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No. 09-294

 

In the Supreme Court of the United States

AYSHA NUDRAT UNUS AND HANAA UNUS, PETITIONERS

v.

DAVID KANE, ET AL.

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

 

QUESTIONS PRESENTED

1. Whether the court of appeals correctly upheld summary judgment for the United States on petitioners' common law tort claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., because petitioners failed to establish that the federal agents acted unreasonably under Virginia law in their execution of a lawful search warrant at petitioners' home.

2. Whether the court of appeals erred in applying the FTCA's judgment bar-which provides that a judg ment in an action under the FTCA "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-to preclude Bivens claims that had been brought together in the same lawsuit as the FTCA claim, an argument petitioners failed to raise be fore the court of appeals.

In the Supreme Court of the United States

No. 09-294

AYSHA NUDRAT UNUS AND HANAA UNUS, PETITIONERS

v.

DAVID KANE, ET AL.

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

BRIEF FOR THE RESPONDENTS IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-56a) is reported at 565 F.3d 103. The opinions of the district court (Pet. App. 57a-78a, 79a-80a, 81a-102a, 103a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on May 6, 2009. On July 27, 2009, the Chief Justice ex tended the time within which to file a petition for a writ of certiorari to and including September 3, 2009, and the petition was filed on that date. 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 sovereign 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). The FTCA permits suit against the United States "un der circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission oc curred." 28 U.S.C. 1346(b)(1). See 28 U.S.C. 2674 (mak ing United States liable "in the same manner and to the same extent as a private individual under like circum stances").

The FTCA places a variety of limits on the United States' waiver of its immunity. For example, the FTCA excludes from the waiver of immunity claims arising out of the exercise of a discretionary function. 28 U.S.C. 2680(a). In addition, the FTCA's judgment bar, 28 U.S.C. 2676, protects the government from the need to defend multiple actions against itself and the federal employee whose acts gave rise to the injury. The FTCA's judgment bar provides that "[t]he judgment in an action under [the FTCA] 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." Ibid.

In 1988, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), Pub. L. No. 100-694, 102 Stat. 4563, which makes an action against the United States under the FTCA the plaintiff's sole remedy for most claims. 28 U.S.C. 2679(b)(1). If the plaintiff sues a federal em ployee for acts within the scope of his employment, the United States is substituted as the defendant and the suit proceeds as one under the FTCA. 28 U.S.C. 2679(d)(1). Congress made an exception to the Westfall Act's exclusivity and substitution provisions for claims against employees for violating the Constitution. 28 U.S.C. 2679(b)(2)(A). The FTCA's judgment bar, how ever, contains no such exception.

2. In March 2002, as a part of an extensive, multi- agency investigation of a group of organizations and persons suspected of supporting international terrorism, federal investigators obtained a search warrant for a number of locations, including the home of Dr. Iqbal Unus. Pet. App. 3a. The affidavit supporting the war rant explained that many of the organizations had over lapping leadership comprised of persons suspected of supporting terrorism. Id. at 7a. The affidavit detailed transactions among the organizations, including entities in which Dr. Unus held positions, which seemed to serve no logical business or charitable purpose, and it ex plained that efforts to trace the funds through overseas transactions had met a dead end. Id. at 6a-8a. The war rant authorized agents to seize from Dr. Unus's home certain items that might be evidence of money launder ing, tax evasion and extending material support to ter rorists abroad. Id. at 9a.

Federal agents arrived at Dr. Unus's home to exe cute the warrant at approximately 10:30 a.m. Pet. App. 9a. The lead agent pounded on the front door and or dered the occupants to open it. Ibid. Petitioner Aysha Unus (Dr. Unus's wife) was in the living room at the rear of the house, and petitioner Hanaa Unus (one of the Unus's daughters) was sleeping upstairs. Ibid. Aysha Unus heard the pounding on the door and a voice order ing her to open it. Ibid. She moved toward the door, coming within about 15 feet of it, and saw a gun through a side window. Ibid. The agents saw her through the side window come toward the door and then, in response to the demand that she open the door, "run 'down the hallway to the back of the house'" without opening it. Id. at 27a.

