercover
operation. By failing to so, Plaintiff has not carried his burden of pleading a cause of action that
is facially outside of the discretionary function exception. See ALXEI Dorado, Inc, 36 F3d at
411-12 (failure by the plaintiff "to point to even one relevant mandatory limitation on [the
agency's] discretion" in the complaint renders is "insufficient.. to defeat the first part of the
Gaubert test ,).6 In any event, as the attached declaration establishes, the FBI has no mandatory
policies relating to the operational details of conducting undercover national security
investigations, including whether to use a particular investigative technique; how to
See also Ashley v. United States, No. 3-.14-CV-2654,, 2016 WL 5791547, *4 (N.D. Tex.
Oct. 14, 2016) (action dismissed where plaintiff "failed to plead or submit any evidence to
establish" a violation of a mandatory directive); Kirkpatrick v. United States, No. 2:05-CV-
213220071 WL 2262939, *4 (W.D. La. Aug 6, 2007) (-"It is the plaintiffs' burden to identify with
specificity the mandatory statutes, regulations, or directives that have allegedly been violated.")
(citing Gaubert, 499 U.S. at 324-325).

communicate and interact with subjects of investigation and other individuals during the course
of the investigation; whether and when to take overt law enforcement action, such as effecting an
arrest; and the manner in which to share information with other government agencies. See
Exhibit B (Appx. 037-057).
Regarding the second part of the Gaubert test, it is indisputable that "Congress did not
intend to provide for judicial review of the quality of investigative efforts." Pooler v. United
States, 787 F.2d 868, 871 (3d Cii ) eu denied 479 U.S. 849 (1986).Indeed on numerous
occasions, courts have held that the conduct of an undercover operation is a quintessential
discretionary function grounded in important public policy goals. Particularly on point is
Georgia cas. & Sur. co. v. United States, 823 F.2d 260 (8th Cir. 1987), where the FBI engaged
in an undercover operation focused on a large car-theft ring in which the thieves (acting as
"retaggers") would remove the vehicle identification numbers ("VINs") from stolen cars, replace
them with VINs from salvaged cars of the same make and model, and then sell the stolen cars to
unsuspecting purchasers. To effect this operation, an undercover agent and a paid informant
posed as salvage dealers and provided a salvage yard from which the retaggers could purchase
salvage VINs and blank motor vehicle titles. The undercover FBI agent and informant delivered
several cars to an auto auction company, who then sold the cars to innocent purchasers. Once
the operation went public, the FBI seized the stolen cars from the innocent purchasers, who were
reimbursed by the auction company's insurer. The insurer then sued the United States under the
'See also Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996) ("Investigations by
federal law enforcement officials... clearly require investigative officers to consider relevant
political and social circumstances in making decisions about the nature and scope of a criminal
investigation."); Faneca v. United States, 332 F.2d 872. 874-875 (5th Cir. 1964) (decisions
regarding the "modus operandi" of law enforcement operations and the means of enforcing the
law are protected by the discretionary function exception).

Case 3:17cv02692M Document 9 Filed 01/11/18 Page 22 of 34 PagelD 97
FTCA, seeking money damages for the claims it had paid, asserting that the FBI was negligent in
its investigative methods and in maintaining secrecy. The court held that the discretionary
function exception baiTed the insurer's claim, finding that "in developing a strategy to apprehend
the retaggers, the FBI had to weigh the public concern for reducing widespread criminal activity
against the harm to innocent victims resulting from a covert operation." M. at 263. As the court
succinctly summed it up, "the means chosen by the Government to enforce the law are
protected."' Al. at 263 Thus, the exception applied, even though the FBI '1conduct allegedly
assisted and furthered the criminal activity that harmed the plaintiff.
Likewise, in Suter v. United States, 441 F.3d 306 (4th Cir. 2006), investors in a Ponzi
scheme brought suit against the United States alleging that an undercover FBI agent improperly
aided and helped conceal the conduct of the fraudsters he was investigating. The Fourth Circuit
held that the discretionary function exception applied to this conduct, finding that the methods
used to carry out the undercover investigation involved weighing the risk of harm to innocent
people with the objectives of the investigation. 441 F.3d at 312. The court further stated that
"decisions concerning undercover operations are protected from civil liability by the
discretionary function exception, even when those decisions result in harm to innocent third
parties. imposing liability for such decisions would seriously handicap the FBI and other federal
law enforcement agencies in carrying out the important duties assigned to them by Congress."
N. (citation and quotation marks omitted).
Furthermore, in Crenshaw v. United States, 959 F. Supp. 399 (S.D. Tex, 1999),
undercover FBI agents approached the plaintiff and attempted to "entrap" him into marketing a
fictitious device to NASA in order to win a contract. After taking some measures to advance the
scheme,the plaintiff learned the hue nature of the scheme and sued the United Stales for,

