parastatal organization of South Africa" were barred. See 52
Fed. Reg. 9982 (Mar. 27, 1987). The State Department published a
list of such organizations, but warned that the list was "not
all-inclusive" and advised importers that "[b]efore making a
commitment to import from South Africa, importers may wish to
seek guidance from the Office of Southern African Affairs . . .
to ascertain whether a corporation, partnership, or entity has
been identified as a parastatal organization." Id.
By mid-1994, imports from South Africa had become generally
permissible, yet, the products of certain companies remained
banned. On June 30, 1994, and extending through the time when
Plaintiff applied for ammunition import permits, the United
States Government imposed a specific ban on all export licenses
for products to and imports from Armscor (an arms manufacturing
company) and its associated entities because of a 1991
indictment of Armscor. See 59 Fed. Reg. 33811 (June 30, 1994).
Under BATF regulations, persons seeking to import defense
articles, including ammunition, into the United States must
obtain a permit from the agency. See 27 C.F.R. § 47.41(a).
BATF requires prospective importers of ammunition to apply for a
permit by completing and filing an ATF Form 6, Part I.
27 C.F.R. § 47.42(a). Item 8(a) on the Form 6 requires applicants to
provide the name and address of the manufacturer of the
ammunition they wish to import.
Plaintiff Appleton was a licensed arms dealer under the AECA.
In the fall of 1994, he submitted five applications for import
permits expressly designating "State Arsenal Republic of South
Africa" as the manufacturer of the ammunition he sought to
import. Between October 1994 and January 1995, BATF approved all
five permits. Following approval of the first permit, Plaintiff
contracted to purchase a quantity of ammunition from an arms
dealer in Great Britain and to re-sell the ammunition to a buyer
in the United States. After some of the ammunition arrived in
the United States in February 1995, BATF learned that it had
been manufactured by Pretoria Metal Pressings Ltd. ("PMP"), a
company affiliated with Armscor and on a list of proscribed
companies whose products were barred from importation into the
United States. BATF thereupon revoked all five of Plaintiffs
permits because the importation of goods made by PMP violated
United States policy.*fn2 Plaintiff was thus unable to
complete his proposed business transactions. He subsequently
brought this claim under the Federal Tort Claims Act,
28 U.S.C. § 1346(b)(1) and 2671-2680 ("FTCA").
II. Procedural Background
Plaintiffs Complaint initially consisted of three counts. The
Court granted Defendant's motion to dismiss Counts I and III of
Plaintiffs Complaint.*fn3 The Court
has addressed Count II of the Complaint, alleging BATF's
negligent approval of the permit applications, on three separate
occasions. On August 31, 1999, the Court rejected Defendant's
assertion of the discretionary function exception on the grounds
that a genuine issue remained as to "whether or not BATF
exercised a policy-based discretion in approving Mr. Appleton's
applications and whether or not BATF acted negligently in
approving those applications." Appleton, 69 F. Supp.2d at 98.
In early 2000, Defendant again argued that Plaintiffs
remaining claim was barred by the discretionary function
exception, but also added a defense based on Plaintiffs
contributory negligence and his inability to prove the elements
of negligence. On May 18, 2000, the Court, in denying
cross-motions for summary judgment, found that genuine issues
remain as to whether the BATF examiner made a policy-based
discretionary decision not to investigate Plaintiffs designation
of an ammunition manufacturer [on the BATF import permit
applications] and "whether [B]ATF and/or Mr. Appleton acted
negligently in the approval of his applications." Appleton v.
United States, 98 F. Supp.2d 30, 42-43 (D.C. 2000).
In November, 2000, Defendant filed a Renewed Motion to Dismiss
Count II, asserting that this Court has no jurisdiction pursuant
to a misrepresentation exception to the Government's waiver of
sovereign immunity, 28 U.S.C. § 2680(h). This Court denied
Defendant's Renewed Motion to Dismiss Count II in a Memorandum
Opinion and Order dated January 3, 2001, and the case proceeded
to trial, by consent, before the undersigned on January 4 and 5,
2001. Plaintiffs sole remaining cause of action at trial was
based upon the Government's purported negligent approval of Mr.
Appleton's permit applications and its failure to request that
Plaintiff provide additional information regarding the
manufacturer of the ammunition.
At the trial held on January 4 and 5, 2001, counsel for both
parties agreed to the following stipulations: 1) Plaintiff was a
licensed arms dealer; 2) the term "State Arsenal, Republic of
South Africa" does not appear on any BATF list of proscribed
entities; 3) the name PMP does appear on the list of prohibited
companies; and 4) the ammunition, which is the subject of this
lawsuit, was manufactured in South Africa by PMP.
