Does a judgment in favor of the United States on state law tort claims brought under Section 1346(b)(1) of the Federal Tort Claims Act necessarily preclude a plaintiff from seeking recourse under Bivens for a civil rights violation stemming from the same underlying factual allegations?
This case asks the Supreme Court to decide whether a judgment against the plaintiff on a Federal Tort Claims Act (“FTCA”) claim, alleging violations under state tort law, bars the plaintiff from pursuing a constitutional remedy under Bivens. Petitioner Douglas Brownback contends that the district court’s dismissal of Respondent James King’s FTCA claims on the basis of his failure to establish the elements of Section 1346(b) constitutes a final judgment on the merits of all claims pertaining to the same subject matter. Brownback argues that consistent with the purpose of the statute, Section 2676 of the FTCA bars King from pursuing his Bivens action. King counters that the judgment bar should be interpreted to incorporate the doctrine of res judicata, which precludes subsequent claims only if a court with jurisdiction has entered a judgment on the merits. King argues that since no such jurisdiction exists over the claims in this case, his Bivens action should not be barred. The outcome of this case has significant implications for plaintiffs’ access to courts and the avenues for relief plaintiffs may pursue to hold government officials accountable for state tort and constitutional violations.
Questions as Framed for the Court by the Parties
Whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1) of the Federal Tort Claims Act, on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.
On July 18, 2014, Officer Ted Allen, a detective with the Grand Rapids Police, and Agent Douglas Brownback, a special agent with the FBI, participated in a joint fugitive task force in search of a criminal suspect pursuant to an arrest warrant issued by the State of Michigan. King v. United States at 416. Allen and Brownback approached and questioned James King after deciding that King’s appearance and habits suggested there was a “good possibility” that he was the suspect in question. Id. at 417. Following an altercation with King, Allen subdued King by placing him in a chokehold. Id. After temporarily losing consciousness, King bit Allen’s arm. Id. Allen began violently beating King in front of a crowd of bystanders, some of whom began filming the incident. Id. After King visited the emergency room and was treated, police arrested him, and prosecutors subsequently brought charges against him. Id. However, a jury acquitted King of all charges. Id.
King filed a claim against Allen and Brownback (hereinafter collectively “Brownback”), alleging violation of his Fourth Amendment rights through use of excessive force and an unreasonable seizure. Id. at 418. King also filed a claim against the United States, under the Federal Tort Claims Act (“FTCA”). Id. The district court dismissed the FTCA claim for lack of subject matter jurisdiction and granted summary judgment for Brownback on the basis of qualified immunity. Id.
King appealed his claim against Brownback to the United States Court of Appeals for the Sixth Circuit, arguing that the district court’s dismissal of the FTCA claim on jurisdictional grounds did not preclude him from pursuing his Fourth Amendment claim against Brownback. See id. at 418–21. King also contended that the district court erred in granting summary judgment in favor of the officers because there remained “material facts in dispute” relating to the application of qualified immunity. Id. at 422. Brownback countered that the district court ruled on the merits when it found that Brownback had not acted with malice, a requisite element of the intentional tort. Id. at 420. Brownback argued that a finding on the merits had triggered the FTCA’s judgment bar and precluded King’s constitutional claims against him. See id. Brownback further maintained that the district court’s grant of summary judgment should be upheld because the undisputed facts demonstrated that the officers acted reasonably in thinking that King was the suspect. Id. at 423.
The Sixth Circuit held that King’s constitutional claims against Brownback were not barred by the FTCA because King had failed to establish the elements of the FTCA claim. Id. at 420. This failure precluded the district court from reaching the claim on the merits and thus did not trigger the FTCA judgment bar. Id. After noting that the FBI had managed the joint task force, the Sixth Circuit found that King could proceed with a Bivens action—rather than a § 1983 claim—because Brownback was acting pursuant to the authority of the United States, not the State of Michigan, when the alleged use of excessive force occurred. Id. at 432–33. After finding the grant of summary judgment for the officers inappropriate due to the existence of material facts in dispute relating to qualified immunity, the Sixth Circuit remanded the case so that King could proceed with his Bivens action against Brownback. Id. at 434.