among other things, the manner in which the FBI conducted the operation. The court held that
the discretionary function exception barred the claims, finding that "[i]n making decisions
related to the investigation, the agents were concerned with obtaining evidence of illegal
activities against {the plaintiff]. Their decisions to take or refrain from certain actions were
controlled by their desire to obtain this evidence. Obviously, this objective correlates with the
public policy goal of punishing and deterring those who violate federal laws.' crenshaw, 959 F.
Supp. at 402.'
Thus, the discretionary function exception bars claims challenging the full panoply of
decisions made during the course of an undercover operation, including those at issue here. As
one district court aptly summed it up:
FBI agents must balance numerous factors, including: selection of effective

investigative techniques to collect useful evidence of criminal activity; the
availability and reliability of possible informants and cooperators; the use of
undercover techniques; consideration of the danger to cooperators, informants,
undercover agents and possible bystanders; weighing the danger inherent in
participating in criminal acts with criminal gangs. These decisions are discretionary
See also McEfrov v. United Slates, 861 F. Supp. 585, 592 (W.D. Tex. 1994) (decisions
by undercover law enforcement officers "to take or refrain from certain actions" during
investigation correlates with the public policy goal of punishing and deterring crime); Patty v.
United States, Case No. 13:3173, 2015 WL 1893584, *11 (S.D. Tex. Apr. 27, 2015) (decisions
relating to how to conduct of covert law enforcement operation protected by the discretionary
function exception); Saleb v. United Slates, Case No,, 12-4598, 2013 WL 5439140, *10
(S.D.N.Y. Sept 27 2013) (decisions relating to the identification and recruitment of human
sources are protected by the discretionary function exception); Flax v. United Stales, 847 F.
Supp. 1183, 1190 (D.N.J. 1994) (decisions regarding how to conduct surveillance and how
closely to follow suspects is protected by the discretionary function exception).
It also is notable that the conduct of undercover operations is protected by the

discretionary function exception even when performed outside of a traditional law enforcement
context, such as gathering intelligence. See Fri v. United States, 862 F.2d 201, 203 (9th
Cir, 1988) (per curiam) (action based upon financial fraud by an investment company used by the
CIA as a cover for its operations was barred by the discretionary function exception because "the
alleged decisions by the CIA to use [the company] and to keep its use of the company secret are
administrative decisions grounded in social and economic policy").

