Does the judgment bar of the Federal Tort Claims Act, 28 U.S.C. 2676, bar a subsequent action against federal employees when the original claim against the United States, brought under Section 1346(b), was dismissed pursuant to the FTCA’s discretionary-function exception in Section 2680?
Walter Himmelreich brought a Federal Tort Claims Act (“FTCA”) suit against the United States during his federal prison sentence in 2010. The suit was subsequently dismissed under the FTCA’s discretionary-function exception. The exception states that courts do not have jurisdiction over claims “based upon the exercise or performance . . . [of] a discretionary function or duty on the part of a federal agency or [a government] employee.” Himmelreich later brought suit against prison officials, alleging various constitutional violations. The U.S. Court of Appeals for the Sixth Circuit overturned the district court’s decision to dismiss that complaint on the basis of the FTCA's judgment bar, which the district court determined barred plaintiffs from bringing claims against government employees that had previously received judgment. The Supreme Court granted certiorari in this case to determine whether a dismissal under the FTCA’s discretionary-function exception in Section 2680 is a “judgment” that would bar future claims under the FTCA’s judgment bar. Simmons argues that a dismissal on the grounds of the discretionary-function exception constitutes a judgment, and that the judgment bar should apply. Himmelreich argues that a dismissal on the grounds of the discretionary-function exception has no claim-preclusive effect and thus fails to trigger the judgment bar. The decision in this case will clarify the proper scope of the FTCA's judgment bar and may impact government employees’ exposure to liability.
Questions as Framed for the Court by the Parties
Does a final judgment in an action brought under Section 1346(b) dismissing the claim on the ground that relief is precluded by one of the FTCA’s exceptions to liability, 28 U.S.C. 2680, bar a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim?
Walter Himmelreich is a federal prisoner who filed a complaint under the Federal Tort Claims Act ("FTCA") against the United States in 2010 and a second complaint alleging various causes of action against numerous defendants, including the petitioners, who were Himmelreich’s prison guards. See Himmelreich v. Federal Bureau of Prisons, 766 F.3d 576, 577 (6th Cir. 2014); Brief of Petitioner, Walter J. Himmelreich at 8. The second claim alleged a violation of the First Amendment, based on a purportedly retaliatory detention in 2009 following Himmelreich’s filing of the FTCA claim; and a violation of the Eighth Amendment after prison officials allegedly failed to protect Himmelreich following his assault by another inmate. See Himmelreich, 766 F.3d at 557. The district court dismissed the FTCA complaint under the FTCA’s discretionary-function exception, stating that prison guards must exercise their judgment when making decisions about prisoner safety. See Brief for Petitioner at 8. The district court dismissed the entirety of the second complaint for failure to state a claim, but on appeal, the U.S. Court of Appeals for the Sixth Circuit vacated and remanded Himmelreich’s First Amendment and Eighth Amendment claims for further proceedings. See Himmelreich, 766 F.3d at 557. On remand, the district court granted a motion for summary judgment against Himmelreich as to both claims, and the Court of Appeals again heard the subsequent appeal. See id.
Noting the Sixth Circuit’s exception to the Prison Litigation Reform Act's (“PLRA”) “proper exhaustion” standard, the Court of Appeals vacated the district court’s grant of summary judgment against Himmelreich’s First Amendment claim. See Himmelreich, 766 F.3d at 577–78. The PLRA demands “proper exhaustion” of the prison grievance process by a prisoner before filing suit. See id. at 577. Although Himmelreich did not fully exhaust these remedial options, the court nevertheless sustained his claim. See id. at 577-78. The court excused Himmelreich’s lack of compliance under an exception to the proper exhaustion rule, whereby a prisoner may proceed in litigation where a prison official’s improper conduct has made any administrative remedial options unavailable to the prisoner. See id. Finding Himmelreich’s specific allegations of intimidation and retaliation by a prison official sufficient to generate a genuine issue of material fact, the court vacated the grant of summary judgment and remanded to the district court for further proceedings. See id. at 578, 580.
The Court of Appeals also vacated the grant of summary judgment as to the Eighth Amendment claim, holding that Himmelreich’s FTCA suit did not preclude his current claim from proceeding. See Himmelreich, 766 F.3d at 579–80. A provision of the FTCA, known as the judgment bar, bars subsequent litigation of the same subject matter where the plaintiff has received a prior judgment on the original FTCA claim. See id. at 578. The district court had held that the judgment bar precluded the Eighth Amendment claim because the two suits involved the same incident and because the prior FTCA claim was dismissed for lack of subject-matter jurisdiction. See id. The Court of Appeals disagreed, holding that the dismissal of the FTCA claim did not bar the current action because a dismissal for lack of subject-matter jurisdiction could not serve as a final judgment that would implicate the judgment bar's preclusive effects. See id. at 579–80.
