186 F. Supp. 3d 1137
W.D. Wash.2016Background
- Plaintiff, a Washington ammunition wholesaler, obtained ATF import permits and imported over 37 million rounds of 7N6 5.45x39 mm ammunition; ATF later classified the rounds as "armor piercing" and banned their importation.
- Plaintiff alleges ATF acted arbitrarily and capriciously (APA) and brings an FTCA negligence claim that ATF negligently reviewed and approved its Form 6 import applications.
- Defendants (United States and ATF) moved to partially dismiss, arguing the court lacks jurisdiction over the FTCA claim based on: no private-analogue, the FTCA discretionary-function exception, detention-of-goods and interference-with-contract exceptions.
- The ATF submitted a declaration explaining Form 6 procedures: applications are reviewed by deputies/examiners, specialists may be consulted, and permits may be revoked at any time; review procedures afford employee judgment.
- The court considered both facial and factual jurisdictional challenges and found the Majors declaration admissible for the factual-discretion analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA applies given lack of private analogue | FTCA negligence claim is a general negligence claim with an available private analogue | No reasonable private analogue exists for federal import regulation; sovereign function exclusively federal | Dismissed: no private analogue; FTCA claim not permitted |
| Whether discretionary-function exception bars FTCA claim | Statute banning armor-piercing ammo prescribes non-discretionary duties, so exception doesn't apply | ATF’s review, permitting, and revocation involve judgment and policy choices; exception applies | Dismissed: discretionary-function exception applies |
| Whether court may consider agency declaration in factual jurisdictional attack | Majors declaration is irrelevant and raises separation-of-powers concerns | Declaration is relevant to factual challenge and discretion question | Court considered declaration and used it in factual review |
| Whether other FTCA exceptions (detention of goods / interference with contracts) preclude suit | Plaintiff did not rely primarily on these exceptions | Defendants argued detention and contract-interference exceptions also apply | Court relied on private-analogue and discretionary-function grounds and dismissed FTCA claim with prejudice |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (jurisdiction is threshold issue)
- Dalehite v. United States, 346 U.S. 15 (1953) (planning-level governmental decisions not actionable under FTCA)
- Indian Towing Co. v. United States, 350 U.S. 61 (1955) (operational negligence actionable; contrasts planning discretion)
- United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797 (1984) (discretionary-function exception covers regulatory decisions)
- Berkovitz v. United States, 486 U.S. 531 (1988) (two-step test: judgment/choice and policy considerations)
- United States v. Gaubert, 499 U.S. 315 (1991) (discretionary function can apply to day-to-day regulatory choices)
- Appleton v. United States, 180 F. Supp. 2d 177 (D.D.C. 2002) (no private analog for negligent review of import applications)
- Block v. Neal, 460 U.S. 289 (1983) (limits on reading FTCA as authorizing broad negligence claims)