and are based upon considerations of public policy, so they are protected by the
discretionary function exception.
Woods v. Uii ited States, Case No. 07-593, 2007 WL 3243852, *4 (D.N.J. Nov. 1, 2007).
All such considerations were present here. Indeed, that the undercover operation at issue
also involved matters of national security further adds to the policy-based nature of the conduct.
Ti//am i United States 931 F 2d 271, 277 (4th Cir. 1991) ("Of the legion of governmental
endeavors, perhaps the most clearly marked for judicial deference are provisions for national
security and defense,"). Accordingly, UCE-i 's communicating with Simpson in furtherance of
the investigation of Hendricks is the very type of investigative activity protected by the
discretionary function exception. Of course, the same is true with respect to the events In
Garland, where UCE- us alleged to have travelled with Simpson and Soofi and 'reconnoitered"
on their behalf Not only are such allegations too vague and speculative to support a cause of
action, even if true such conduct by UCE-1 would be a continuation of the very sort of
undercover activity that the discretionary function exception protects.9
9 A noted, allegations of any contact or interaction between UCE- I and Simpson and/or
Soofi at or near the event is pure speculation. in fact, the vague and speculative allegations in the
Complaint are equivocal, alleging only that UCE- 1 possibly' directed Soofi and Simpson to a
particular entrance. Compl. 1 95.
Furthermore, following the criminal trial of Kareem, the district court held that UCE- I
and Simpson 'communicated only on April 23 and 24, 2015," that 'Simpson did not disclose his
intent to go to Garland," that the presence of UCE- I at the scene in Garland"does not support
anything other than the undercover agent's expressed intention to bolster his credibility with
Hendricks" and "had nothing to do with Simpson," and that Hendricks (with whom UCE-1
communicated during the event, rather than Simpson) and Simpson were not communicating or
conspiring with each other. See United States v. Kareern, 2: 15-CR-707. at *9 (D. Ariz. Jan. 231,
2017) (Dkt. # 469). attached as Exhibit C (Appx. 067). Thus, insofar as the causes of action are
based on UCE- 1, 's allegedly accompanying and assisting Simpson and Soofi, such allegations
not only fail to meet the pleading standards required under Rule 12(b)(6), they are flatly
contradicted by the district court's findings in the Kareem prosecution.

Moreover, the discretionary function exception applies to any decision regarding whether
to intervene in order to prevent criminal or terror activity. See Smith v. United Stales, 375 F.2d
243. 247-48 (5th Cir.), cert. denied. 389 U.S. 841 (1967) ("The federal government's decisions
concerning enforcement of its criminal statutes comprise a part of its pursuit of national
Policy."); Flanunia v United States 739 F 2d 202, 205 (5th Cir. 1984) (decision to release
immigration detainee who was a known violent felon protected by the discretionary function
exception)." Indeed, even when the FBI knows that a crime is about to occur, but deliberate Y
decides not to stop it, that decision is protected by the discretionary function exception. See
Amato v. United States, 549 F. Supp. 863. 866 (D.N.J. 1982) (discretionary function exception
protected decision by FBI to allow suspects under surveillance to complete the crime of
attempted bank robbery so that they could be charged with more serious offense). Thus, insofar
as Plaintiff bases his claims on the alleged failures of the FBI to take some law enforcement
action against Simpson and Soofi prior to or during the event, such claims are barred the
discretionary function exception.
Finally, the manner in which the FBI chose to share national security information
concerning a potential threat with local law enforcement is the type of policy-based decision that
is protected by the discretionary function exception. See Gonzalez v. United States, 814 F.3d
10Shuler v. United States, 531 F.3d 930, 934 (D.C. Cir. 2008) (""Decisions regarding the
timing of arrests are the kind of discretionary government decisions, rife with considerations of
public policy, that Congress did not want the judiciary second-guessing."') (citation and internal
quotation marks omitted); Denser v. Vecera, 139 F.3d 1190, 1195 (8th Cir. 1998) (decision to
terminate arrest protected by the discretionary function exception); Mecloskey v. Mueller, 385
F.Supp.2d 74, 81 (D.. Mass. 2004) (decision by FBI not to follow up on tip and make an arrest
protected by the discretionary function exception).