The Court of Appeals denied a request for a rehearing en banc. The Supreme Court subsequently granted a petition for a writ of certiorari on November 6, 2015. See Brief for Petitioners, Jermaine Simmons et al. at 1.
In this case, the Supreme Court will determine whether the FTCA’s judgment bar, 28 U.S.C. 2676, bars a subsequent action when the original claim brought under Section 1346(b) against the United States was dismissed pursuant to the FTCA’s discretionary-function exception to liability, Section 2680. See Petition for a Writ of Certiorari, Jermaine Simmons and Brian Butts at i. Simmons asserts that the judgment bar applies in this case because a Section 2680 dismissal constitutes a judgment, and the judgment constitutes “an action under Section 1346(b).” See Brief for Petitioners, Jermaine Simmons, et al. at 18, 44. Himmelreich contends that the judgment bar does not apply in this case because a Section 2680 dismissal has no claim-preclusive effect, and thus, is not a judgment sufficient to trigger the judgment bar. See Brief for Respondent, Himmelreich at 31. Himmelreich also argues that an action dismissed for lack of jurisdiction does not constitute a judgment in an “action under Section 1346(b).” See Id. at 30.
PURPOSE AND APPLICATION OF THE JUDGMENT BAR
Simmons contends that Congress enacted the FTCA to relieve the government of the burden of having to constantly defend the employees of various agencies in lawsuits by allowing plaintiffs to sue the United States rather than the individual federal employee. See Brief for Petitioners at 23–24. Simmons argues that the judgment bar prevents plaintiffs from bringing another suit against the individual employee once the FTCA action has gone to judgment because this would impose a substantial burden on the government to defend the same suit again. See Id. at 24, 27. Simmons maintains that by deeming the United States not liable for alleged torts and by barring a subsequent action against federal employees, the judgment bar saves trouble for the government and federal employees by avoiding “duplicative litigation.” See Id. at 5–6, 25.
Himmelreich acknowledges the purpose behind the judgment bar, but counters that the FTCA explicitly states that its provisions “shall not apply” to the claims in Section 2680. See Brief for Respondent at 11, 13. Himmelreich argues, therefore, that a claim falling within one of Section 2680’s exceptions, such as the discretionary-function exception, does not trigger the judgment bar. See Id. at 13. Himmelreich contends that because Section 2680 claims are carved out of the FTCA entirely, leaving plaintiffs unable to assert their claims against the government, plaintiffs should be able to pursue alternative forms of redress, such as actions against federal employees. See Id. at 11, 14. Himmelreich maintains that Congress’s concerns regarding “duplicative litigation” are not implicated in this case, which includes “no duplicative causes of action” because no remedy exists against the government under the FTCA. See Id. at 15–16.
MEANING OF “JUDGMENT”
Simmons argues that in the absence of any indication to the contrary, words will be given “their ordinary, contemporary, common meaning.” See Brief for Petitioners at 16. Simmons points to the district court’s dismissal of Himmelreich’s claims in a document entitled “JUDGMENT ENTRY,” which Simmons asserts is an entry of a judgment within the plain wording of the judgment bar. See Id. at 16–17. Simmons contends that the judgment constituted “an order from which an appeal lies,” thus adhering to the definition of “judgment” in the Federal Rules of Civil Procedure, which the FTCA expressly incorporates. See Id. at 17, 21. Simmons maintains that a judgment refers to “any final adjudication of a case by a court,” including a dismissal of an FTCA case for lack of jurisdiction pursuant to Section 2680. See Id. at 18. Simmons argues that no standard definitions of “judgment” in both legal and non-legal dictionaries incorporate res judicata principles, and that there is no requirement that a judgment must have preclusive effect or be “on the merits.” See Id. at 20, 29. Simmons contends that even if res judicata were incorporated, under the doctrine of claim preclusion, a judgment dismissing an FTCA case would be considered “on the merits” because the judgment “passes directly on the substance of the plaintiff’s FTCA claim” by holding the United States not substantively liable for an alleged tort. See Id. at 33–34, 36. Furthermore, Simmons asserts that Congress would not have used the same term of “judgment” in other FTCA provisions if it did not intend to give those terms the same meaning. See Id. at 22.
Himmelreich claims that a Section 2680 dismissal of an FTCA case is jurisdictional in nature and lacks any claim-preclusive effect under the doctrine of res judicata. See Brief for Respondent at 31. Himmelreich asserts that the judgment bar mirrors claim preclusion and res judicata because both function in the same way and are motivated by a desire to avoid “duplicative litigation.” See Id. at 40. Himmelreich contends that a Section 2680 dismissal is “a ruling that a claim cannot be adjudicated,” so it is not a “judgment” that triggers the judgment bar. See Id. Himmelreich argues that to render a “judgment,” an issuing court must possess jurisdiction over the matters adjudicated. See Id. at 37. Himmelreich asserts that a judgment “on the merits” does not necessarily entitle the judgment to claim-preclusive effect. See Id. at 47. Even if it did, Himmelreich contends, a Section 2680 dismissal is not “on the merits” because it does not “pass upon the substantive merits of the claim” and does not say anything about the underlying substantive tort claim. See Id. at 48. Finally, Himmelreich argues that judgments resting on “personal defenses,” defenses personal to the government with no application to suits against employees, do not trigger the judgment bar. See Id. at 51–52.
