Brownback v. King

(Slip Opinion) OCTOBER TERM, 2020 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BROWNBACK ET AL. v. KING

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 19–546. Argued November 9, 2020—Decided February 25, 2021

The Federal Tort Claims Act (FTCA) allows a plaintiff to bring certain

state-law tort claims against the United States for torts committed by

federal employees acting within the scope of their employment, pro-

vided that the plaintiff alleges six statutory elements of an actionable

claim. See 28 U. S. C. §1346(b). Another provision, known as the judg-

ment bar, provides that “[t]he judgment in an action under section

1346(b)” shall bar “any action by the claimant” involving the same sub-

ject matter against the federal employee whose act gave rise to the

claim. §2676. Respondent James King sued the United States under

the FTCA after a violent encounter with Todd Allen and Douglas

Brownback, members of a federal task force. He also sued the officers

individually under the implied cause of action recognized by Bivens v.

Six Unknown Fed. Narcotics Agents, 403 U. S. 388. The District Court

dismissed his FTCA claims, holding that the Government was immune

because the officers were entitled to qualified immunity under Michi-

gan law, or in the alternative, that King failed to state a valid claim

under Federal Rule of Civil Procedure 12(b)(6). The court also dis-

missed King’s Bivens claims, ruling that the officers were entitled to

federal qualified immunity. King appealed only the dismissal of his

Bivens claims. The Sixth Circuit found that the District Court’s dis-

missal of King’s FTCA claims did not trigger the judgment bar to block

his Bivens claims.

Held: The District Court’s order was a judgment on the merits of the

FTCA claims that can trigger the judgment bar. Pp. 5–10.

(a) Similar to common-law claim preclusion, the judgment bar re-

quires a final judgment “ ‘on the merits,’ ” Semtek Int’l Inc. v. Lockheed

Martin Corp., 531 U. S. 497, 502. Here, the District Court’s summary

2 BROWNBACK v. KING

Syllabus

judgment ruling dismissing King’s FTCA claims hinged on a quintes-

sential merits decision: whether the undisputed facts established all

the elements of King’s FTCA claims. See Arbaugh v. Y & H Corp., 546

U. S. 500, 510–511. The court’s alternative Rule 12(b)(6) holding also

passed on the substance of King’s FTCA claims, as a 12(b)(6) ruling

concerns the merits. Id., at 506–507. Pp. 5–7.

(b) In passing on King’s FTCA claims, the District Court also deter-

mined that it lacked subject-matter jurisdiction over those claims. In

most cases, a plaintiff’s failure to state a claim under Rule 12(b)(6)

does not deprive a federal court of subject-matter jurisdiction. See

Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89. Here,

however, in the unique context of the FTCA, all elements of a merito-

rious claim are also jurisdictional. Thus, even though a plaintiff need

not prove a §1346(b)(1) jurisdictional element for a court to maintain

subject-matter jurisdiction over his claim, see FDIC v. Meyer, 510 U. S.

471, 477, because King’s FTCA claims failed to survive a Rule 12(b)(6)

motion to dismiss, the court also was deprived of subject-matter juris-

diction. Generally, a court may not issue a ruling on the merits when

it lacks subject-matter jurisdiction, see Steel Co., 523 U. S., at 101–

102, but where, as here, pleading a claim and pleading jurisdiction en-

tirely overlap, a ruling that the court lacks subject-matter jurisdiction

may simultaneously be a judgment on the merits that can trigger the

judgment bar. Pp. 7–9.

917 F. 3d. 409, reversed.

THOMAS, J., delivered the opinion for a unanimous Court. SOTOMAYOR,

J., filed a concurring opinion.

Cite as: 592 U. S. ____ (2021) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

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corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–546

_________________

DOUGLAS BROWNBACK, ET AL., PETITIONERS v.

JAMES KING

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[February 25, 2021]

JUSTICE THOMAS delivered the opinion of the Court.

The Federal Tort Claims Act (FTCA) allows a plaintiff to

bring certain state-law tort suits against the Federal Gov-

ernment. 28 U. S. C. §2674; see also §1346(b). It also in-

cludes a provision, known as the judgment bar, which pre-

cludes “any action by the [plaintiff], by reason of the same

subject matter, against the employee of the government

whose act or omission gave rise to the claim” if a court en-

ters “[t]he judgment in an action under section 1346(b).”

§2676. The Sixth Circuit held that the District Court’s or-

der dismissing the plaintiff’s FTCA claims did not trigger

the judgment bar because the plaintiff’s failure to establish

all elements of his FTCA claims had deprived the court of

subject-matter jurisdiction. We disagree and hold that the

District Court’s order also went to the merits of the claim

and thus could trigger the judgment bar.

I

A

The FTCA streamlined litigation for parties injured by

federal employees acting within the scope of their employ-

ment. Before 1946, a plaintiff could sue a federal employee

2 BROWNBACK v. KING

Opinion of the Court

directly for damages, but sovereign immunity barred suits

against the United States, even if a similarly situated pri-

vate employer would be liable under principles of vicarious

liability. Pfander & Aggarwal, Bivens, the Judgment Bar,

and the Perils of Dynamic Textualism, 8 U. St. Thomas

L. J. 417, 424–425 (2011); see also Philadelphia Co. v. Stim-

son, 223 U. S. 605, 619–620 (1912). Despite that immunity,

the Government often would provide counsel to defendant

employees or indemnify them. Pfander, 8 U. St. Thomas

L. J., at 425. In addition, Congress passed private bills that

awarded compensation to persons injured by Government

employees. Id., at 424, n. 39. But by the 1940s, Congress

was considering hundreds of such private bills each year.

Ibid.1 “Critics worried about the speed and fairness with

which Congress disposed of these claims.” Id., at 426.