1022 7 1032 (9th Cir. 2016) ("The FBI's judgment about how to respond to a reported threat and
how extensively to disclose information to other law enforcement organizations implicates many
risks, all of which must be weighed in accordance with the FBI's social and public policy
judgments."); Thitt v. United States, 770 R2d 890 (10th Cir. 1995) (decision not to alert local
law enforcement to release of dangerous person protected by the discretionary function
exception). Thus, insofar as Plaintiffs claims are based upon the alleged inadequacies of the
FBI's communications with local law enforcement regarding potential threats at the event, those
claims are barred by the discretionary function exception.
C. The FBI's Background Check System for Gun Purchasers is Protected by the
Discretionary Function Exception
Plaintiff also bases his claims, in part, on the FBI allegedly lifting a "hold" on a handgun
purchase by Soofi in 2010. Of course, the purchase of this particular handgun is relevant only if
it was used to shoot Plaintiff five years later in 2015. However, the source materials that
Plaintiff relies on specifically state that Simpson and Soofi exited the car and began shooting
with assault rifles, not a handgun. Thus, the sale of the handgun to Soofi is a complete red
herring that cannot be the basis for liability."
Even if Plaintiff was shot by the handgun purchased by Sooti, the FBI's involvement in
the background check process for the sale of firearms is protected by the discretionary function
exception. The sale of firearms is regulated by the Gun Control Act of 1968, 18 U.S.C. § 921 ci
11 See articles cited at Compi. ¶ 38 n.67, n.68; ¶ 39 n.7; and ¶ 53 n. 100, 1168 n.l 10
(attached hereto as Exhibit D, Appx. 79, 81, 83, 88, 92, 100). Furthermore, the source materials
that Plaintiff relies on also state that the handgun purchased by Soofi was not part of the
infamous Fast and Furious operation. See article cited at Compl. ¶ 19 n.20, 21, ¶43 n.78 and
attached hereto as Exhibit D Appx 103) Thus any allegation trying to link the sale of the
handgun to Soofi to that operation not only is completely speculative, it is flatly contradicted by
the materials Plaintiff relies on.

seq. The principal purpose in enacting the 1968 Gun Control Act was to curb crime by keeping
1ircarms out of the hands of those not legally entitled to possess them because of age, criminal
background, or incompetency." Huddieston v. United States, 415 U.S. 814, 824 (1974).
Additionally, the Act "assist{s} the States in regulating the firearms traffic within their borders."
United States v. Biswel/, 406 U.S. 311, 315 (1972). At the same time, Congress noted that it was
not the intent of the Act to place "undue or unnecessary Federal restrictions or burdens" on the
lawful acquisition and use of firearms. Bryan i'. United States, 524 U.S. 1841 187 (1998) (citing
P.L. 99308 §. 1. 100 Stat. 44); United States v. Lopez. 2 F.3d 1342, 1355 (5th Cir. 1993).
Under 18 U.S.C. § 922(g) and (n), certain classes of people may not purchase or possess
any firearm. The Brady Act, codified in relevant part at 18 U.S.C. § 922(t), and the regulations
promulgated thereunder establish a detailed scheme to enable the dealer to verify, at the point of
sale, whether a potential buyer may lawfully buy a gun. As part of this process, the would-be
purchaser fills out a form on which to provide his background information and that requires him
to certify that none of the disqualifying information app lies. 12 Furthermore, the dealer must
submit the would-be purchaser's information to the National Instant Criminal Background Check
System (NICS) to determine whether the potential purchaser is for any reason disqualified from
owning a fire fl 18 U.S.C. § 922(t)( 1 )(A)-(B)). u Even if the prospective buyer certifies that he
12
See 27 C.F.R. § 478.124(c)(1) (describing use of ATF Form 4473).
13
The Brady Handgun Violence Prevention Act of 1993 required the Attorney General to
establish a "national instant criminal background check system," known as the NICS, to search
the backgrounds of prospective gun purchasers for criminal or other information that would
disqualify them from possessing firearms. Nat'! Rifle Ass 'n of Am, v. Reno, 216 F.3d 122, 125
(D.C. Or. 2000) (citing § 103(b) Pub.L. No 103159 107 Stat 1536) A computerized system
operated by the FBI. the NICS searches for disqualifying information in three separate databases:
(1) the 'NICS Index,' containing records on persons known to be disqualified from possessing
firearms under federal law; (2) the 'National Crime Information Center [NCIC],' containing
records on protective orders, deported felons, and fugitives from justice; and (3) the 'Interstate
Case 3:17-cv-02692M Document 9 Filed 01/11/18 Page 28 of 34 PagelD 103
or she is not prohibited by the Gun Control Act from receiving a firearm, however, the licensed
dealer still is prohibited from selling, delivering, or transferring the firearm to the prospective
buyer, unless.
nless:-
(1) Before the completion of the transfer, the licensee has contacted NICS;
(I)
(2)(i) NICS informs the licensee that it has no information that receipt of the
firearm by the transferee would be in violation of Federal or State law and
provides the licensee with a unique identification number; or (ii) Three business
days (meaning days on which State offices are open) have elapsed from the date
the licensee contacted NICS and NICS has not notified the licensee that receipt of
the firearm would be in violation of law; and
(3) The licensee verifies the identity of the transferee by examining the
identification document presented in accordance with the provisions of §
478.124(c),
27 C.F.R. § 478.l02(a(1)43).
FBI's NICS does not have the authority to "block" or "freeze" any firearm purchase.
Rather, based on the information returned during a search of the relevant databases, the NICS
Operations Center is authorized to provide the licensed dealer with one of three responses:
(A) 'Proceed" response, if no disqualifying information was found in the NICS

