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No. 08-1595

 

In the Supreme Court of the United States

STEVEN MANNING, PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
BARBARA L. HERWIG
TEAL LUTHY MILLER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTION PRESENTED

The Federal Tort Claims Act (FTCA) provides that the judgment in an action under the jurisdictional provi sion of the FTCA, 28 U.S.C. 1346(b), "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." 28 U.S.C. 2676. The question presented is whe ther, under Section 2676, a judgment on FTCA claims bars a judgment on Bivens claims when the FTCA claims and the Bivens claims were brought together in the same lawsuit.

In the Supreme Court of the United States

No. 08-1595

STEVEN MANNING, PETITIONER

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-18a) is reported at 546 F.3d 430. The opinion of the district court (Pet. App. 19a-37a) is unreported but is available at 2006 WL 3825043.

JURISDICTION

The judgment of the court of appeals was entered on October 6, 2008. A petition for rehearing was denied on January 26, 2009 (Pet. App. 38a-39a). On April 20, 2009, Justice Stevens extended the time within which to file a petition for a writ of certiorari to and including June 25, 2009, and the petition was filed on June 24, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., provides a limited waiver of sover eign immunity for claims against the federal government based on "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. 1346(b)(1); Dalehite v. United States, 346 U.S. 15, 17 (1953), par tially overruled on other grounds by Rayonier Inc. v. United States, 352 U.S. 315 (1957). The FTCA grew out of "a feeling that the Government should assume the obligation to pay damages for the misfeasance of em ployees in carrying out its work." Dalehite, 346 U.S. at 24. At the same time, the FTCA does "not assure in jured persons damages for all injuries caused by such employees," id. at 17, as it places a variety of limits on the United States' waiver of its immunity as well as on the scope of the United States' substantive liability un der the Act. Id. at 17-18.

Among the FTCA's limits is the judgment bar con tained in 28 U.S.C. 2676, which provides that an FTCA judgment cuts off the plaintiff's ability to pursue other avenues of relief against government employees based on the same conduct or transaction as the FTCA claim: "[t]he judgment in an action under section 1346(b) of this title 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." 28 U.S.C. 2676. Thus, although the FTCA provides plaintiffs with the opportu nity to sue a financially responsible defendant, subject to the limits and exceptions Congress placed on the gov ernment's liability, the judgment bar ensures that the government is protected from having to expend its re sources defending multiple actions or multiple theories of recovery arising out of the same incident.

2. Following extensive investigations by the Federal Bureau of Investigation (FBI), local police, and other authorities, petitioner was convicted of kidnapping in Missouri and murder in Illinois. Pet. App. 21a. These convictions were ultimately overturned: the Illinois Su preme Court reversed petitioner's murder conviction, and the Eighth Circuit granted habeas relief on his kid napping conviction. Id. at 2a. Authorities elected not to retry petitioner on either charge. Ibid.

Petitioner subsequently filed a constitutional tort claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against two FBI agents, Robert Buchan and Gary Mil ler, seeking damages for his allegedly wrongful prosecu tion and imprisonment. Pet. App. 3a. In the same law suit, petitioner brought an FTCA claim against the Uni ted States, for the common-law torts of malicious prose cution and intentional infliction of emotional distress. Ibid.

In a pretrial order, the district court noted that Sec tion 2676 could bar petitioner's Bivens claims if peti tioner received a judgment on the FTCA claims. See Docket entry No. 157 (11/9/04 order setting petitioner's claims for trial). Beginning in December 2004, petition er's claims were tried in a single, combined trial, with the Bivens claims tried to a jury and the FTCA claims tried to the district court. Pet. App. 3a, 19a. The jury found in favor of petitioner on his Bivens claim and awarded him $6.5 million in damages. Id. at 3a. While the district court had the FTCA claims under advise ment, petitioner moved the court to enter judgment on the jury's verdict relating to the Bivens claims. Id. at 4a. In his motion, petitioner acknowledged the risk that under Section 2676, a subsequent judgment on his FTCA claim might nullify the Bivens judgment. Id. at 4a, 22a-23a.

In September 2006, the district court granted judg ment to the United States on petitioner's FTCA claims. Pet. App. 4a. FBI agents Buchan and Miller moved to vacate the jury verdict on the Bivens claims pursuant to Federal Rule of Civil Procedure 59(e), arguing that the FTCA's judgment bar compelled vacatur of the Bivens judgment against them. Pet. App 4a. The district court granted the motion, noting that there "is no question that section 2676 applies in this case." Id. at 26a. The court explained that the plain meaning of Section 2676 established that the entry of judgment on petitioner's FTCA claim created a "complete bar to any action" based on the same subject matter, including petitioner's Bivens claims. Ibid. And because "it is firmly estab lished that section 2676 bars a non-FTCA claim that i[s] determined simultaneously with an FTCA claim," the court reasoned, "it makes no sense to have the effect of section 2676 turn on how promptly the trial judge de cides the FTCA claim when FTCA and non-FTCA claims are tried together." Id. at 34a. The district court therefore vacated the judgment on the Bivens claims. Id. at 37a.

