motion for summary judgment on those counts.
Count 2: ATF's Discretion. Secondly, the court found that
the record left a genuine issue as to whether or not ATF
employees exercised discretion in approving Mr. Appleton's
import applications. Accordingly, the court denied without
prejudice the Government's motion to dismiss count two (the
negligence claim) and permitted Mr. Appleton to conduct
discovery to obtain evidence on the discretion issue.
Count 2: Negligence and Contributory Negligence. Lastly, the
court found there was a genuine issue as to whether or not ATF
and/or Mr. Appleton acted negligently. Accordingly, the court
denied without prejudice the plaintiffs motion for summary
judgment on count 2 and authorized discovery on the issue of
each party's negligence.
As directed by the August 31, 1999 Order, Mr. Appleton and the
Government conducted supplemental discovery and filed renewed
motions for summary judgment on count 2. For the reasons set
forth below, the court will deny both parties' motions.*fn2
Mr. Appleton is an American businessman licensed to buy and
sell arms under the Arms Export Control Act ("AECA"),
22 U.S.C. § 2778 and 22 C.F.R. § 120130. In 1994, British arms broker
Tony Slatter offered to sell Mr. Appleton ammunition imported
from South Africa. Mr. Appleton submitted five "Form 6" import
permit applications to ATF listing "State Arsenal, Republic of
South Africa" as the manufacturer of the ammunition. (See
Appleton Dec. ¶ 6.) ATF approved the permits between October
1994 and January 1995. Mr. Appleton then contracted to resell
the ammunition to an arms dealer in Illinois. (See Comp. ¶
Mr. Appleton maintains that he supplied all the information he
could reasonably obtain about the identity of the manufacturer.
Mr. Appleton asked Mr. Slatter for information about Slatter's
supplier and about the original manufacturer. Mr. Slatter
professed not to know who the manufacturer was and also
indicated that he was unwilling to divulge the identity of his
supplier for proprietary reasons. In other words, Slatter
refused to identify his supplier out of concern that Mr.
Appleton would contact the supplier directly and "cut out"
Slatter. (See Pl.'s Mot. for Summ.J. at 5-6.)*fn3
Nonetheless, the Government maintains that Mr. Appleton could
have asked Mr. Slatter for additional information at the time of
their negotiations which would have revealed that the ammunition
was in a crate marked "ARMSCOR." ATF was able to determine the
manufacturer based on Mr. Appleton's submission of a drawing of
the "headstamp" markings on the ammunition during a subsequent
investigation. The ATF argues that Mr. Appleton should have
requested a sample of the ammunition and/or a reproduction of
the headstamp markings from Mr. Slatter before submitting his
applications. (See Opp. to Pl.'s Mot. for Summ.J. at 8-10.)
When the ammunition arrived in the United States in February
initiated an investigation into the identity of the
manufacturer. ATF discovered that the ammunition had been
manufactured by Pretoria Metal Pressings Ltd. ("PMP") in 1983,
delivered to the South African Defense Force directly after
production and sold at some unspecified date to a British
concern called TSF. (See Pl.'s Mot. for Summ.J., Ex. 20.)
Following a State Department policy which debarred certain arms
manufacturers related to the defunct South African apartheid
regime, including PMP, ATF revoked Mr. Appleton's permits in
March 1995. See 27 C.F.R. § 47.55. Subsequently, complying
with the legal prohibition on importing PMP-made ammunition, Mr.
Appleton breached his contract to resell the ammunition.
In May 1996, Mr. Appleton filed an administrative claim with
ATF. ATF denied the claim in August 1997. Mr. Appleton
subsequently initiated the instant action.
A. Legal Standard
Summary judgment shall be granted if the record before the
court (including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits supporting and
opposing the motion) shows that there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. See Fed.R.Civ.P. 56(c); Crawford v. Signet
Bank, 179 F.3d 926, 928 (D.C. Cir. 1999). A fact is material if
its existence or nonexistence might affect the outcome of the
action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Farmland Indus. v.