THE PURPOSE AND CONTEXT BEHIND SECTION 2676’s JUDGMENT BAR
Petitioner Brownback argues that King is barred from pursuing his Bivens action, which alleges that a federal officer has acted in violation of the U.S. Constitution, because it concerns the same actors and factual assertions as the state tort claims brought under Section 1346(b) of the FTCA. Brief for Petitioners, Douglas Brownback et al. at 17. Brownback asserts that pursuant to Section 2676 of the FTCA, a judgment in an FTCA claim bars the claimant from suing based on the same subject matter the employee of the government whose actions were the basis of the claim. Id. Brownback maintains that Congress intended the judgment bar to reflect the statute’s “remedial compromise.” Id. at 18. Brownback argues that while the FTCA created an opportunity for claimants to pursue certain tort claims against the government, Section 2676 ensures that a claimant is limited to only one “bite at the money-damages apple.” Id. at 21, 31. Brownback further contends that the judgment bar is consistent with the common-law principle of claim preclusion, which protects against duplicative litigation by prohibiting a claimant from bringing subsequent suits when a previous judgment has already directly ruled on the substance of the claim. Id. at 35. Moreover, Brownback proposes that by relaxing the mutuality rule of common-law claim preclusion, Congress had intended for preclusion of any subsequent litigation against implicated federal employees after a final determination on a plaintiff’s FTCA claim. Id. at 27. Brownback contends that this interpretation is consistent with other provisions of the FTCA, which specify that the bar applies to several of the state tort claims alleged by King, such as assault and battery. Id. at 25. Brownback further asserts that the other provisions of the FTCA indicate that Section 2676’s judgment bar precludes King’s Bivens claims. Id. at 26. Specifically, Brownback argues that the existence of an express exception in Section 2679(b)(2)(A) for Bivens claims is “powerful evidence” that Congress did not intend for a similar exception to apply to Section 2676’s judgment bar because Congress did not explicitly include one. Id.
Respondent King counters that the primary purpose of the FTCA is to waive the federal government’s sovereign immunity in civil actions for tort violations, granting district courts exclusive jurisdiction over those claims instead. Brief for the Respondent, James King at 12. King argues that in enacting Section 2676, Congress intended to codify the common-law principle of res judicata, which bars a subsequent separate claim only if a court with jurisdiction issued a prior final judgment on the merits. Id. at 22–23. Specifically, King maintains that Section 2676 codified res judicata because it directly borrowed phrases like “same subject matter” and “complete bar” from the common-law principle. Id. at 25. King further asserts that the fact that Section 2676’s elements directly mirror those of res judicata is further evidence that Congress intended the judgment bar to operate like res judicata. Id. at 18. In support of this argument, King points to the Court’s decisions in Simmons v. Himmelreich and Will v. Hallock, both of which concluded that the judgment bar operates like res judicata, in that it is only when a court with jurisdiction under the FTCA issues a ruling on the merits that federal employees are protected from repeat litigation. Id. at 22–23. King therefore contends that, pursuant to res judicata, when a district court lacks subject matter jurisdiction over an FTCA claim, and thus did not decide the claim on the merits, a dismissal of the claim shall not bar a plaintiff’s Bivens claim. Id. at 12, 26.
APPLICABILITY OF THE JUDGMENT BAR
Brownback contends that Section 2676’s judgment bar applies because the district court’s dismissal of King’s FTCA claim due to his failure to establish one of the elements of Section 1346(b)(1) constituted a judgment on the merits. Brief for Petitioner at 29–32. Brownback argues that under the FTCA, “where immunity and the cause of action overlap,” the district court must necessarily consider the merits of the case while determining its own jurisdiction. Id. at 32. Brownback proposes that King granted subject matter jurisdiction onto the district court by alleging the elements under Section 1346(b)(1) because his action necessarily required the court to resolve the merits of his claim. Id. Brownback asserts that the district court did not dismiss King’s case on jurisdictional grounds, but rather dismissed his FTCA claims for failure to provide proof the United States was liable under the law. Id. at 33. Therefore, Brownback maintains, the district court did not find that King’s claims completely failed to arise under the FTCA, but rather that the United States was not substantively liable under the FTCA. Id. at 31–32. Given that the district court decided King’s FTCA on the merits, and that King’s Bivens claims arise out of the “same subject matter” as the torts he alleged under the FTCA, Brownback argues that Section 2676 precludes him from pursuing his Bivens claims. Id. at 29–34.
King counters that Section 2676’s judgment bar does not apply to his Bivens claims because he failed to satisfy the elements under Section 1346(b)(1), which is a necessary precondition for a district court to have subject matter jurisdiction under the FTCA. Brief for the Respondent at 35. King argues that absent a showing that all of the elements under Section 1346(b)(1) are established, no action under the FTCA exists. Id. King further contends that Section 2676’s judgment bar also does not apply to claims brought together in the same lawsuit. Id. at 26. Specifically, King concludes that since res judicata only bars a claim made in a separate lawsuit, Section 2676’s judgment bar does not apply to multiple claims that were made in the same lawsuit. Id. at 26–28. Moreover, King asserts, since the language of the FTCA suggests that subsequent litigation is barred only by “the” final judgment—that is, one addressing any and all claims brought together in the action—Section 2676’s judgment bar does not apply to claims brought within the same lawsuit. Id. King emphasizes that whether Section 2676 bars subsequent Bivens claims in a separate action has no bearing on this case; the district court did not enter judgment as to all the claims in the action under Section 1346(b), but rather made a judgment regarding only whether King’s FTCA claim established the elements necessary to grant the court jurisdiction Id. at 26–34.