3. The court of appeals affirmed. Pet. App. 1a-18a. Citing the consensus among the courts of appeals, the court held that Section 2676 is "plain and unambiguous" that an FTCA judgment serves as a bar to other claims brought within the same action, because the provision applies to "any action," and "a claim is necessarily part of an action." Id. at 7a; id. at 8a-9a. The court found that Congress's "choice of broad language" in the judg ment bar-"'a complete bar to any action'-makes clear that the bar was intended to apply to such claims." Id. at 8a.

The court also rejected petitioner's contention that its interpretation of Section 2676 effectively rendered the Bivens cause of action a nullity, noting that both causes of action remained open to plaintiffs, and that Section 2676 simply provided that a plaintiff could not pursue both claims to judgment. Pet. App. 10a. A plain tiff who brought both claims in one action and prevailed on the Bivens claim could, the court reasoned, volun tarily dismiss the FTCA claim in order to avoid the judgment bar. Ibid.

Having established that Section 2676 bars claims brought in the same suit, the court next rejected peti tioner's argument that the judgment bar does not apply when the Bivens judgment is entered prior to the FTCA judgment in the same action. Pet. App. 14a-16a. The statutory language does not contain any temporal limita tion, the court held, and permitting the operation of the judgment bar to turn on whether the Bivens or FTCA judgment is entered first would be arbitrary. Ibid. The intent of the judgment bar-to "prevent multiple law suits as well as multiple recoveries"-is best served, the court concluded, by consistently applying the judgment bar regardless of whether the Bivens or FTCA judg ment is entered first. Id. at 15a (citing Estate of Trent adue ex rel. Aguilar v. United States, 397 F.3d 840, 859 (10th Cir. 2005)).

ARGUMENT

Petitioner renews (Pet. 7-22) his contention that Sec tion 2676 does not bar "a Bivens claim brought in the same suit" as an FTCA claim. Pet. 7. The court of ap peals correctly held that the plain language of Section 2676 encompasses Bivens claims brought in the same suit. Although petitioner alleges a circuit conflict on the question, the other courts of appeals to consider the is sue have overwhelmingly agreed with the Seventh Cir cuit. Only the Ninth Circuit has deviated from that con sensus, and only in a limited respect. That court has held that although Section 2676 bars Bivens claims brought in the same action when the plaintiff prevails on her FTCA claims, Section 2676 does not bar claims when the FTCA judgment is adverse to the plaintiff. That limited disagreement does not merit this Court's review. Moreover, subsequent decisions of the Ninth Circuit suggest that that court may reconsider its position; therefore, certiorari is not warranted at this time.

1. The court of appeals correctly concluded that the plain text of Section 2676 provides that an FTCA judg ment is a "complete bar to any action," 28 U.S.C. 2676 (emphasis added), including claims filed concomitantly with the FTCA claim itself. See, e.g., Serra v. Pichardo, 786 F.2d 237, 239-240 (6th Cir.), cert. denied, 479 U.S. 826 (1986). Although petitioner urges (Pet. 19-21) that Section 2676 cannot bar Bivens claims brought in the same action as FTCA claims because a "claim" is dis tinct from an "action," the court of appeals correctly explained that the term "action" incorporates all ele ments of a civil suit, including the claims within that suit. Pet. App. 8a. As a result, "[b]y acting as a bar to any action, § 2676 bars the claims within that ac tion." Ibid. Under petitioner's reading, Section 2676 "would bar 'any action,' but would not bar pieces of that action, i.e., certain individual claims," a result that would be "inconsistent with the text of the statute." Unus v. Kane, 565 F.3d 103, 122 (4th Cir.) ("Because a claim is a lesser part of an action," "all related claims [within the same action] must come within the ambit of § 2676."), petition for cert. pending, No. 09-294 (filed Sept. 3, 2009).