Grain Board, 904 F.2d 732, 735-36 (D.C. Cir. 1990). There is no
genuine issue as to a material fact if the record presented on
motion, taken as a whole, could not lead a rational trier of
fact applying the relevant burden of proof to find for the
non-moving party. See Anderson, 477 U.S. at 248, 254-55,
106 S.Ct. 2505; Brees v. Hampton, 877 F.2d 111, 117 (D.C. Cir.
1989). In deciding whether there is a genuine issue of material
fact, the court is to view the record in the light most
favorable to the party opposing the motion, giving him the
benefit of all favorable inferences that can reasonably be drawn
from the record and the benefit of any doubt as to the existence
of any genuine issue of material fact. See Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598,
26 L.Ed.2d 142 (1970); Martin v. DCMPD, 812 F.2d 1425, 1435 (D.C. Cir.
B. The Cross-Motions for Summary Judgment on Count 2
The lone count remaining in Mr. Appleton's complaint, the
second count, alleges that ATF was negligent in its approval of
his permit applications. See generally Compl. ¶¶ 23-24.
Specifically, Mr. Appleton alleges that ATF should have realized
that ammunition from some "state arsenals" of South Africa were
ineligible for importation into the United States. (See Comp.
¶ 23.) The Government responds that such a negligence claim is
barred by the discretionary-function exception of the Federal
Tort Claims Act ("FTCA"), Title 28 U.S.C. § 2680(a) ("the
discretionary exception"). Furthermore, the Government contends,
even if the negligence claim is not barred by the discretionary
exception, there is no genuine dispute over the fact that ATF
was not negligent. Lastly, the Government contends that even if
the ATF was negligent in approving Mr. Appleton's permits, his
contributory negligence bars him from recovering.
This court's August 31, 1999 Opinion found that the record as
it then stood left a genuine issue as to whether ATF employees
exercised discretion in reviewing Mr. Appleton's import
applications. Consonant with that Opinion, the parties conducted
supplemental discovery to gather evidence bearing on the issues
of ATF discretion, ATF's alleged negligence and Mr. Appleton's
alleged contributory negligence.
Based upon the enhanced record, the court concludes that
neither Mr. Appleton
nor the ATF has shown the lack of a genuine issue as to whether
ATF employees exercised discretion in approving Mr. Appleton's
permits. As a consequence, at this juncture the court will not
hold that the FTCA's discretionary-function exception shields
ATF from Mr. Appleton's negligence claim.
The court then turns to the underlying issue of the parties'
alleged negligence. Based on the enhanced record, the court
concludes that there remain genuine issues as to whether ATF was
negligent and whether Mr. Appleton was contributorily negligent.
Short of an amicable resolution of the negligence claim, then,
the discretionary-function, negligence and
contributory-negligence issues will be decided at trial.
1. The Evidence Leaves a Genuine Issue as to Whether ATF
Exercises Discretion in Reviewing Import Applications which
Use Generic Manufacturer Terms such as "State Arsenal"
The FTCA provides, in pertinent part, that the United States
is immune from:
Any claim based upon an act or omission of an
employee of the Government . . . 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 discretionary function exception was
meant to shield the Government from suits challenging
"legislative and administrative decisions grounded in social,
economic, and political policy." See United States v. S.A.
Empresa de Viacao Aerea Rio Grandense ("Varig Airlines"),
467 U.S. 797, 813, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). The
exception "protects only governmental actions and decisions
based on considerations of public policy." See Berkovitz v.
United States, 486 U.S. 531, 537, 108 S.Ct. 1954,
100 L.Ed.2d 531 (1988). Congress created the exception "to protect the
Government from liability that would seriously handicap
efficient government operations." United States v. Muniz,
374 U.S. 150, 163, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963).
Furthermore, "even the negligent performance of a discretionary
function does not subject the government to liability under the
Federal Tort Claims Act." Red Lake Band of Chippewa Indians v.
United States, 800 F.2d 1187, 1194 (D.C. Cir. 1986). Absent
valid constitutional concerns, this court will not substitute
its judgment for that of the State Department or ATF on a matter
of policy or discretion. See generally Cope v. Scott,
45 F.3d 445, 448 (D.C. Cir. 1995) ("[The discretionary function
exception] was designed to prevent the courts from `second
guessing,' through decisions in tort actions, the way that
government officials choose to balance economic, social, and
political factors as they carry out their official duties.").
For the reasons which follow, the court concludes there is a
genuine issue as to whether the ATF exercised discretion in
approving Mr. Appleton's permits. Preliminarily, the State
Department gave ATF a list of proscribed companies related to
the debarred manufacturer ("ARMSCOR") and directed ATF to
cross-check import applications against this list. This fact is
confirmed by ATF's own Chief of Firearms and Explosives Imports,
Lawrence White. Mr. White stated, "ATF approved [Mr.