Index, NCIC, or HI.
(B) "Delayed" response, if the NICS search finds a record that require
s more
research to determine whether the prospective transferee is disqualified from
possessing a firearm by Federal or state law. A "Delayed" response to the FFL
indicates that the firearm transfer should not proceed pending receipt of a follow-
up 'Proceed" response from the NICS or the expiration of three business days
(exclusive of the day on which the query is made), whichever occurs first.
(1 c) "Denied" response, when at least one matching record is found in either the
NICS Index, NCIC, or III that provides information demonstrating that receipt of
a firearm by the prospective transferee would violate 18 U.S.C. 922 or state law[.]
28 C.F.R. § 25.6(c)(1)(iv)(A)-(C); see also 28 C.F.R. § 25.2 (defining terms "Proceed,"

"Delayed," and "Denied").
Identification Index [111],' containing criminal history records.' Id. (citing 28 C.F.R. §
25 6(c)(l)(iii))
Case 3:17-cv-02692-M Document 9 Filed 01111118 Page 29 of 34 PagelD 104
Thus, the Brady Act authorizes the FBI to place a firearm transaction into delay status for
no more than three business days while it researches whether a particular buyer is prohibited by
law from possessing a firearm. The FBI has no authority to issue a "Denied" response it after
those three business days have elapsed, it has not yet found definitive information demonstrating
that the prospective purchaser's receipt of a firearm would violate the applicable provisions of
the Gun Control Act.
When an agency follows the processes set forth by statute or regulation, such action "will
be deemed in furtherance of the policies which led to the promulgation of the regulation" and is
thus protected by the discretionary function exception. See Gaubert, 499 U.S. at 323 (citing
Dalehite i & mted States 346 U.S. 15 36 (1953)). Here, Plaintiff has not alleged any facts
establishing that Soofi, at the time of the gun purchase in 2010, fell within one of the prohibited
classes of persons set forth at 18 U.S.C. § 922(g) and (n), or state law. Accordingly, the facts
alleged in the Complaint provide no basis for the FBI to have issued a "Denied" response.
Rather, the allegations in the Complaint - now understood within the backdrop provided above
regarding the Gun Control Act, the Brady Act, and the applicable regulations - suggest nothing
other than the FBI following the applicable statutes and regulations when processing a NICS
firearm background check. Thus, per Gaubert, the decision to not issue a "Denied" response is
to be deemed in furtherance of the policies behind the above-mentioned statutes and regulations,
and is therefore protected by the discretionary function exception.
II. THE GOVERNMENT OWED PLAINTIFF NO DUTY UNDER TEXAS LAW
"Texas law generally imposes no duty to take action to prevent harm to others absent
certain special relationships or circumstances." Torringlon co. v. Stutzin.an, 46 S.W.3d 829, 837
(Tex. 2000) (citing Restatement (Second) of Torts § 314 (1965)). The special relationships