Aysha Unus began screaming for Hanaa Unus and moved toward a door at the back of the house. Pet. App. 10a. Hanaa Unus came down the stairs and joined Aysha Unus at the back of the house, where they began to place a phone call. Ibid. The agents then broke down the front door with a battering ram. Ibid. The agents came into the room, at least one with a gun drawn, and ordered the women to drop the phone and put their hands up. Ibid. The agents encountered "hectic condi tions" on entry; there was "'excitement' in [petitioners'] voices, and [petitioners] were 'clearly concerned and worried and agitated,'" to the extent that their behavior suggested to the agents that there was some "possibility that [petitioners] would take some action that would make an unstable situation." Id. at 32a. The agents or dered petitioners to sit on couches in the living room and handcuffed them with their hands behind their backs. Id. at 10a.

The agents then began to search the premises. Dur ing the search, petitioners remained handcuffed for nearly four hours. Pet. App. 32a. The agents "reas sessed the situation as the search progressed," moving the handcuffs to the front to make petitioners more com fortable, allowing them to use the restroom, and allow ing Aysha Unus to self-administer her diabetes medica tion. Id. at 10a, 33a. Around 2 p.m., petitioners in formed the officers that they were obliged to perform afternoon prayers, in accordance with their Muslim faith. Ibid. An agent removed their handcuffs, allowing them to perform their prayers. Ibid. The agents did not allow petitioners to pray outside of the presence of male agents, or allow petitioners to wear head scarves or cover their hands while the male agents were present, or while being photographed. Id. at 11a. After petitioners concluded their prayers, they were not handcuffed again, but remained confined to the living room for the duration of the search. Ibid. At the conclusion of the search, the agents left petitioners with a copy of the warrant and a written inventory of the items seized. Ibid.

3. Petitioners brought suit against the agents, as serting claims for common law torts of assault-and-bat tery and false imprisonment as well as constitutional claims under Bivens v. Six Unknown Named Federal Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971), for asserted violations of petitioners' rights under the First and Fourth Amendments to the United States Constitution. Pet. App. 11a-13a.1 The United States was substituted as defendant on the common law tort claims. Id. at 18a. Those claims were initially dis missed for failure to exhaust administrative remedies; after exhausting those remedies, petitioners refiled their claims under the FTCA as part of an amended complaint. Id. at 18a-20a.

On February 3, 2006, the district court dismissed peti tioners' Fourth Amendment Bivens claim on the ground that the individual defendants were entitled to qualified immunity. Pet. App. 73a-74a, 76a. The court held that it was not clearly established that the agents' conduct in detaining and handcuffing petitioners during the execu tion of the search warrant would violate petitioners' con stitutional rights. Id. at 73a-74a. The court later dis missed petitioners' First Amendment Bivens claims on statute of limitations grounds. See id. at 20a.

On November 2, 2007, the district court granted sum mary judgment in favor of the United States on petition ers' FTCA tort claims. Pet. App. 81a-103a. The court explained that there was no genuine issue of material fact with regard to the reasonableness of the federal agents' actions during the search, and that summary judgment was therefore appropriate. Id. at 97a-98a, 101a-102a. After holding for the United States on the FTCA claims, the court denied petitioners' motion to reconsider the dismissal of petitioners' First Amend ment Bivens claims on statute of limitations grounds. The court concluded that its grant of summary judgment to the United States on the FTCA claims "moot[ed] any issue * * * whether or not any of the individual defen dants should be in this case." Id. at 101a.

4. The court of appeals affirmed. Pet. App. 1a-56a. As relevant here, petitioners argued that the district court erred in granting summary judgment to the United States on their FTCA claims for assault-and-bat tery and false imprisonment, and that the judgment bar did not apply to their First Amendment Bivens claim because that claim did not arise out of the same subject matter as their FTCA claims. The court of appeals re jected those arguments.