Appleton's] permits based on information provided on the
Forms 6 that the State Arsenal was the manufacturer of the ammunition
and the fact that State Arsenal was not on the list of
companies affected by the State Department's ARMSCOR policy."
(White Dec. ¶ 6) (emphasis added.)
Standing alone, Mr. White's description of the approval
process left little room for ATF employees to exercise
"discretion" as that term is defined under the Government's own
reading of precedent. In its earlier motion to dismiss, the
Government quoted Thompson v. United
States, 592 F.2d 1104, 1111 (9th Cir. 1979), for the
proposition that a discretionary decision requires "the
balancing of several factors made without reliance upon any
readily ascertainable rule or standard." (See Mot. to Dis. at
17.) Conversely, the Government states that a
non-discretionary decision is one in which employees "do no
more than cross-check `facts against a clear rule or standard.'"
See id. at 17 (quoting Hendry v. United States,
418 F.2d 774, 782 (2d Cir. 1969)); see generally Beins v. United
States, 695 F.2d 591, 602 (D.C. Cir. 1982) (matching individual
facts to mandated policy or clear standards is a
non-discretionary function within the meaning of § 2680(a)).
Taken alone, Mr. White's explanation suggests that the ATF
examiner did not exercise discretion but rather merely checked
"State Arsenal, Republic of South Africa" against the debarment
list, did not find any entity on the list bearing that exact
name, and so approved the application without further
Indeed, as Mr. Appleton points out, the ATF's Guidelines for
permit examiners could easily be read not to confer any
discretion to accept a "State Arsenal of South Africa"
designation at face value without investigation. For instance,
the Guidelines state that in step 8 of the review process, the
examiner "[d]etermines if firearms, ammunition, or implements of
war on the application are importable." See Pl.'s Mot. for
Summ.J., Jeffries Decl., Ex. A. To make this determination, a
handwritten notation on the Guidelines advises, the examiner
should "Check State Bull." Id. The court construes this as a
directive to check the State Department's Bulletin which lists
debarred entities. The Guidelines then specifically advise the
examiner, "If additional information is needed to determine
import status, the application is returned with a form . . .
letter requesting additional information." Id. at Guidelines
Step 13 (emphasis added). One could readily argue that an
application listing merely "State Arsenal of South Africa"
qualifies as one where "additional information is needed to
determine import status." Under that reading, the Guidelines
would leave the examiner no choice but to return the application
with a letter requesting more specific information about the
manufacturer's identity. After all, the Guidelines direct that
"the application is returned" with a letter requesting more
information, not "the application may be returned." On this
view, the examiner would have violated agency directives by
failing to return Mr. Appleton's application with a letter
requesting manufacturer information more precise than the
generic State Arsenal designation. This is significant, because
the discretionary exception would not shield the agency if the
examiner's conduct violates a mandatory agency directive. See
Red Lake Band of Chippewa Indians v. United States,
800 F.2d 1187, 1196 (D.C. Cir. 1986) (the Federal Tort Claims Act's
discretionary exception does not apply if an employee violates
Moreover, as Mr. Appleton points out, the ATF still has not
produced any statute, regulation or internal policy which
explicitly grants ATF examiners discretion to determine whether
or not to investigate when an applicant lists a generic term
like "State Arsenal" as the manufacturer. This omission does
tend to undermine the ATF's contention that its examiner had,
and exercised, such discretion in Mr. Appleton's case.
In the papers submitted on the renewed motions for summary
judgment, however, the ATF adduces evidence from which a
reasonable factfinder could conclude that ATF employees had
discretion in reviewing permit applications — in particular, the
discretion not to investigate to make sure the generic term
"State Arsenal of South Africa" did not in fact refer to an
entity whose imports would be prohibited if its exact name were
known. Specifically, the ATF issued a memorandum on January 11,
1993, entitled "Firearms and Explosives Imports Branch
("Procedures"), to guide examiners in their review of import
permit applications. See White Decl. II ¶ 6 and Ex. 2. The
Procedures provide, in pertinent part,
The attached procedures are provided for your
guidance in accomplishing Imports Branch functions.