recognized under Texas law as providing an exception to this general rule include the
relationship between employer and employee, parent and child, and independent contractor and
contractee under special circumstances. Greater Houston Transp. Co.. 899 S.W.2d at 526. Nor
is there "a legal duty to protect another from the criminal acts of a third person or control the
conduct of another." Walker v. Harris, 924 S.W.2d 3751 377 (Tex. 1996) (citations omitted)."
Indeed, a person has no duty to prevent harm by a third person, "even if he has the practical
ability to exercise such control." Otis Eng g Corp. v, Clark, 668 S.W.2d 307, 309 (Tex. 1983)
(citations omitted).15
No credible argument could be made that the FBI had a special relationship with Plaintiff
or with Simpson or Soofi that would give rise to a duty, to prevent the criminal acts of Simpson
and Soofi, whether by taking some law enforcement action against Simpson or Soofi, notifying
local law enforcement of potential criminal or tenor activity, or "blocking" a handgun sale five
years earlier. Thus, the FBI had no duty to act in any way to prevent Simpson or Soofi from
shooting Plaintiff Because there is no duty under Texas law, there is no waiver of immunity
H
See also Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523. 525 (Tex. 1990)
("Generally, there is no duty to control the conduct of third persons.") (citing Restatement
(Second) of Torts 315 (1965)), Centeq Rca/ti Inc i Szegler, 899 S.W.2d 195 197 (Tex. 1995)
(citing Restatement (Second) of Torts § 315 (1965)); Andrade 1' Chojnacki, 65 F Supp 2d 431
470 (W.D. Tex. 1999) ("'Texas law does not recognize a tort duty owed to Plaintiffs to protect
them from the actions of third parties.").
See also San Benito Bank & Trust Co. v. Landair Travels, 31 S.W.3d 312, 317 (Tex.
App. 2000) ("The general rule is that a person has no legal duty to protect another from the
criminal acts of a third person... Even if he has the practical ability to exercise such control, a
person is generally under no duty to control the conduct of another.") (citations omitted).Grider
v. United States, 885 F.2d 294, 299 (5th Cir, 1989) (no duty under Texas law to have taken
intoxicated person into custody, who then injured others while driving home); Jet Industries. Inc.
1P. United States 603 F Supp 643, 646 (W.D. Tex 1984) (no duty under Texas law to take any
action to prevent harm to another even if government "has information suggesting that a crime
might occur").
Case 3:17-cv02692-M Document 9 Filed 01/11/18 Page 31 of 34 PagelD 106
under 28 U.S.C. § 1346(b)(1). Meyer, 510 U.S. at 476 (claim not cognizable under FTCA if it
does not set forth a cause of action for which a private person could be liable under State law).
ilL THE ALLEGED CONDUCT IS NOT ASSAULT UNDER TEXAS LAW
Under Texas law, the elements for a tort claim of assault are the same as for the crime of
assault. See Johnson v. Davis, 178 S.W.3d 230,240 (Tex, App. 2005). A criminal assault
occurs when a person "intentionally or knowingly causes physical contact with another when the
person knows or should reasonably believe that the other will regard the contact as offensive or
provocative." Tex. Pen. Code Ann. § 22.01(a)(3). Because Plaintiff was shot by Simpson or
Soofi, not the FBI, the elements of assault are not met. Plaintiff tries to circumvent this fatal
flaw by contending that a person may nevertheless be "criminally responsible for an offense
committed by the conduct of another" if "acting with intent to promote or assist the commission
of the offense, he solicits , encourages, directs, aids or attempts to aid the other person to commit
the offense[,]"' or "having a legal duty to prevent the commission of the offense and acting with
intent to promote or assist its commission, he fails to make a reasonable effort to prevent
commission of the offense." Compl. 1164 (citing Tex. Penal Code Ann. § 7.02(2)43) (emphasis
added). However, Section 7.02(2)-(3) provides that a person can be criminally responsible for an
offense if the elements of that statute are met, not civilly liable. In fact, the argument that civil
liability can be established through Tex. Penal Code Ann. § 7.02(2)-(3) has been expressly
rejected on the ground that the penal code does not create private causes of action. See A.H. Belo
Corp. v. Corcoran, 52 S.W.3d 3759 379 (Tex. Ct. App. 200 1) (citing Aguilar v. Chastain, 923
S.W.2d 740, 745 (Tex. App. 1996)).
In any event, the Complaint does not allege, nor provide any factual support, that UCE-1
intended for this shooting to occur. Moreover, for a defendant to be liable under a theory of