The court observed that petitioners' FTCA claims were governed by "the substantive law of the state where the alleged tort took place: in this case, the law of the Commonwealth of Virginia." Pet. App. 24a. The court determined that, under Virginia law, petitioners' false imprisonment and assault and battery claims would each fail if the restraint on liberty or unwanted touching was legally justified. Id. at 24a-25a. Police officers' use of force or restraint is justified, under state law, if "rea sonable" in "execut[ing] their lawful duties." Id. at 25a. Thus, the court characterized the central question as whether "the federal agent defendants acted reasonably under Virginia law." Ibid.

The court noted that, in a criminal case, the Virginia Supreme Court had stated that an "officer's conduct in executing a search warrant is judged in terms of its rea sonableness within the meaning of the fourth amend ment to the United States Constitution and Article I, § 10 of the Constitution of Virginia." Ibid. (quoting Lewis v. Commonwealth, 493 S.E.2d 397, 399 (Va. App. 1997)). Noting the priority of officer safety under Vir ginia law, id. at 26a, the court concluded that the federal agents acted reasonably in the execution of the search warrant. The court observed that the agents "were exe cuting a facially valid search warrant" that authorized them to search for financial documents relating to fi nancing of international terrorism. Id. at 30a-31a. The Court also concluded that, even though they were "searching for financial documents only," the agents acted reasonably in handcuffing petitioners for a period of slightly less than four hours during the search be cause the search was being conducted "at a residence believed to contain evidence of money laundering by entities suspected of assisting international terrorism," where, "[v]iewed objectively, [they] did not know whe ther they would be confronted by resistance," and be cause they encountered "hectic conditions" upon entry that suggested that there was a "possibility that [peti tioners] would take some action that would make an un stable situation." Id. at 31a-32a.

Finally, the court rejected petitioners' argument that the FTCA judgment bar did not preclude their Bivens claims because those claims "are predicated on different conduct and allege distinct injuries from the FTCA claims." Pet. App. 35a. The court rejected that narrow construction of the judgment bar, holding that it pre cludes all Bivens claims "arising out of the same actions, transactions, or occurrences" as the FTCA claim. Ibid. (quoting Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 858 (10th Cir. 2005)). The court explained that the FTCA claims and Bivens claims "arose out of the 'same subject matter' * * * -the exe cution of the Warrant-by the 'employee of the govern ment whose act or omission gave rise to the claim.'" Id. at 36a (citation omitted). The FTCA judgment therefore barred petitioners' Bivens claims based on the execution of the warrant. Ibid.

ARGUMENT

Petitioners ask this Court (Pet. 9-21) to determine whether the federal agents' conduct in executing the search warrant violated petitioners' Fourth Amendment rights. That issue is not directly presented here. The court of appeals addressed whether "the federal agent defendants acted reasonably under Virginia law," Pet. App. 25a, a question of state law that does not warrant this Court's review. The court of appeals' consideration of the Fourth Amendment was subsumed entirely in resolving the reasonableness of the agents' actions un der state law. The court's analysis of that question was correct and does not conflict with any decision of this Court or another court of appeals. Petitioners also seek this Court's review (Pet. 21-25) of the question whether the judgment on an FTCA claim can bar a Bivens claim asserted within the same suit. Petitioners did not raise that argument in the court of appeals and should not be permitted to raise it for the first time before this Court. In any event, the court of appeals' application of the judgment bar is correct, and petitioners overstate the extent of any circuit conflict. Review by this Court is therefore unwarranted.

1. Petitioners mischaracterize the court of appeals as having ruled, "[w]ith respect to petitioners' Fourth Amendment claim," that the federal agents' actions were constitutional. Pet. 5. The court of appeals did not rule on the merits of petitioners' Fourth Amendment claim, which was asserted only against the individual agents, holding instead that that claim was precluded by the FTCA's judgment bar. Pet. App. 36a. The part of the court of appeals' decision cited by petitioners as ad dressing their "Fourth Amendment claim," see Pet. 5-7 (quoting Pet. App. 30a-33a), was in fact an analysis of petitioners' "false imprisonment and battery claims," Pet. App. 28a, under Virginia law, as made applicable under the FTCA, id. at 24a-25a. The court of appeals' resolution of that state law question was correct and does not warrant this Court's review.