The procedures are to be considered as guidelines and
not as superseding any law, regulation, directive or
policy established by higher authority. Also, the
procedures do not cover all situations and therefore,
may be modified for unique or unusual situations
consistent with the law or regulations, or as
directed by higher authority.
Id. (italics added). This is hardly compelling evidence that
the ATF examiner had discretion not to investigate, particularly
absent any statement by the examiner that she in fact exercised
discretion under this provision. On the evidence presented by
the parties, however, the court cannot quite say a reasonable
factfinder could not find that the examiners have discretion
not to investigate. Specifically, an application which supplies
an accurate generic manufacturer description which is not on the
list of debarred entities but may nonetheless signify a
debarred entity, may be one of the "unusual situations"
contemplated by the ATF's Procedures. As the ATF points out, the
written Procedures are very broad when it comes to determining
whether an item is importable, and they do not prescribe an
exact course of action for the examiner. See Def.'s 2d Mot.
for Summ.J. at 8 (citing White Decl. II ¶ 7).
As the Chief of the ATF's Firearms and Explosives Imports
branch states in an affidavit, the agency's usual practice is
simply to approve an application which lists a manufacturer name
which is not on the debarment list. The ATF's Procedures neither
require nor preclude further investigation into a generic
manufacturer designation which is not itself on the debarment
list. See White Decl. II ¶ 9. That suggests that further
investigation into a generic manufacturer term, if any, occurs
at the discretion of the individual examiner. Cf. Gaubert, 499
U.S. at 322, 111 S.Ct. 1267 (because policy governing federal
regulators managing the day-to-day activities of a federal
savings and loan did not "specifically prescribe a course of
action," the policy imparted discretion to the regulators);
Cope v. Scott, 45 F.3d 445, 450 (D.C. Cir. 1995) (the relevant
"statutes do not contain directives so precise that they
constrain [the agency's] control over the surface of Beach
Drive. . . . Absent such directives, any action taken (or not
taken) regarding the matter is an exercise of discretion.");
see also Irving, 162 F.3d at 163 (1st Cir. 1998) (OSHA
compliance inspector's review is discretionary where the
"regulations do not prescribe any specific regimen governing the
scope or detail of general administrative inspections"); Sabow
v. United States, 93 F.3d 1445, 1452 (9th Cir. 1996)
(investigative acts of Naval Investigative Service or JAG Corps
agents found to be discretionary where their action or inaction
did not violate any mandatory directive); Hendry v. United
States, 418 F.2d 774, 780-81 (2d Cir. 1969) (where there is no
"single, known, objective standard . . . then the process of
certifying [approving a permit], insofar as it involves groping
for a standard, is within the discretionary exemption of the
[Federal Tort Claims] Act").
Significantly, the ATF does provide a concrete example where
an examiner encountered a manufacturer designation which was not
on the debarment list but decided to investigate further. An
examiner elected to investigate an application listing
"Government Arsenal, Pretoria, South Africa." When the examiner
discovered that the "Government Arsenal" in question was a
debarred entity, the ATF denied the application. See White
Decl. II ¶ 9 and Ex. 5. This is consistent with the premise that
ATF examiners have discretion to "look behind" a generic
manufacturer term when the term raises enough suspicion that it
may refer to a debarred entity. What constitutes "enough"
suspicion? Under the ATF's account, that
judgment is left up to the individual examiner with no explicit
or formal guidance from the agency.
In fairness to Mr. Appleton, his generic manufacturer
designation, "State Arsenal, Republic of South Africa", is
nearly identical to the generic manufacturer term which led
another examiner to investigate further, "Government Arsenal,
Pretoria, South Africa." Mr. Appleton might wonder, if one
examiner chose to investigate "Government Arsenal, Pretoria,
South Africa," shouldn't Mr. Appleton's examiner have
investigated his "State Arsenal, Republic of South Africa"
designation? This is a fair question, but even an affirmative
answer cannot warrant summary judgment for Mr. Appleton on the
discretion issue. For purposes of the discretion analysis, the
court will assume arguendo that (1) the other examiner acted
prudently in investigating rather than accepting "Government
Arsenal, South Africa" at face value and (2) there is no
satisfactory explanation for the inconsistent treatment of these
two essentially identical generic manufacturer designations,
except the "explanation" that the examiners made opposite
discretionary decisions (i.e., one thought an investigation was
worthwhile and the other did not). Even these assumptions,
however, are consistent with the ATF's contention that its
examiners exercised discretion in deciding when a generic
manufacturer designation raised enough suspicion to warrant
investigation into the manufacturer's identity. If the other
examiner acted prudently in investigating "Government Arsenal,
South Africa," perhaps Mr. Appleton's examiner was negligent
in forgoing investigation of his "State Arsenal, Republic of
South Africa" designation. But even a negligent discretionary
decision is shielded by the FTCA's discretionary-function
exception. See 28 U.S.C. § 2680(a) (FTCA shields discretionary
decisions "whether or not the discretion involved be abused").