aiding or encouraging, there must be evidence that he "knowingly engaged in conduct directed
toward these Plaintiffs in particular, in addition to entering into a general conspiracy." Mid
States Development, L.L. C v. Fidelit Nat. Title Ins. co., No. 3-99-CV-1966,2001 WL 335832.
*6 (N.D. Tex. Apr. 4, 2001). As noted, the Complaint provides only rank speculation that UCE-
I met up with and followed Simpson and Soofi to the event, and provides no well-plead factual
allegations regarding what exactly UCE-1 did at or immediately before the event that could
constitute the assistance, direction, solicitation or encouragement of an assault. Rather, the only
communication Plaintiff can point to as a basis for the assault claim is the comment to "tear up
Texas" However, this hardly constitutes the encouragement of an assault, given its remoteness
in time to the event (ten days before), the extremely genera) nature of the comment, and that
Simpson actually "chastised" UCE-1 for saying it. Compi. 13 1. Indeed, even more direct and
clear statements are not actionable under Texas law. See Kaiser v. Grimsinger, 1,998 WL
352770461 *6 (Tex. App. Aug. 1.3, 1998) (responding "Yeah!" to the assailant's threat to assault
someone "cannot be reasonably interpreted as a command, direction, advice, encouragement,
control, or aid to any" subsequent assault). Nor can Plaintiff base his assault claim on the FBI's
failure to issue a Denied response for Soofi's handgun purchase. Obv ously, the FBI did not
actually provide the handgun to Soofi, and it is not alleged (nor could it be alleged plausibly) that
the FBI decided to not issue a Denied response both knowing and intending that the gun be used
five years later in a shooting at the Garland event
IV. THE UNITED STATES HAS NOT WAIVED SOVERIGN IMMUNITY FOR
CLAIMS UNDER THE ATA
In Count II, Plaintiff seeks to hold the United States liable for alleged violations of the
Anti-Terrorism Act. In regard to 28 U.S.C. § 1346(b)(1),, the "reference to the 'law of the place'
means law of the State the source of substantive liability under the FTCA." Meyer, 510 U.S. at

Case 3:17cv02692M Document 9 Filed 01/11118 Page 33 of 34 PagelD 108
477. The court need not address whether Plaintiff's allegations establish the elements of a cause
of action under the ATA, because a violation of a Federal statute cannot be the basis for an
action under the FTCA. See Johnson V. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (en banc))6
Even if Plaintiff sought to bring this action independently under the ATA, the Court
would have no subject matter jurisdiction because Congress has not waived sovereign immunity
for claims against the United States for violations of the ATA. "4 A waiver of the Federal
Government's sovereign immunity must be unequivocally expressed in statutory text.. . and
ill not be implied Leivis v Hunt 49.2.0 F 3d 565 570 (5th Cir. 2007) (quoting Lane i Pena,
518 U.S. 1871 192 (1996)); Drake V. Pana na Ca ial C 907 F.2d 5324 534 (5th Cir.1990)
(A party may not bring suit against the United States absent an explicit waiver of sovereign
immunity by Congress.). Absent a waiver of sove: immunity, the federal government is
immune from suit and the court is deprived of subject matter jurisdiction. Id. at 571 (citations
omitted). The ATA does not expressly state that the United States may be sued for a violation of
any of the provisions therein. Quite the contrary, suits against the United States are expressly
precluded by the statute. 18 U.S.C.A. § 2337(a). Because the ATA "does not contain an
unequivocal and express waiver of sovereign immunity," the Court has no subject matter
jurisdiction over this claim. Wagstcffv. U.S. Dept. of Educ., 509 FJd 661, 664 (5th Or. 2007).
CONCLUSION,
For the foregoing reasons, this action must be dismissed with prejudice for lack of subject
matter jurisdiction or, in the alternative, for failure to state a claim.
/sI Phil MacWilliams