MEANING OF “ACTION UNDER SECTION 1346(b)”
Simmons asserts that “the judgment bar applies to any judgment in an action under Section 1346(b).” See Brief for Petitioners at 44. Simmons argues that Himmelreich no doubt filed his original suit “under Section 1346(b)” because that is the only basis for a district court’s jurisdiction over an FTCA action. See Id. Simmons compares Section 2680’s phrase “action under Section 1346(b)” with Section 2679(a)’s phrase “cognizable under Section 1346(b),” which he argues are “virtually indistinguishable.” See Id. at 47. Simmons contends that similar to the phrase “cognizable under Section 1346(b),” the phrase “action under Section 1346(b)” encompasses all tort claims within the express terms of Section 1346(b), even if another FTCA provision ultimately denies relief. See Id. at 45. Thus, Simmons argues, the judgment bar applies to FTCA actions dismissed pursuant to Section 2680. See Id. at 44.
Himmelreich maintains that a Section 2680 dismissal is jurisdictional and hence does not constitute a judgment in an “action under Section 1346(b).” See Brief for Respondent at 30. Himmelreich argues that if a court has no power to adjudicate a claim because the claim falls outside of the court’s jurisdiction, then “the action was not properly brought under the FTCA.” See Id. at 33. Himmelreich asserts that dismissal of this improperly filed action should not preclude a new cause of action against a federal employee. See Id. Himmelreich contends that, when deciding whether a claim constitutes "an action under Section 1346(b)," a court must determine whether the claim actually implicated the jurisdictional provision, not whether the claim simply attempted to allege a cause of action under the statute. See Id. at 35. Himmelreich criticizes Simmons’s equating the phrase “action under Section 1346(b)” with the phrase “cognizable under Section 1346(b)” because “action under” considers whether a claim actually implicates the jurisdictional provision, whereas “cognizable under” only alleges plausible elements. See Id. at 35–36.
The Court’s decision in this case will illuminate the proper scope of the FTCA’s judgment bar and could expand liability for government employees.
SCOPE OF FTCA’S JUDGMENT BAR
Simmons argues that the Court should interpret the FTCA judgment bar broadly to protect employees from litigating disputes previously settled by their government employer. See Brief for Petitioners at 24–25. According to Simmons, government employees should not face the risks of additional liability after their employer has resolved the original underlying dispute. See id. Simmons contends that such duplicative litigation would not only upset notions of judicial efficiency but also subject government employees to additional fees and damages beyond that which their employer originally bargained for. See id. at 25–27.
Public Citizen, Inc. and the American Civil Liberties Union (collectively, “ACLU”), in support of Himmelreich, argue that the Court should interpret the provision establishing the FTCA’s judgment bar narrowly so as to allow future complaints challenging federal employee conduct outside of the FTCA context, such as Himmelreich’s current complaint. See Brief of Amici Curiae Public Citizen, Inc. and the American Civil Liberties Union ("ACLU"), in Support of Respondent at 6. Furthermore, the ACLU argues that the FTCA’s clear intent suggests extending res judicata preclusive effects to FTCA judgments made only on the merits and not to dismissals for lack of jurisdiction. See id. at 10–11. Furthermore, the ACLU contends that a broad interpretation of the provision would essentially curtail plaintiff remedies and effectively shield federal employees from suit. See id. at 15–17.
This case will determine whether the FTCA’s judgment bar applies to a subsequent action against a federal employee where the original claim was dismissed under the FTCA's discretionary-function exception of Section 2680. See Petition for a Writ of Certiorari, Jermaine Simmons and Brian Butts at i. Simmons argues that the FTCA judgment bar should apply because a dismissal under the FTCA discretionary-function exception suffices as a judgment, thereby precluding similar claims in the future. See Brief for Petitioners, Jermaine Simmons et al. at 18. Himmelreich contends that the judgment bar should not apply because a dismissal under the FTCA discretionary-function exception does not carry the claim-preclusive effects associated with traditional res judicata doctrine. See Brief for Respondent, Walter J. Himmelreich at 31. The Court’s decision in this case will clarify the proper scope of the FTCA judgment bar and may impact government employees’ exposure to liability.
- Prisoner's Failure to Exhaust Administrative Remedies in Pursuit of FTCA Excused by Alleged Threats of Prison Officials, O’Brien Whitt Publishing (Sept. 14, 2015).
- Derek Gilna, Sixth Circuit Reverses Dismissal of Prisoner's Bivens Suit Against BOP Officials, Prison Legal News (Oct. 26, 2015).