In short, if the court ultimately finds the ATF's approval of
his permits was shielded by the discretionary function, it
will not be material that Mr. Appleton's examiner acted
inconsistently with other examiners facing the same type of
generic manufacturer designation.
Taking another approach in support of his contention that ATF
examiners do not have discretion, Mr. Appleton points to letters
where the ATF explained that State had directed it to
automatically deny import applications pertaining to ARMSCOR
or related entities. One such letter, issued in October 1994,
The Department of State has reviewed your application
to import the ammunition. They have advised us to
deny your application. It is the policy of the
Department of State to deny all export license
applications and other requests for approval
involving, directly or indirectly, the Armaments
Corporation of South Africa, Ltd., a/k/a ARMSCOR,
. . . and any . . . associated companies. . . .
Pl.'s 2d Mot. for Summ.J., Ex. 11. These denial letters, Mr.
Appleton contends, "reflect that in processing import permit
applications for foreign policy considerations [the ATF
examiners] are simply parroting general policy considerations
established by the Department of State." Pl.'s 2d Mot. for
Summ.J. at 11. Such letters are indeed evidence that the ATF has
no discretion to grant applications to import/export armaments
which are manufactured by ARMSCOR or related debarred entities.
This is of no avail to Mr. Appleton, however, because the ATF
has never claimed that its examiners have discretion to approve
armaments when the manufacturer listed by the applicant is a
debarred entity. The ATF has never denied that if an
application's manufacturer entry contains the name of a debarred
entity, the examiner has no choice but to deny the application
in compliance with the directive of the State Department. But
proof that ATF has no discretion to approve imports it knows
are made by a debarred entity begs the central question,
"Do ATF examiners have discretion not to investigate an
application which uses a generic manufacturer term which might
represent a debarred entity?"*fn4
Mr. Appleton also tries another tack in contending that the
reason the ATF did not "look behind" his "State Arsenal"
designation was simple oversight, not a conscious discretionary
decision that further investigation was inadvisable. See Pl.'s
2d Mot. for Summ.J. at 17 ("Simple BATF negligence rather than
an exercise of discretion was the mechanism which injured
Appleton."). Mr. Appleton proffers evidence showing that, at the
same time the ATF approved his application, it denied another
application which listed "Government Arsenal, Pretoria, South
Africa" as the manufacturer. See Pl.'s 2d Mot. for Summ.J. at
11-12 and Ex. 13, Ex. 13A. In fairness to Mr. Appleton, evidence
that the ATF approved his "State Arsenal" applications but
simultaneously denied another is consistent with his
allegation that the ATF's failure to deny his applications was
negligent. That evidence, however, is also consistent with the
ATF's theory of the case: when confronted with an application
listing "State Arsenal of South Africa" as the manufacturer,
each individual examiner had discretion whether or not to
investigate to "pin down" a more precise identity for the
manufacturer. A reasonable factfinder might not find the ATF's
explanation of the discrepancy to be credible, but issues of
credibility or the relative weight of competing evidence are not
properly resolved on motions for summary judgment.
Mr. Appleton also proffers evidence that "a permit
[application] listing an ambiguous but non-ARMSCOR entity as the
manufacturer was challenged and disapproved the same week as
Appleton's first permit was approved." Pl.'s 2d Mot. for Summ.J.
at 14 (citing Ex. 31). That application listed "PMF, So. Africa"
as the manufacturer. Id., Ex. 31. The examiner's note on the
rejected application reads, "Returning as cancelled. Could not
get satisfaction [that] the ammo was not one of the problem
companies." Id., Ex. 31A. Similarly, in October 1994 the ATF
rejected an application which listed the manufacturer merely as
"Government Arsenal, Pretoria, South Africa." See Pl.'s 2d
Mot. for Summ.J., Ex. 13A. Because the debarment list does not
include an entity named "Government Arsenal, Pretoria, South
Africa," the ATF examiner in that case must have elected to
investigate further and found out that the manufacturer
represented by the umbrella term "Government Arsenal" was
actually a debarred entity. These rejected applications do show
that, unlike in Mr. Appleton's case, ATF examiners sometimes
investigate further when confronted with a South African
manufacturer entry which could represent a debarred entity.