That Plaintiff is seeking to hold the United States liable for a violation of this federal
statute through an FTCA action is made clear in the Complaint, where Plaintiff argues the treble
damages allowed under the ATA are not precluded by the FTCA. See Compl. TJ 85-89.
Case 3:17-cv-02692-M Document 9 Filed 01/11/18 Page 34 of 34 PageiD 109
Trial Attorney
E-mail: phil.macwilliams:us oj .gov
U.S. Department of Justice
Civil Division, Torts Branch
1331 Pennsylvania Ave., NW
Room 8080N
Washington, DC 20004
Telephone: (202) 616-4285
Facsimile: (202)616-5200
CERT-IfICATE-OF.SERVICE
I hereby certify that on January 11, 2018, 1 caused to be served upon the following
counsel a true and correct copy of the United States' Motion to Dismiss for Lack of Subject
Matter Jurisdiction or. In The Alternative, Failure to State a Claim, the Memorandum In Support,
and the Appendix via ECF filing:

Trenton Roberts
Roberts & Willie, PLLC
2000 S. Dairy Ashford. Suite 390
Houston, Texas 77077
Phone: 832) 328-7345
Email: trenton@robertsandwillie.com
Attorney for Plaintiff
Is! Phil MacWilliams


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Case 3:17cv-02692M Document 8 Filed 01/11/18 Page 1 of 2 PagelD 73

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS FOR

accompanying memorandum in support. In addition, Dctbndant United States is filing an

appendix in support of this motion to dismiss.

Date: January 11, 2018 Respectfully submitted,

JAMES a TOUHEY, JR.

Defendant United States' Motion to Dismiss 1

/s! Phil Mac\Villiams

Attorneys for the United States of America

and the Appendix via ECF filing:

/s/ Phil MacWilliams

Defendant United States' Motion to Dismiss- 2

UNITED STATES DISTRICT COURT

DEFENDANT UNITED STATES OF AMERICA'S MEMORANDUM IN SUPPORT OF

JAMES G. TOUHEY, JR.

Attorneys for the United States of America

A.H. Belo Coip. v. Corcoran,

Aiii1ar v. ('has/a in,

ALX El Dorado, Inc. v. United States,

Ainato v. United States,

Ashley v. United States,

Bell Au. Corp. V. Twoinblv,

Berkovit. v. United States,,

Brva,i v. United States,

Buchanan i United States,

('enteq Rca/tv, Inc. v. Siegler,

Collins v. Morgan Stanley Dean Witter,

Crenshaw v. United States,

Memorandum in Support of Motion to Dismiss ii

Dale/tue v. United States,

Drake r. Panama Canal Gomm *1?.,

Faneca v, United States,

Fin. Acquisition Paiineis [P. v. Blackweil,

Flatninia v. United Slates,

Flax v. United States,

Frigard v. United States,

Georgia Gas. & Stir. Co. v. United Slates,

Gonalez v. United States,

Greater Houston Transp. Co. v. Phillips,

Greater Houston Transp. Co.,

Huddleston v. United Stales,

Memorandum in Support of Motion to Dismiss -

In re Supreme Beef Processo,, Inc.,

Jet Industries, Inc. v. United States

McElro v. United States,

Mid States Development, L.L. C. v. Fidelity Nat. Title Ins. Co.,

olo/ v. United States,

Nat '1 Rifle Ass 'ii of Ain. V. Reno,

Nishimatsu cons:, Co. v. Houston Nat'! Bank,

Norris v. Hearst Trust,

Memorandum in Support of Motion to Dismiss iv

Otis Eng 'g Corp. v. Clark,

Pau v. United States,

Pooler v. United States,

Pooler v. United States,

Randall D. Wolcott, M.D., P.A. v. Sebelius.

Sale/i i'. United States,

San Benito Bank & Trust Co. v. Landair Travels,

S/ui/er v. United States,

Smith v. United States,

Smith v. United States,