III. Legal Standards
A. Motion for Judgment
Fed.R.Civ.P. 50(a) provides in pertinent part that:
[If] there is no legally sufficient evidentiary basis
for a reasonable [fact finder] to find for [a] party
on [an] issue, the court may determine the issue
against that party and may grant a motion for
judgment as a matter of law against that party with
respect to a claim . . . that cannot under the
controlling law be maintained . . . without a
favorable finding on that issue.
"Rule 50 requires a court to render judgment as a matter of law
when a party has been fully heard on an issue, and there is no
legally sufficient evidentiary basis for a reasonable [fact
finder] to find for that party on that issue." Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 135, 120 S.Ct.
2097, 147 L.Ed.2d 105
(2000). "The standard for judgment as a matter of law under
Rule 50 mirrors the standard for summary judgment under Rule 56.
Thus, the court must review all of the evidence in the record
. . ." Id. (citing Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538;
Lytle v. Household Mfg., Inc., 494 U.S. 545, 554555, 110 S.Ct.
1331, 108 L.Ed.2d 504; and Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202.) See also
Celotex Corp. v. Catrett, 477 U.S. 317, 318, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986) (The moving party is "entitled to judgment as
a matter of law" because the nonmoving party has failed to make
a sufficient showing on an essential element of its case with
respect to which it has the burden of proof.)
Under District of Columbia law, which applies under the FTCA,
the plaintiff in a negligence action bears the burden of proof,
by a preponderance of the evidence, to demonstrate the
applicable standard of care, deviation from that standard, and
the causal relationship between the deviation and plaintiffs
injury. See Messina v. District of Columbia, 663 A.2d 535,
537-538 (D.C. 1995), citing Toy v. District of Columbia,
549 A.2d 1, 6 (D.C. 1988) (quotation omitted); see also Clark v.
District of Columbia, 708 A.2d 632, 634 (D.C. 1998) (citations
omitted); District of Columbia v. Price, 759 A.2d 181, 183
(D.C. 2000) (citation omitted). To allege negligence, a
complaint cannot merely make conclusory assertions but must
specify a negligent act and characterize the duty whose breach
might have resulted in negligence. District of Columbia v.
White, 442 A.2d 159, 162 (D.C. 1982) (citing Kelton v.
District of Columbia, 413 A.2d 919, 922 (1980)). Judgment as a
matter of law for the defendant is warranted if the plaintiff
has failed to present evidence on any element of his case
sufficient to permit a reasonable [fact-finder] to find in his
favor. Price, 759 A.2d at 183 (citing Grant v. District of
Columbia, 597 A.2d 366, 370 (D.C. 1991)).
A. Issues before the Court
Previously, the Court summarized the remaining issues for
trial as: 1) whether or not BATF exercised policy-based
discretion in approving Mr. Appleton's import applications; 2)
whether or not BATF acted negligently when it approved
Plaintiffs applications to import ammunition allegedly
manufactured by the "State Arsenal, Republic of South Africa;"
and 3) whether or not Mr. Appleton acted negligently when he
certified that the information provided on his applications was
"true and complete" without taking additional steps to discover
the true identity of the manufacturer of the ammunition.
Appleton v. United States, 69 F. Supp.2d 83, 93-94, 97-98 (D.C.
1999); Appleton v. United States, 98 F. Supp.2d 30 (D.C. 2000).
B. Plaintiffs Case-in-Chief
Plaintiffs case-in-chief consisted of testimony by John
Appleton; deposition testimony of Plaintiffs supplier, Mr. Tony
Slatter; and Plaintiffs exhibits (hereinafter referenced as
"Exhibit"). Mr. Appleton testified that Mr. Slatter, a United
Kingdom based importer and exporter of firearms, ammunition and
surplus military goods, contacted Plaintiff on or about
September 15, 1994, offering to sell 23 to 30 million rounds of
ammunition. Mr. Slatter indicated that the ammunition was from
South Africa. Plaintiff, generally aware of restrictions imposed
on imports from South Africa, telephoned Ms. Ginger Alford, a
BATF employee and liaison officer between BATF and the State
to determine if the ammunition was importable. He testified that
when he inquired whether ammunition from South Africa was
importable, Ms. Alford stated "yes and no", indicating that it
depended on the company that manufactured the ammunition. See
Transcript Vol. I, p. 42, lines 3-25; p. 43, lines 1-3, 9-25; p.
44, lines 1-2 (January 4, 2001). Ms. Alford was however unable
to provide Plaintiff with a list of the companies whose products
were not importable. See Transcript Vol. I, p. 44, lines 3-7
(January 4, 2001). Plaintiff also testified that no such list
was publicly available until after his permits were revoked,
when a list was, according to Mr. Appleton, published in a
Federal Firearms Licensee Newsletter. See Exhibit 5, Federal
Firearms Newsletter.*fn4 Plaintiff was told he could submit
his import applications and ascertain whether the ammunition
could be imported.