Again, however, they do not necessarily show that the
examiners had no discretion to do otherwise.
While casting serious doubt on the ATF's argument that its
examiner exercised discretion in reviewing Mr. Appleton's
applications, Mr. Appleton's evidence does not rule out that
possibility as a matter of law. The evidence adduced by Mr.
Appleton does not logically preclude this court from concluding,
ultimately, that ATF examiners may decide whether their time is
well spent investigating a generic "State Arsenal" application.
By comparison, in Varig Airlines the Supreme Court held that
the FAA's decision to certify certain airplanes as flight-worthy
without first inspecting them was protected by the FTCA's
discretionary exception. Even if the FAA's employees were
negligent in checking airplanes, their acts were protected
because they "were specifically
empowered to make policy judgements regarding the degree of
confidence that might reasonably be placed in a given
manufacturer, the need to maximize compliance with FAA
regulations, and the efficient allocation of agency resources."
Varig Airlines, 467 U.S. at 820, 104 S.Ct. 2755. Likewise, the
court here could find that the ATF examiner decided that in
light of the huge volume of applications to be processed by each
examiner, her time would be better spent, and the policies
guarding against import of prohibited armaments better served,
if she did not investigate what Mr. Appleton meant by the term
"State Arsenal, Republic of South Africa." Cf. Mihaylov v.
United States, 70 F. Supp.2d 4, 8 (D.C. 1999) (Secret Service
may choose where to allocate personnel as part of its weighing
of "competing resources and priorities").*fn5 In this vein,
the statement of the Chief of the ATF's Firearms and Explosives
branch, Lawrence White, suggests that it would be infeasible for
examiners to independently investigate every application's
manufacturer designation. See White Decl. II ¶ 2 and Def.'s 2d
Mot. for Summ.J. at 20-21 (in 1994-1995, about six ATF Imports
Branch examiners reviewed 25,000 Form 6 import applications,
which works out to 45 applications per examiner per week, in
addition to the examiners' other duties).
Consequently, the court finds there is still a genuine issue
as to whether the ATF had and exercised discretion not to
investigate Mr. Appleton's "State Arsenal" designation.
Accordingly, the court denies both parties' motions for summary
judgment on the FTCA discretionary-function issue.
On the other hand, at trial, it will not be enough for the ATF
to assert merely that because the examiner did not investigate,
that omission "must have been" the product of a conscious,
policy-based decision not to investigate. Rather, the ATF must
convince the factfinder that the examiner's decision to accept
the State Arsenal designation rather than investigate was a
conscious decision based in some way on policy considerations,
even if only a consideration as to the best use of agency
resources. As the Supreme Court has explained, if an agency's
policy leaves no room for an official to exercise policy
judgment "in performing a given act, or if the act simply does
not involve the exercise of such judgment, the discretionary
function exception does not bar a claim that the act was
negligent or wrongful." See Berkovitz, 486 U.S. at 546-47,
108 S.Ct. 1954; see also Sami v. United States, 617 F.2d 755, 766
(D.C. Cir. 1979) (the government can be held responsible for
"any negligent execution of admittedly discretionary policy
judgments [the debarment of PMP] where the decisions required
for the execution did not themselves involve the balancing of
public policy factors."). Lastly, the defendant must show not
just that the examiner made a decision not to investigate, but
also that the decision was based in some way on policy concerns,
including the efficient use of agency resources. See Orlikow v.
United States, 682 F. Supp. 77, 82 (D.C. 1988) (even though a
decision is being made, if that decision is not grounded in
public policy concerns, it is not immunized; to hold otherwise
would cause § 2680 to "swallow [the FTCA's] waiver of sovereign
2. The Record Leaves Open a Genuine Issue as to Whether ATF
and Mr. Appleton were Negligent.
Denying summary judgment on the discretion issue leaves open
the possibility that the court will find the
discretionary-function exception does not immunize the