ACCESS TO THE COURTS
Brownback argues that barring a plaintiff’s Bivens action after a district court has dismissed claims brought under the FTCA conforms to the FTCA’s objective of opening access to the courts by offering plaintiffs the ability to sue the United States without allowing for repetitious actions against individual federal employees. Brief for Petitioner, Douglas Brownback et al. at 18–19. Brownback claims that the FTCA’s original judgment bar balanced the newly-created cause of action against the United States with the preclusion of related claims against the government employees. Id. Brownback asserts that Congress offered plaintiffs a choice in pursuing remedies against the United States, or against individual federal employees, or both. Id. at 45. Brownback contends that establishing this choice, along with its ramifications of barring actions against individual federal employees, follows directly from the judgment bar’s function of barring claims against federal employees after an FTCA judgment in favor of the United States. Id. Brownback further maintains that Congress sought to extend the judgment bar to intentional torts by federal law enforcement officers following Bivens through the 1974 amendment to Section 2680(h). Id. at 19. Brownback posits that this amendment’s purpose was to extend the same choice to plaintiffs considering Bivens and FTCA claims while continuing to fulfill the FTCA’s goal of directing liability towards the United States, rather than individual federal employees. Reply Brief for Petitioner at 18.
Members of Congress, in support of King, counter that extending the FTCA’s judgment bar to a plaintiff’s Bivens claims after dismissal of a FTCA claim for jurisdictional reasons would frustrate the FTCA’s purpose by blocking the plaintiff’s access to the courts. Brief of Amici Curiae Members of Congress, in Support of Respondents at 5–6. Similarly, the American Civil Liberties Union (“ACLU”) argues that barring a meritorious Bivens claim following the dismissal of a related FTCA claim for jurisdictional reasons undermines the FTCA’s goal of holding government officials accountable. Brief of Amici Curiae American Civil Liberties Union, et al. (“ACLU”), in Support of Respondents at 19–20. In further support, the Cato Institute and the National Police Accountability Project (collectively “Cato”) contend that Congress intended to provide plaintiffs the opportunity to pursue FTCA and Bivens claims simultaneously. Brief of Amici Curiae Cato Institute and National Police Accountability Project (“Cato”), in Support of Respondents at 5–6. Cato asserts that extending the FTCA’s judgment bar, as proposed by Brownback, would foreclose this opportunity by destroying valid Bivens claims when a plaintiff’s FTCA claim is decided for the United States before resolution of the plaintiff’s Bivens claim. Id. at 7. Cato claims that under this rule, due to plaintiffs’ inability to guarantee simultaneous resolution of both claims, most plaintiffs would be obligated to choose to pursue a single claim, thereby forgoing the other claim and losing access to the complementary remedies intended by Congress. Id. at 12, 15.
Brownback asserts that applying the judgment bar to King’s Bivens claim after a judgment in favor of the United States on the FTCA action is proper because King was afforded an adequate opportunity to establish the elements of his FTCA claim. Brief for Petitioner at 27. Brownback contends that allowing the Bivens action to proceed would weaken the judgment bar and strain resources by enabling a future plaintiff to pursue a Bivens claim and then relitigate the same facts in a separate FTCA action if the Bivens claim fails. Id. at 27–28. Brownback contends that applying the judgment bar in this case aligns with Congress’s goal of avoiding the burden of duplicative litigation and lessening unnecessary burdens on federal resources. Id. at 27. Brownback further claims that barring Bivens actions after judgments in favor of the United States would improve federal employee morale by achieving a permanent resolution, thereby preventing continued lawsuits against individual employees. Id.
Members of Congress argue that applying the judgment bar in this case would actually increase duplicative litigation, since plaintiffs could avoid the risk that a ruling on their FTCA claims might bar their Bivens claims by simply litigating their Bivens claim first before proceeding with their FTCA claims. Brief of Amici Curiae Members of Congress at 6. Law Enforcement Action Partnership (“Law Enforcement”), in support of King, asserts that more plaintiffs pursuing separate Bivens claims before their FTCA claims would increase government expenses, since the government often elects to pay the litigation costs of federal employees facing Bivens actions. Brief of Amicus Curiae The Law Enforcement Action Partnership (“Law Enforcement”), in Support of Respondents at 15. Law Enforcement argues that the proposed extension of the judgment bar would also harm federal employees, who could be forced to testify in multiple proceedings and who may continue to fear the possibility of duplicative litigation for months or years. Id.
- Jordan S. Rubin, Law Enforcement Accountability at Stake in Coming SCOTUS Cases, Bloomberg Law (Oct. 6, 2020).
- Robert Barnes, Supreme Court to Hear Case of Michigan Man Beaten by Plainclothes Police, Washington Post (Mar. 30, 2020).