Congress's "choice of broad language" reflects its intent to go beyond "merely bar[ring] a plaintiff from bringing a subsequent identical action on the same claim." Serra, 786 F.2d at 239; see Pet App. 8a. Section 2676 is designed to protect against the drain on govern ment resources that would result from multiple recover ies based on the same conduct, Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 859 (10th Cir. 2005), and that concern is equally operative when the multiple recoveries arise from parallel claims brought within a single lawsuit. Congress also intended to protect the government against the expenditure of resources that arises from having to defend multiple suits, see Gasho v. United States, 39 F.3d 1420, 1437 (9th Cir. 1994) (quoting congressional hearings), cert. denied, 515 U.S. 1144 (1995), and that purpose is like wise implicated when the government is forced to defend simultaneous claims against the government and its em ployees in one suit.1 The court of appeals' reading of Section 2676 thus best comports with its purposes and congressional intent.

Accordingly, the courts of appeals have overwhelm ingly agreed with the Seventh Circuit that an FTCA judgment bars a Bivens judgment on claims brought as part of the same action. See, e.g., Unus, 565 F.3d at 122 (finding FTCA judgment to bar Bivens judgment in the same suit); Harris v. United States, 422 F.3d 322, 334 (6th Cir. 2005) ("In accordance with the consistent appli cation of the judgment bar over the fifty years since its enactment, we have held that [Section 2676] applies even when the claims were tried together in the same suit.") (internal quotation marks and citation omitted); Trent adue, 397 F.3d at 859 (applying Section 2676 to bar a Bivens judgment entered prior to the FTCA judgment in the same suit); Rodriguez v. Handy, 873 F.2d 814, 816 (5th Cir. 1989) (holding that plaintiff's FTCA judgment against the United States barred his Bivens judgment in the same suit); Arevalo v. Woods, 811 F.2d 487, 490 (9th Cir. 1987); Serra, 786 F.2d at 241 (applying the judgment bar to a Bivens claim in the same action, the court noted that "it is inconsequential that the claims were tried together in the same suit"); United States v. Lushbough, 200 F.2d 717, 721 (8th Cir. 1952) ("The Dis trict Court, having awarded a judgment in favor of [plaintiff] in his action against the United States, could not in the face of the explicit provisions of [Section 2676] order judgment against [the government employee] in favor of [the plaintiff] in the same action.").

Furthermore, all of the courts to consider the issue have agreed that an FTCA judgment requires vacatur of an earlier Bivens judgment in the same action. See, e.g., Trentadue, 397 F.3d at 859 ("[T]he fact that the district court entered judgment on the Bivens claims before issuing its order and judgment in the FTCA case is in consequential under § 2676."); Engle v. Mecke, 24 F.3d 133 (10th Cir. 1994); Ortiz v. Pearson, 88 F. Supp. 2d 151, 167 (S.D.N.Y. 2000). Indeed, nothing in the text of Section 2676 reflects a temporal requirement that only subsequent judgments be barred; rather, it applies to "any action." 28 U.S.C. 2676 (emphasis added). As the court of appeals explained, "'any' means 'any,' regard less of the sequencing of the judgments."2 Pet. App. 14a.

2. Petitioner contends (Pet. 8-9) that in Kreines v. United States, 959 F.2d 834 (1992), the Ninth Circuit departed from the consensus of the courts of appeals that an FTCA judgment bars Bivens claims brought in the same action. But the Ninth Circuit, like the other courts to consider the issue, has held that Section 2676 does apply when Bivens and FTCA claims are brought in the same action; at most, Kreines carved out an ex ception to that rule. And in any event, the reasoning be hind Kreines's exception has been undermined by subse quent Ninth Circuit precedent.

The Ninth Circuit first considered the judgment bar's application in a suit involving both Bivens and FTCA claims in Arevalo, 811 F.2d at 490. There, the court found that Section 2676 barred the Bivens claims, holding that "[t]he moment judgment was entered against the government" on the plaintiff's FTCA claim, "then by virtue of section 2676, [the federal employee] was no longer answerable to [plaintiff] for damages." Ibid. Thus, the Ninth Circuit recognized, like all other courts of appeals to consider the issue, that Section 2676 bars recovery on Bivens claims even when those claims are brought as part of the same action as the FTCA claims. Ibid.

Subsequently, in Kreines, the Ninth Circuit acknowl edged that Arevalo had held that pursuant to Section 2676, an FTCA judgment "barred a contemporaneous Bivens judgment against a federal employee" in the same suit. Kreines, 959 F.2d at 838. The Kreines court established an exception to that rule, holding that when the government prevails on a plaintiff's FTCA claim, Section 2676 did not bar the plaintiff from recovering on a Bivens claim brought within the same suit. Ibid. The court reasoned that Section 2676 was "ambiguous on the question of whether an FTCA judgment favorable to the government bars a contemporaneous Bivens judgment." Ibid. Because the court viewed the primary purpose of Section 2676 as preventing dual recoveries arising from subsequent litigation, the court concluded that Section 2676 should not bar a contemporaneous Bivens recovery when the government prevailed on the plaintiff's FTCA claim.