a. Because the FTCA makes the United States' lia bility turn on "the law of the place where the act or omission occurred," 28 U.S.C. 1346(b)(1), the relevant question is whether "local law would make a 'private per son' liable in tort." United States v. Olson, 546 U.S. 43, 44 (2005) (quoting 28 U.S.C. 1346(b)(1) (emphasis omit ted)). See Richards v. United States, 369 U.S. 1, 5, 11 (1962) (United States' liability under the FTCA turns on state tort law). Consistent with that principle, the court of appeals correctly recognized that petitioners' false imprisonment and assault and battery claims were gov erned by "the substantive law of * * * the Common wealth of Virginia." Pet. App. 24a. Under Virginia law, it is neither false imprisonment nor assault or battery for a police officer to restrain one's liberty or engage in unwanted touching if the officer's conduct was legally justified. Id. at 24a-25a (citing Jordan v. Shands, 500 S.E.2d 215, 218 (Va. 1998), and Koffman v. Garnett, 574 S.E.2d 258, 261 (Va. 2003)). Because police officers' use of force or restraint is justified, under Virginia law, if "reasonable" in "execut[ing] their lawful duties," id. at 25a, the court correctly characterized the central ques tion in petitioners' appeal as whether "the federal agent defendants acted reasonably under Virginia law," ibid.

The court of appeals' discussion of this Court's Fourth Amendment precedent, see Pet. App. 28a-33a, took place entirely within this framework of Virginia's common law torts of false imprisonment and battery, id. at 28a. While the court of appeals noted that, in a crimi nal case, the Virginia Supreme Court had stated that an "officer's conduct in executing a search warrant is judged in terms of its reasonableness within the mean ing of the fourth amendment to the United States Con stitution and Article I, § 10 of the Constitution of Vir ginia," Pet. App. 25a (quoting Lewis v. Commonwealth, 493 S.E.2d 397, 399 (Va. App. 1997)), that does not transform the legal question whether "the federal agent defendants acted reasonably under Virginia law," ibid., into a question of federal constitutional law that this Court should review. Notably, the court of appeals be gan its analysis of the state-law reasonableness inquiry with the premise "that Virginia has recognized that 'the safety of the officer when conducting his duties is of par amount importance,'" id. at 26a (quoting Harris v. Com monwealth, 400 S.E.2d 191, 194 (Va. 1991)). Likewise, in assessing the reasonableness of the agents' actions in forcing entry into petitioners' home with respect to that aspect of petitioners' assault claim, the court again re lied on Virginia law with respect to when such a forceful entry is reasonable. Ibid. (quoting Lewis, 493 S.E.2d at 399).

This Court does not generally review a federal court of appeal's determination of a question of state law. Huddleston v. Dwyer, 322 U.S. 232, 237 (1944); see Eu gene Gressman et al., Supreme Court Practice § 4.10, at 261 (9th ed. 2007). Although, in this case, the court of appeals looked to federal constitutional law as instruc tive of the state law inquiry of legal justification and reasonableness, Pet. App. 29a-31a, that discussion, as described above, was filtered through the lens of Vir ginia's emphasis on officer safety. Moreover, because the ultimate question is whether "the federal agents acted reasonably under Virginia law," id. at 25a, this Court would have to consider whether the officer's con duct, even if ultimately determined to have been uncon stitutional, was nonetheless reasonable in light of the law as it existed at the time of their conduct. Notably, petitioners' arguments in support of certiorari (Pet. 10- 13) rely heavily on an analysis of this Court's decision in Muehler v. Mena, 544 U.S. 93 (2005), a decision that post-dates the conduct at issue here by three years. As the district court observed in dismissing petitioners' Fourth Amendment Bivens claims, the agents reason ably believed their conduct was permissible at the time of their actions. Pet. App. 72a. In an analogous situa tion, the Ninth Circuit upheld dismissal of a plaintiff's FTCA false arrest claim under California law, even though the arrest was later determined to have violated the plaintiff's First Amendment rights, because the offi cer's conduct "was not a violation of clearly established law" at the time, Galvin v. Hay, 374 F.3d 739, 758 (2004), and the officers therefore "had reasonable cause to believe the arrest was lawful," ibid. (quoting Cal. Pe nal Code § 847(b)(1) (West 2008)).