Mr. Appleton testified that prior to completing the Form 6 ATF
applications [Exhibits 7-11], he asked Mr. Slatter to provide
the name of the manufacturer of the ammunition. See Transcript
Vol. I, p. 50, lines 16-23 (January 4, 2001). Mr. Slatter told
Plaintiff that he was unable to identify a manufacturer from the
headstamp on the ammunition [an identifying mark stamped on the
end of each cartridge] and he also refused to reveal his
supplier's name, claiming that it was "proprietary information."
See Transcript Vol. I, p. 50, lines 24-25; p. 51, lines 1-4;
p. 53, lines 21-25; p. 54, line 1 (January 4, 2001). Mr. Slatter
confirmed that he never told Plaintiff where he purchased the
ammunition, and "for all [Appleton] knew when he agreed to buy
the stuff, [he] could have been getting it from Outer
Mongolia. . . . [a]ll [Plaintiff] knew, which he openly told
BATF is that it was originally made in South Africa."*fn5
See Slatter Dep. at p. 13, lines 3-8; see also Slatter Dep.
Exhibit 5, which is a facsimile to John Appleton with an
attached facsimile from Mr. Slatter to Mr. Brian D. Murphy [Mr.
Slatter's United States counsel].
Mr. Slatter told Mr. Appleton to use the term "State Arsenal,
Republic of South Africa" as the manufacturer of the ammunition.
See Slatter Dep. at p. 27, lines 19-23; p. 28, lines
2-9.*fn6 Plaintiff testified that he did not inquire further
of BATF whether State Arsenal of the Republic of South Africa
was a debarred entity nor did he submit any additional
information to BATF such as the headstamp markings or
a photograph of the marking on the casings of the ammunition.
See Transcript Vol. IA, p. 32, lines 24-25; p. 33, lines 1-8;
p. 25, lines 3-25; p. 26, lines 1-12 (January 4, 2001).
Plaintiff testified that in February 1995, after the five
permits had been issued, he learned that BATF was conducting an
investigation into who manufactured the ammunition to be
purchased. See Transcript Vol. I, p. 70, lines 12-25; p. 71,
lines 1-25; p. 72, lines 1-15 (January 4, 2001). The reason for
the investigation was BATF had learned that the manufacturer may
have been Pretoria Metal Pressings ("PMP"), a debarred company.
Id. Plaintiff contacted his supplier, Mr. Slatter, urging him
to again pursue the identity of the manufacturer. On March 6,
1995, Plaintiff received notice from BATF that his permits had
been revoked because the manufacturer was PMP, a subsidiary or
affiliate of Armscor. See Plaintiffs Exhibit 18, which is a
letter from BATF to Plaintiff, dated March 6, 1995.
Following Plaintiffs request for the name of the manufacturer,
Mr. Slatter contacted Armscor, and was advised that the
manufacturer of the ammunition was in fact Pretoria Metal
Pressings. Mr. Slatter testified during deposition that he
became aware that the ammunition was manufactured by Pretoria
Metal Pressings by no later than March 29, 1995, when he
received a facsimile from Armscor certifying the manufacturer of
the ammunition, and it is possible he was aware of the
manufacturer [PMP] prior to March 29, 1995. See Slatter Dep.
at p. 25, lines 1829 and p. 26, lines 1-13; see also Slatter
Dep. Exhibit 11, which is a copy of the March 29, 1995 facsimile
he received from Armscor.
C. Negligence by BATF in issuing an Import Permit is not
Actionable under the FTCA
Plaintiff predicates his only surviving claim for relief on
the theory that BATF's failure, prior to issuing the five
permits, "to determine that some state arsenals of South Africa
were ineligible for ammunition import permits approval"
constituted actionable negligence under the FTCA. See
Complaint Count Two ¶ 23. Essentially Plaintiff is alleging that
the Government was negligent in its review and approval of his
To prevail on a theory of negligence under the FTCA, Plaintiff
must initially meet two preconditions. First, he must show that
BATF owed him a duty which if breached entitled him to a claim
for damages and that he sustained damage as a result of such
breach of duty. 28 U.S.C. § 1346(b) authorizes suits against the
United States for damages:
for injury or loss of property . . . caused by the
negligence 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
In other words, the circumstances giving rise to Plaintiffs
claim of negligence must be analogous to events or circumstances
which, if the Defendant were a private entity would give rise to
a tort claim and liability under District of Columbia statutory
or decisional law. If the alleged conduct would not impose
liability in the private sector under local law, then the court
lacks jurisdiction under the FTCA. The act does not create a new
or novel cause of action; it waives sovereign immunity for acts
of government officers which, if they were private
non-government employees, would be recognized under state law as
tortious. Even if a