Two years after the Kreines decision, however, the Ninth Circuit limited Kreines to its facts and cast doubt on its reasoning. See Gasho, 39 F.3d at 1437. Gasho concerned the application of the judgment bar to a plain tiff's Bivens claims when the plaintiff had already brought and lost FTCA claims in a separate suit. The court held that "[t]he language [of Section 2676] is not 'ambiguous' or 'vague,'" and that-contrary to Kreine's reasoning-the provision's plain language dictated that the judgment bar should apply regardless of whether the plaintiff had prevailed or lost on the FTCA claims. Ibid. ("The statute speaks of 'judgment' and suggests no distinction between judgments favorable and judgments unfavorable to the government."). The court also cast doubt on Kreines's reading of Section 2676's legislative history, concluding-like the court of appeals in this case-that because Congress was concerned not only with preventing dual recoveries, but also with protecting the government's resources in defending itself and its employees, the concerns animating the judgment bar are implicated even when there is no double recovery. Ibid. Thus, although Gasho concerned the application of Section 2676 to a subsequent suit, rather than to claims within a single suit (as in Kreines), Gasho casts doubt on the validity of Kreines's reasoning that Section 2676 is ambiguous and that its application within a single suit should depend on whether the FTCA judgment was favorable.

In light of Gasho, and given that the Ninth Circuit has not applied Kreines's holding in any subsequent de cision, it is entirely possible that the Ninth Circuit will reconsider its position should the opportunity arise. That is particularly so given the consensus that has broadened since Kreines was decided, to the effect that Section 2676 applies to claims in "any action," regardless of whether the claims are brought within one action or the plaintiff prevailed on the FTCA claims.3 Petitioner's asserted circuit conflict thus does not merit this Court's review.

3. Petitioner also contends (Pet. 11-17) that the court of appeals' decision conflicts with this Court's statement in Carlson v. Green, 446 U.S. 14, 20 (1980), that "Congress views FTCA and Bivens as parallel [and] complementary." Petitioner maintains (Pet. 13) that under the court's approach, FTCA and Bivens "causes of action are neither parallel nor complementary, but rather mutually exclusive," because the plaintiff may pursue only one to final judgment. Petitioner is incor rect.

In Carlson, this Court held that the fact that a plain tiff has an available claim under the FTCA does not au tomatically preempt the Bivens cause of action: both Bivens and FTCA claims are available to potential plain tiffs at the outset of a case. 446 U.S. at 20 (holding that plaintiffs "shall have an action under FTCA against the United States as well as a Bivens action against the indi vidual officials alleged to have infringed their constitu tional rights"). But the fact that both causes of action are available does not mean that plaintiffs have a right to recover on both.4 The Court did not hold, or even sug- gest, that an FTCA judgment has no effect on a plain- tiff's Bivens remedy. The plaintiff in Carlson did not bring an FTCA claim, and thus the Court had no occa sion to consider the effect of the judgment bar in that case. See Serra, 786 F.2d at 241 (reasoning that "the instant case, unlike Carlson, deals with the effect of a FTCA judgment on a plaintiff's power to continue to pursue a Bivens remedy"); see also Sanchez v. Rowe, 651 F. Supp. 571, 575 n.2 (N.D. Tex. 1986) ("[T]he hold ing in Carlson does not alter the plain meaning of § 2676 because Carlson did not deal with the effect of a FTCA judgment on a plaintiff's power to continue to pursue a Bivens remedy."); id. at 575-576.

Consistently with Carlson, the judgment bar permits a plaintiff to bring either an FTCA or a Bivens claim, or both. The existence of both causes of action gives plain tiffs a choice between two avenues of recovery-one based on the Constitution, and the other, on state tort law-arising from the same alleged conduct or transac tion. See Unus, 565 F.3d at 121. But because the avail ability of both claims creates the potential for duplica tive litigation and double recoveries, see Will v. Hallock, 546 U.S. 345, 354-355 (2006); Hoosier Bancorp of Ind., Inc. v. Rasmussen, 90 F.3d 180, 184-185 (7th Cir. 1996), Congress could reasonably decide to condition its waiver of sovereign immunity on a provision that alleviates these concerns by requiring plaintiffs to choose which claim they will bring to judgment.