Even if petitioners were correct that the court of ap peals' analysis of Muehler was in tension with other courts of appeals, but see pp. 15-16, infra, the Court should address that issue in a case in which the Fourth Amendment question is cleanly presented, not where, as here, the Fourth Amendment is relevant only to the ex tent it sheds light on a question of state law-whether "the federal agent defendants acted reasonably under Virginia law" such that their actions were "justified" within the meaning of Virginia false imprisonment and battery law. Pet. App. 24a-25a.

b. The court of appeals' decision was, in any event, correct and does not, contrary to petitioners' conten tions (Pet. 12-14, 16-21), conflict with this Court's deci sion in Muehler or decisions of the Ninth and Tenth cir cuits. Further review of the court of appeals' application of this Court's precedent to the particular facts of this case is not warranted.

i. The court of appeals correctly concluded that fed eral agents acted reasonably in detaining petitioners incident to the search of their residence for evidence related to a terrorism investigation and in handcuffing petitioners for slightly less than four hours. To the ex tent the Fourth Amendment was relevant to the avail ability of a cause of action under state law, the court of appeals recognized Michigan v. Summers, 452 U.S. 692 (1981), and Muehler v. Mena, 544 U.S. 93, 99-100 (2005), as the leading authorities and correctly observed that, under those decisions, the propriety of handcuffing indi viduals detained during a search depends on whether "the governmental interests" in handcuffing "outweigh the marginal intrusion" it imposes. Pet. App. 31a (quot ing Muehler, 544 U.S. at 99-100); see id. at 29a ("[i]nherent in Summers' authorization to detain an oc cupant of the place to be searched is the authority to use reasonable force to effectuate the detention," including handcuffs) (quoting Muehler, 544 U.S. at 98-99).

The court of appeals concluded that, under the par ticular facts and circumstances of this case, the agents acted reasonably in detaining petitioners incident to the search and in imposing the additional intrusion of handcuffing them during part of the search. Although the agents were searching for "financial documents only-and not for either weapons or persons-a reason able officer would have had legitimate safety concerns under the[] circumstances." Pet. App. 31a. The court noted that the agents were executing the warrant "at a residence believed to contain evidence of money laun dering by entities suspected of assisting international terrorism," which meant that, "[v]iewed objectively, the agents did not know whether they would be confronted by resistance." Id. at 31a-32a. In that context, and in light of petitioners' "excitement" and "agitated" state when the agents entered the residence, the agents acted reasonably by initially handcuffing petitioners. Id. at 32a. Nor, in light of petitioners' behavior at the time of entry, did the officers act unreasonably in keeping peti tioners in handcuffs while the agents executed the "terrorism-related warrant." Ibid. The court stressed that the agents had moved the handcuffs from the back to the front to make petitioners more comfortable and later, after reassessing the situation, removed the hand cuffs entirely. Id. at 32a-33a.

Contrary to petitioners' arguments (Pet. 12), Sum mers and Muehler do not authorize restraint of an occu pant during execution of a search warrant "only in the context of searches for contraband." Pet. 13. Although the facts of Summers and Muehler involved searches for contraband, they stand for the broader proposition that the governmental interests in detaining and handcuffing the occupants of a location while it is searched can, in appropriate circumstances, outweigh the intrusion on the individual's liberty. Neither decision holds that con traband searches are the only context in which such con straints are appropriate. While Justice Kennedy's con curring opinion observed that "police handcuffing dur ing searches" should "become[] neither routine nor un duly prolonged," Muehler, 544 U.S. at 102, he recog nized that concerns for officer safety, the risk of inter ference, and delay of the search are all relevant factors in assessing the reasonableness of the use of handcuffs. Id. at 103. Justice Kennedy urged that the passage of prolonged time "require[s] revisiting the necessity of handcuffing," ibid., which is precisely what happened here, where petitioners were initially handcuffed behind their backs, later handcuffed in front, and later freed from handcuffs altogether when the agent in charge deemed the situation warranted it. Pet. App. 32a-33a.

