Greg Zanis, left, and the Rev. Van Jordan write the names of victims on crosses along the edge of a field next to Sutherland Springs First Baptist Church in Sutherland Springs, Tex., on Nov. 8, 2017. (Carolyn Van Houten/The Washington Post)
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The Justice Department is proceeding with its appeal of a lawsuit that found the federal government partially responsible for the 2017 mass shooting at a church in Sutherland Springs, Tex., after the government ended settlement talks with the victims. Critics say the move could undermine the Biden administration’s position on background checks and tougher restrictions on guns.

Twenty-six people were killed and another 20 injured in the 2017 shooting at First Baptist Church of Sutherland Springs. In a July 2021 ruling, a U.S. district judge found that the government was “60 percent liable” for the attack because it did not submit records that should have prevented the shooter from buying guns, among other missteps.

In February, the judge ordered the government to pay the victims more than $230 million in damages. But the Justice Department filed notice that it planned to appeal the ruling, a move that has left survivors struggling to pay expensive, ongoing medical bills related to their grievous injuries and ongoing trauma.

And in October, the Justice Department entered settlement talks with attorneys representing families of those killed and injured in the attack. Washington attorney Kenneth Feinberg, a renowned mediator known for overseeing the compensation fund for 9/11 victims, was tapped to lead the negotiations.

Feinberg had previously helped resolve two other lawsuits filed by mass shooting victims against the federal government.

In October 2021, the Justice Department agreed to pay $88 million to the families of nine people killed in the 2015 shooting at Emanuel AME Church in Charleston, S.C., to settle claims that background check errors allowed the gunman to buy a weapon. Weeks later, the government agreed to pay $127.5 million to the families of those killed in the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Fla., over claims that the FBI failed to act on tips about the gunman.

But after weeks of talks between the Justice Department and attorneys for the Sutherland Springs survivors, the government formally ended mediation. The move stunned the families and gun control advocates who have repeatedly urged the Biden administration to settle the case. They say the appeal risks the appearance of “hypocrisy” by trying to avoid accountability for the government’s mistakes even as Biden has urged tougher gun restrictions.

Feinberg declined to comment, citing a confidentiality agreement. Dena Iverson, a Justice Department spokeswoman, confirmed formal settlement talks had ended and said the department expected to file its brief outlining the reasons for its appeal by Monday with the U.S. Court of Appeals for the 5th Circuit, which will hear the case.

“This case rises from a tragedy of unspeakable proportions,” Iverson said in a statement. “The United States and the plaintiffs have engaged in a months-long effort to resolve this case regarding the United States’ liability through mediation. Although formal mediation has now ended, we remain open to resolving the plaintiff’s claims through settlement and will continue our efforts to do so.”

But gun control groups and others close to the case have accused the Justice Department of “retraumatizing” the Sutherland Springs families by proceeding with the appeal, and have questioned why the department was willing to settle the other mass shooting cases.

“There is a difference between being ‘open to resolution’ and doing what is fair and just. The plaintiffs have offered to settle this case below the court-ordered judgment,” Jamal Alsaffar, the lead attorney representing the Sutherland Springs families, said in a statement. “Seven members of this community have passed away waiting for justice. The government’s plan seems to continue delaying until others die or give up. But these families will not give up.”

Dozens of victims sued the U.S. Air Force in 2018 after the branch said it did not report gunman Devin Kelley’s history of violence, including a 2012 conviction for domestic assault, to the FBI. That conviction, which led to Kelley’s dismissal from the Air Force, should have prevented the former airman from being able to buy the guns he used in the attack.

U.S. District Judge Xavier Rodriguez later found that the Air Force was 60 percent liable for the shooting, pointing to other details uncovered in the case, including that Air Force officials were aware Kelley had previously researched and threatened a mass shooting and had a history of severe mental health issues that led officials to declare him to be “dangerous” and “a threat.”

According to testimony and evidence in the case, Air Force officials were so alarmed by Kelley’s threats of violence that he was permanently barred not only from the New Mexico air base where he served, but also all bases around the country. Yet Air Force officials did not report his conviction to the FBI background check system or warn others of his potential for violence, a decision that Rodriguez condemned in a July 2021 ruling.

“The trial conclusively established that no other individual — not even Kelley’s own parents or partners — knew as much as the United States about the violence that Devin Kelley had threatened to commit and was capable of committing,” Rodriguez wrote.

In February, Rodriguez ordered the government to pay more than $230 million to 84 victims and survivors. But in June, the Justice Department gave notice that it planned to appeal that judgment, further delaying any final outcome in the case.

Attorneys for the Justice Department’s civil division, which is handling the case, have not yet disclosed their grounds for appeal. But they argued during trial that Kelley would have procured the guns used in the attack by other means even if his criminal history had been accurately reported in the background check system.

That argument has drawn concern from gun violence groups. In October, more than three-dozen prominent gun control groups including Brady, March for Our Lives and Everytown for Gun Safety sent a letter to Attorney General Merrick Garland urging the Justice Department to drop the appeal.

“The government’s apparent refusal to accept responsibility for its failure in this case actively undermines the very gun safety laws it is required to enforce,” the letter read.

Kris Brown, president of Brady, declined to comment on what reaction, if any, the groups received in response to the letter. But she said the Brady background check system remains “one of the best tools we have for stopping prohibited purchases from buying guns” and could have stopped the gunman in Sutherland Springs from buying the weapons he used in the attack.

Expanded background checks were part of a bill that gun control championed and signed into law last summer in the weeks after the deadly school shooting in Uvalde, Tex., which killed 19 students and two teachers. But Alsaffar, the attorney for the Sutherland Springs families, said the appeal was directly at odds with Biden’s stance on gun control measures.

“DOJ cannot appeal this case without undermining gun safety’s position that background checks work to prevent tragedies like this shooting,” Alsaffar said. “The plaintiffs don’t understand DOJ’s ‘win at all costs’ strategy and why they have chosen to treat the Sutherland Springs victims so differently.”

Olivia Dalton, a deputy White House press secretary, said the White House could not comment on “pending litigation.” But she said Biden’s “commitment to reducing gun violence could not be clearer.”