Thus, the judgment bar simply affects a plaintiff's strategic calculus at the outset of the action and during its course. She can opt to bring either a Bivens or FTCA claim alone and pursue that claim to judgment; or she can opt to bring both claims in one action. See Trentadue, 397 F.3d at 858. The latter course may pro vide strategic advantages to a plaintiff, including the ability to utilize discovery to determine the relative strength of the two claims, and the ability to test the gov ernment's relative willingness to settle either claim. At the same time, such a plaintiff knows that at some point she must choose between the two claims, and if she de cides to pursue relief under Bivens, she must conduct the litigation so as to avoid a receiving a judgment on the FTCA claim. Although bringing both claims in one action thus creates the risk that the judgment bar will be triggered, barring recovery on the Bivens claims, that risk is simply the trade-off for the advantages that a plaintiff may see in bringing both claims rather than one or the other. See Unus, 565 F.3d at 122 (noting that "[l]itigants frequently face tough choices," and that a plaintiff must account for the risk of the judgment bar in strategizing about contemporaneous Bivens and FTCA claims).

4. Although petitioner suggests (Pet. 2-4) that the application of the judgment bar to his case was inequita ble, petitioner purposefully attempted to obtain judg ments on both claims, despite his awareness of the judg ment bar. See Pet. App. 9a-10a. Petitioner chose to have both his FTCA and Bivens claims adjudicated on the merits, and after obtaining a favorable verdict on his Bivens claims, petitioner specifically acknowledged, in a motion filed with the district court, that he was "aware[] of the risk that a judgment on the FTCA claim would nullify the Bivens judgment." Id. at 22a-23a. Nevertheless, as the district court found, petitioner con tinued to seek a judgment on his FTCA claim. Id. at 30a. The vacatur of petitioner's Bivens judgment was therefore the foreseeable result of his strategic decision to pursue his FTCA claims despite his knowledge of the risk of doing so.

Petitioner's argument thus reduces to the contention that he should have been allowed to pursue both claims to judgment and then decide which judgment he wanted to "keep." But that regime would be inconsistent with the text and purpose of the judgment bar, because it would give little protection to the employee-defendants or the government. See Arevalo, 811 F.2d at 490 ("We recognize that because the [Bivens] judgment * * * is greater than the judgment against the government, [plaintiff] might prefer to have the judgment against [the federal employee] rather than the judgment against the government. But it is too late for that choice.").

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
BARBARA L. HERWIG
TEAL LUTHY MILLER
Attorneys

SEPTEMBER 2009

1 Like the prosecution of multiple lawsuits, the pursuit of simulta neous claims against the government and its employees may increase the burden of discovery. In addition, because FTCA claims are tried before a judge but Bivens claims may be tried to a jury, the govern ment may have to defend separate trials within the same action.

2 Indeed, a contrary rule would permit some plaintiffs "to escape the judgment bar's preclusive effect" in cases like this one, where the dis trict court waited to enter judgment on the FTCA claim pending fur ther discovery. Trentadue, 397 F.3d at 859. Such a rule would render Section 2676 arbitrarily dependent upon the timing of a district court's judgments. Instead, by consistently applying the judgment bar regard less of whether the Bivens or FTCA judgment is entered first, the court of appeals ensured a uniform application of Section 2676 consistent with Congress's intent.

3 For the same reasons, any split of authority on whether the out come of the FTCA decision determines the applicability of the judg ment bar (Pet. 11) does not merit review. Gasho undermined Kreines's suggestion, 959 F.2d at 838, that the legislative history indicates that Section 2676 should not bar Bivens claims in the same action when the plaintiff did not prevail on his FTCA claims. Gasho, 39 F.3d at 1437. No other court of appeals has suggested that the outcome of the FTCA judgment is relevant to the application of the judgment bar. Contrary to petitioner's suggestion (Pet. 11), Trentadue explicitly holds that the valence of the decision is irrelevant. 397 F.3d at 858 ("[T]he judgment bar in § 2676 precludes plaintiffs from bringing a Bivens claim regarding the same subject matter regardless of whether the final FTCA judgment is rendered in favor of a plaintiff or the government.").

4 Indeed, the Court has held in other contexts that the Bivens cause of action need not be available at all; Congress can opt to provide alter nate remedies for constitutional torts even if those remedies offer less extensive relief than a Bivens action. See Bush v. Lucas, 462 U.S. 367, 380-389 (1983); id. at 372 (holding that the comprehensive statutory remedial scheme applicable to federal employees preempted Bivens ac tions even if "civil service remedies were not as effective as an individ ual damages remedy and did not fully compensate [the employee] for the harm he suffered") (footnote omitted); Schweiker v. Chilicky, 487 U.S. 412, 423 (1988) (declining to provide a Bivens remedy for Social Security claimants challenging the termination of their benefits).