Neither Summers nor Muehler precludes the possi bility that significant governmental interests-such as guarding against potential dangers posed by the subject of the search's ties to violent terrorist organizations, or by the particular circumstances of resistance that the officers on the scene confront-might make it reason able for agents to detain and handcuff the occupants of a house during the execution of a warrant. The court of appeals' holding does not conflict with this Court's pre cedent, and no further review is warranted.

ii. For similar reasons, the court of appeals' decision also does not conflict with decisions of the Ninth and Tenth Circuits identified by petitioners. See Pet. 16-21 (citing cases). The subject-matter of the search of course is relevant to deciding whether the governmental interest in controlling the scene of the search through handcuffing the occupants of the search location out weighs the burdens imposed on those individuals. And, contrary to petitioners' arguments, the court of appeals in this case did not hold "that it made no difference that the officers were executing a warrant seeking financial records, as opposed to contraband," Pet. 21; rather, the court recognized the significance of the fact that the evidence the officers were seeking consisted of financial records related to "entities suspected of assisting inter national terrorism." Pet. App. 31a-32a. Petitioners dis agree with the lower courts' conclusion that officers in the federal agents' situation would have reason to be concerned for their safety and their control of the search scene while executing a warrant relating to terrorism financing. But nothing in the decisions from the Ninth and Tenth Circuits upon which petitioners rely suggests that those courts would refuse to consider whether a search might, under particular circumstances, present a sufficient threat to governmental interests to justify detention and handcuffing even though the search was not for contraband. Like the Fourth Circuit, the Ninth and Tenth Circuits recognize that the reasonableness of detention pursuant to search, including handcuffing, must be assessed in light of the circumstances of the case. See Tekle v. United States, 511 F.3d 839, 849-850 (9th Cir. 2007); Denver Justice & Peace Comm., Inc. v. City of Golden, 405 F.3d 923, 929, 929-931 (10th Cir. 2005), cert. dismissed, 546 U.S. 1146 (2006). Neither the Ninth nor the Tenth Circuit has addressed the reason ableness of handcuffing in circumstances such as those in this case. Nor is there any need for this Court to re view the court of appeals' analysis of Fourth Amend ment precedent on the particular facts of this case, par ticularly because the Fourth Amendment analysis was solely in aid of the ultimate question whether "the fed eral agent defendants acted reasonably under Virginia law." Pet. App. 25a.

2. Petitioners also contend (Pet. 21-25) that the court of appeals erred in "holding that the FTCA's judg ment bar applies to the dismissal of individual claims in the same suit" as a claim against the United States un der the FTCA. Pet. 22. See Pet. 24 (citing conflict re garding whether "the judgment bar applies to contem poraneous Bivens claims"). Petitioners did not raise that argument in the court of appeals. Review of peti tioners' second question presented is therefore unwar ranted. See United States v. United Foods, Inc., 533 U.S. 405, 416-417 (2001) (petitioner should not be heard to "assert new substantive arguments attacking, rather than defending, the judgment when those arguments were not pressed in the court whose opinion we are re viewing").

A. Before the court of appeals, petitioners only chal lenged application of the judgment bar to their First Amendment claim, arguing that "[petitioners'] First Amendment claims do not relate to the 'same subject matter' as [petitioners'] common law claims that were dismissed on summary judgment." Appellants' Reply Br. 4 (quoting 28 U.S.C. 2676).2 Petitioners went on to argue that "[t]he subject matter of [petitioners'] First Amendment claims is violation of their rights to freely exercise their religion" in connection with their prayers, whereas "the subject matter of [petitioners'] common law claims [was] the agents' assault, battery and impris onment of [petitioners] in handcuffs." Ibid. Because, petitioners maintained, the First Amendment claims stemmed from different "actions" and different "inju ries," the judgment bar should not apply. Ibid. Peti tioners did not contend, as they do in this Court, that the fact that the Bivens and FTCA claims were litigated in the same suit rendered the judgment bar inapplicable, Pet. 22.

