Brownback v. King

No. 19-546 - Argued November 9, 2020
At Issue

Does the judgment bar provision of the Federal Tort Claims Act (FTCA) prevent a plaintiff, whose FTCA claim against the government failed for lack of subject matter jurisdiction, from filing a Bivens action against the same defendants and arising from the same set of facts and injuries?

Advocates
  • Michael R. Huston, Esq., on behalf of Douglas Brownback, et al., Petitioners
  • Patrick M. Jaicomo, Esq., on behalf of James King, Respondent
Background and Case Commentary

The underlying facts of Brownback v. King are straightforward.  An FBI joint task force of federal and city law enforcement officers believed that King, whom they saw walking down the street one afternoon, was the suspect they were seeking.  The officers, dressed in plainclothes, stopped King, questioned him, and removed, among other things, his wallet from his pocket.  King, apparently thinking that he was being mugged, attempted to run away.  An altercation between the officers and King ensued, resulting in his being taken to the emergency room for medical treatment.  King was prosecuted for resisting arrest and acquitted.  Subsequently, King sued both the United States and the officers in federal district court, asserting claims under the Fourth Amendment for an unreasonable search and excessive force.

The United States and its officers prevailed on pretrial motions in the district court, albeit on different grounds.  The district court held that it did not have subject matter jurisdiction over the claim against the United States under the Federal Tort Claims Act (FTCA) and that the individual defendants were entitled to summary judgment on the grounds of qualified immunity.  King appealed this judgment with respect to two of the officers but did not challenge the judgment in favor of the United States and another defendant.

The United States Court of Appeals for the Sixth Circuit reversed the district court.  It considered whether, following the district court’s ruling, the judgment bar of the FTCA precluded the plaintiff’s claims against the officers.  The FTCA judgment bar states, “The judgment in an action under section 1346(b) of this title [against the United States] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.”  Defendants argued, on appeal, that the district court’s dismissal of the plaintiff’s claims against the United States activated the judgment bar. The Sixth Circuit held the claims were not barred, reasoning that the “FTCA does not bar Plaintiff from maintaining his claims . . . because the district court lacked subject matter jurisdiction over Plaintiff’s FTCA claim.”

The officers appealed the Sixth Circuit’s judgment to the Supreme Court, which granted certiorari.  The Court will now determine whether a final judgment, in favor of the United States, in an action brought under Section 1346(b)(1) of the FTCA, 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 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.

We have focused on two exchanges.  In the first, Justice Clarence Thomas asked Mr. Huston whether a judgment that is appealable still has preclusive effect.  Mr. Huston answered the question correctly, saying “Yes,” because “the definition of judgment” in the federal statute, 28 U.S.C. section 2676 (the judgment bar), “is the same as the definition of the word judgment in the Federal Rules of Civil Procedure.”  We have elaborated on Mr. Huston’s answer to suggest that he could have incorporated the procedural history of the case to support the government’s argument for reversal.

In the second, Justice Breyer clarified with Mr. Jaicomo that under his theory of the case, a plaintiff could sue the United States and individual officers in the same case, prevail against the United States and obtain damages, and also prevail against the individual officers and obtain additional – not duplicative – damages.  Consistent with his position, Mr. Jaicomo agreed that this was possible and in fact had been Congress’s intent under the FTCA and related legal authorities.  We have elaborated on his answer to explain why, on balance, this would be better than the scenario that would result from the government’s broad reading of the judgment bar.

Brownback v. King on Oyez: https://www.oyez.org/cases/2020/19-546

Key Questions from Oral Argument

Justice Thomas to Petitioner (7:58): On the point of what judgment, what sort of judgment is included, would a . . . judgment that is still appealable also have the same preclusive effect?

Rodger Citron and Laura Dooley: Yes, your Honor. It is hornbook law, applicable in a case involving the FTCA judgment bar, that a judgment on appeal has preclusive effect unless and until it is vacated.

Here, the district court entered judgment against the plaintiff, and in favor of the United States, on the grounds that the plaintiff had not established any violation of state law. The plaintiffs did not appeal the district court’s entry of that judgment. Accordingly, that judgment remains valid and now bars plaintiffs’ claims against the individual defendant officers.

Justice Breyer to Respondent (39:41): If you can get – Claim 1, we sue the government, give us some money. Claim 2, employee, you’re involved in this lawsuit too, give us some money. . . . Now that’s what I’m worried that your argument would lead to. And from what you said so far, you say that’s just what it would lead to, and that’s a good thing.

[In a subsequent question, Justice Breyer followed up:] . . . [Y]ou’re saying Congress did not want to stop all recoveries against the employee, right?

Rodger Citron and Laura Dooley: Yes, your Honor.

In addition to the authorities cited in our prior answer, we would add that you have to balance the possibility of that outcome against the unreasonable and unfair sweep of preclusion urged by the government. This case demonstrates that unfairness: the plaintiff here made the rational and efficient decision to sue both the United States and individual employees in the same case – a litigation structure that the federal joinder rules facilitate and encourage. The district court’s ruling against the plaintiff on his claim against one party, the United States, should not simultaneously preclude the plaintiff from proceeding against the individual defendant officers. On balance, the unfairness of that result outweighs the possibility of plaintiffs recovering from both the federal government and its employees.

Furthermore, if the goal of the preclusion bar is to reduce litigation, the government’s argument creates perverse incentives in two different ways. First, it encourages a plaintiff to pursue Bivens claims before raising any FTCA claim against the United States, so as to avoid the judgment bar. This would lead to multiple lawsuits rather than one. Second, it incentivizes plaintiffs to pursue non-promising appeals of dismissed FTCA claims that are joined with Bivens claims for the sole purpose of keeping the lawsuit alive.

Finally, your Honor, given the rulings in this case thus far, there is no chance of the plaintiff recovering against both the United States and its employees because the United States already has prevailed on the claim against it. Though preclusion doctrine exists to prevent multiple bites at the apple of litigation, it shouldn’t divest litigants of full appellate consideration of claims in the first place.

Contributors

Laura Dooley
Rodger Citron