The court of appeals addressed the argument peti tioners advanced, i.e., that their Bivens claims were "predicated on different conduct and allege distinct inju ries from the FTCA claims," Pet. App. 35a, and properly rejected petitioners' attempt to narrow the reach of the judgment bar in that fashion. The court recognized that "[i]n order for § 2676 to have effect, it must encompass all of the claims that could have been brought with re gard to the conduct at issue against the responsible 'em ployee of the government.'" Ibid. (quoting Section 2676); see id. at 34a-35a (Bivens claims are "by reason of the same subject matter" so long as they "aris[e] out of the same actions, transactions, or occurrences" as an FTCA claim). Because "the district court properly awarded summary judgment to the United States on the FTCA claims," and "[t]hose claims arose out of the 'same subject matter' as the * * * Bivens subclaims," the Bivens claims were precluded under Section 2676 by "the court's summary judgment award on the FTCA claims." Id. at 36a (quoting 28 U.S.C. 2676).

Petitioners do not contend that the court of appeals' holding with respect to the "same subject matter" re quirement conflicts with any decision of this Court or of any other court of appeals. Rather, petitioners urge this Court to addresss a different issue, whether "the FTCA's judgment bar applies to the dismissal of individ ual claims in the same suit" or is instead "limited to the dismissal of FTCA claims in a separate action." Pet. 22. Petitioners urge that "[t]he Sixth and Seventh Circuits expressly rejected the Ninth Circuit's holding in Kreines [v. United States, 959 F.2d 834 (1992),] and found that the judgment bar applies to contemporaneous Bivens claims regardless of who prevails on the FTCA claim." Pet. 24. Notably, petitioners do not contend that the court of appeals' decision in this case expressly rejected Kreines, which petitioners' court of appeals briefs did not cite, or that the decision below even men tioned that purported circuit conflict. Petitioners should not be permitted to attack the court of appeals' decision in this Court based on a new argument that it failed to raise below.

B. In any event, the court of appeals was correct to apply the judgment bar in this case, even though the Bivens and FTCA claims were brought in the same suit, and there is no clear conflict among the courts of ap peals on that issue that would warrant this Court's re view even if the question were properly presented in this case.

i. The FTCA grew out of "a feeling that the Govern ment should assume the obligation to pay damages for the misfeasance of employees in carrying out its work." Dalehite v. United States, 346 U.S. 15, 24 (1953), par tially overruled on other grounds by Rayonier Inc. v. United States, 352 U.S. 315 (1957). Before the FTCA's enactment, parties injured by a government employee's actions were forced to seek relief through private bills in Congress, ibid., or by suing the government employee in his individual capacity, United States v. Gilman, 347 U.S. 507, 511 n.2 (1954) (quoting testimony of Assistant Attorney General Francis M. Shea). Such suits consti tuted "a very real attack upon the morale of the ser vices" because most government employees were "not in a position to stand or defend large damage suits." Ibid. They also represented a burden on government re sources, because "the Government, through the Depart ment of Justice, [was] constantly being called on * * * to go in and defend" federal employees from suit. Ibid.

Since the FTCA's enactment, the judgment bar has been an integral part of the statutory scheme. Section 2676 provides that "[t]he judgment in an action under [the FTCA] 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. In other words, once the FTCA action is the subject of a judgment, that judgment cuts off the claimant's ability to pursue relief against government employees individu ally. By enacting the FTCA, Congress offered plaintiffs the opportunity, subject to certain limits, to sue a finan cially responsible defendant. Through the judgment bar, Congress ensured that, if a claimant chose to pur sue an FTCA action against the United States, the judg ment in that suit would protect federal employees against the threat and distraction of litigation, and pro tect as well the government from having to expend its resources defending against further litigation arising out of the same incident. See Gilman, 347 U.S. at 511 n.2.

Consistent with the provision's purposes, the courts of appeals have uniformly acknowledged that the judg ment bar applies even when the plaintiff brings her claims against the United States and claims against the individual federal employee in a single lawsuit. Numer ous courts had so recognized before enactment of the Westfall Act in 1988, when federal employees could still be sued for common law torts committed within the scope of their employment. See, e.g., Aetna Cas. & Sur. Co. v. United States, 570 F.2d 1197, 1201 (4th Cir.) ("[A] judgment against the United States would automatically bar the entry of any contemporaneous or subsequent judgment against [the government employees]."), cert. denied, 439 U.S. 821 (1978); Gilman v. United States, 206 F.2d 846, 848 (9th Cir. 1953) ("[T]he moment judg ment was entered against the Government, then by vir tue of § 2676 * * * the employee [who had been impleaded] was no longer primarily answerable to the claimant,-he was not answerable at all."), aff'd, 347 U.S. 507 (1954); United States v. Lushbough, 200 F.2d 717, 721 (8th Cir. 1952) ("The District 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.").

The courts of appeals have continued to apply that rule after the Westfall Act's adoption. Although Con gress excepted Bivens claims from the Westfall Act's exclusivity and substitution provisions, 28 U.S.C. 2679(b)(2)(A), it made no such exception to the judgment bar, as to which Congress's concern about defending multiple claims against the United States and individual employee defendants remains the same. And the courts of appeals have continued to apply the judgment bar when plaintiffs join in a single suit their FTCA claims against the United States and Bivens claims against federal employees individually. See, e.g., Manning v. United States, 546 F.3d 430 (7th Cir. 2008), cert. denied, 130 S. Ct. 552 (2009); Harris v. United States, 422 F.3d 322, 334 (6th Cir. 2005) ("In accordance with the consis tent application 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.") (quotation marks and citation omitted); Es tate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840 (10th Cir. 2005) (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); see also Denson v. United States, 574 F.3d 1318, 1334 n.50 (11th Cir. 2009) (noting that "[a] majority of courts have construed § 2676 as barring a plaintiff's Bivens claims, irrespective of whether the Bivens and FTCA claims were brought in the same law suit").

ii. Petitioner contends (Pet. 22-23) that in Kreines v. United States, 959 F.2d 854 (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 is inconsistent with prior Ninth Circuit precedent and has been undermined by subse quent decisions of that court as well. That inconsis tency, which amounts to an intra-circuit conflict within the Ninth Circuit, does not warrant this Court's review. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).

As noted above, long before Kreines, the Ninth Cir cuit had recognized that an FTCA judgment bars a judgment against the federal employee even though the claims were brought simultaneously in the same suit. See Arevalo v. Woods, 811 F.2d 487, 490 (1987) ("The moment judgment was entered against the government, then by virtue of section 2676, [the federal employee] was no longer answerable to [plaintiff] for damages," though both claims were raised in a single action.); Gilman, 206 F.2d at 848 ("[T]he moment judgment was entered against the Government, then by virtue of § 2676 * * * the employee was no longer primarily answerable to the claimant,-he was not answerable at all.").

In Kreines, the panel acknowledged 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 prevailed 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 was preventing dual recoveries arising from subsequent liti gation, the court concluded that Section 2676 should not bar a contemporaneous Bivens recovery when the gov ernment prevailed on the plaintiff's FTCA claim.

Two years after Kreines, however, the Ninth Circuit limited Kreines to its facts and cast doubt on its reason ing. See Gasho v. United States, 39 F.3d 1420, 1437 (1994), cert. denied, 515 U.S. 1144 (1995). Gasho con cerned 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 Kreines' 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 that because Congress was con cerned 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 dou ble 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 judg ment was favorable or unfavorable to the plaintiff.

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.

The Court recently denied a petition for certiorari raising the same issue as the second question presented by petitioners. See Manning v. United States, 130 S. Ct. 552 (2009). There is no reason for a different re sult in this case, especially because petitioners failed to raise the issue before the court of appeals.

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

DECEMBER 2009

1 Petitioners also sued the agent whose affidavit supported the search warrant and another individual who had provided information in support of the affidavit. Pet. App. 5a, 12a-13a. Those claims were dis missed, id. at 13a-15a, and are not at issue in the petition.

2 Petitioners did not address the judgment bar in their opening Brief of Appellants.