“In 1946, Congress passed the FTCA, which waived the

sovereign immunity of the United States for certain torts

committed by federal employees” acting within the scope of

their employment. FDIC v. Meyer, 510 U. S. 471, 475–476

(1994). The Act in effect ended the private bill system by

transferring most tort claims to the federal courts. See

Pfander, 8 U. St. Thomas. L. J., at 424, n. 39. Plaintiffs

were (and are) required to bring claims under the FTCA in

federal district court. Federal courts have jurisdiction over

these claims if they are “actionable under §1346(b).” Meyer,

510 U. S., at 477. A claim is actionable if it alleges the six

elements of §1346(b), which are that the claim be:

“[1] against the United States, [2] for money

damages, . . . [3] for injury or loss of property,

or personal injury or death [4] caused by the

negligent or wrongful act or omission of any

employee of the Government [5] while acting

within the scope of his office or employment,

——————

1 In 1939 and 1940 the 76th Congress considered 1,763 private bills, of

which 315 became law. Pfander, 8 U. St. Thomas L. J., at 424, n. 39.

Cite as: 592 U. S. ____ (2021) 3

Opinion of the Court

[6] under 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.” Ibid. (quoting §1346(b)).

While waiving sovereign immunity so parties can sue the

United States directly for harms caused by its employees,

the FTCA made it more difficult to sue the employees them-

selves by adding a judgment bar provision. That provision

states: “The 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.” §2676. “[O]nce a plaintiff receives a judgment

(favorable or not) in an FTCA suit,” the bar is triggered, and

“he generally cannot proceed with a suit against an individ-

ual employee based on the same underlying facts.” Sim-

mons v. Himmelreich, 578 U. S. 621, 625 (2016). The Act

thus opened a new path to relief (suits against the United

States) while narrowing the earlier one (suits against em-

ployees).

B

This case involves a violent encounter between respond-

ent James King and officers Todd Allen and Douglas

Brownback, members of a federal task force, who mistook

King for a fugitive. King sued the United States under the

FTCA, alleging that the officers committed six torts under

Michigan law. He also sued the officers individually under

the implied cause of action recognized by Bivens v. Six Un-

known Fed. Narcotics Agents, 403 U. S. 388 (1971), alleging

four violations of his Fourth Amendment rights. The de-

fendants moved to dismiss under Federal Rule of Civil Pro-

cedure 12(b)(1) for lack of subject-matter jurisdiction and

under Rule 12(b)(6) for failure to state a claim. In the al-

ternative, they moved for summary judgment.

4 BROWNBACK v. KING

Opinion of the Court

The District Court dismissed King’s claims. As to his

FTCA claims, the court granted the Government’s sum-

mary judgment motion.2 It found that the undisputed facts

showed that the officers did not act with malice. The offic-

ers thus would have been entitled to state qualified immun-

ity had Michigan tort claims been brought against them.

See Odom v. Wayne County, 482 Mich. 459, 473–474, 760

N. W. 2d 217, 224–225 (2008). The court, following its own

precedent, ruled that the Government was immune because

it retains the benefit of state-law immunities available to

its employees. The court also ruled in the alternative that

King’s FTCA claims failed under Rule 12(b)(6) because his

complaint did not present enough facts to state a plausible

claim to relief for any of his six tort claims. The court dis-

missed King’s Bivens claims as well, ruling that the defend-

ants were entitled to federal qualified immunity. King ap-

pealed only the dismissal of his Bivens claims.

As a threshold question, the Sixth Circuit assessed

whether the dismissal of King’s FTCA claims triggered the

judgment bar and thus blocked the parallel Bivens claims.

See King v. United States, 917 F. 3d 409, 418–421 (2019).

It did not, according to the Sixth Circuit, because “the dis-

trict court dismissed [King]’s FTCA claim[s] for lack of sub-

ject-matter jurisdiction” when it determined that he had

not stated a viable claim and thus “did not reach the mer-

its.” Id., at 419; but see Unus v. Kane, 565 F. 3d 103, 121–

122 (CA4 2009) (holding that summary judgment on the

plaintiffs’ FTCA claims triggered judgment bar with re-

spect to Bivens claims). The Sixth Circuit then held that

the defendant officers were not entitled to qualified immun-

ity and reversed the District Court.

——————

2 Like the Sixth Circuit, we construe the District Court’s primary rul-

ing on the FTCA claims as a grant of summary judgment for the defend-

ants because its ruling relied on the parties “ ‘Joint Statement of

Facts . . . unless otherwise indicated.’ ” King v. United States, 917 F. 3d

409, 416, n. 1 (CA6 2019) (quoting ECF Doc. 91, p. 1).

Cite as: 592 U. S. ____ (2021) 5

Opinion of the Court

We granted certiorari, 589 U. S. ___ (2020), and now

reverse.

II

A

The judgment bar provides that “[t]he judgment in an ac-

tion under section 1346(b)” shall bar “any action by the

claimant” involving the same subject matter against the

employee of the Federal Government whose act gave rise to

the claim. §2676. Here, the District Court entered a “Judg-

ment . . . in favor of Defendants and against Plaintiff.” ECF

Doc. 92. The parties agree that, at a minimum, this judg-

ment must have been a final judgment on the merits to trig-

ger the bar, given that the “provision functions in much the

same way as [the common-law doctrine of claim preclu-

sion].” Simmons, 578 U. S., at 630, n. 5 (internal quotation

marks omitted).3 We agree.4

——————

3 The terms res judicata and claim preclusion often are used inter-

changeably. See Lucky Brand Dungarees, Inc. v. Marcel Fashions Group,

Inc., 590 U. S. ___, ___ (2020) (slip op., at 6). But res judicata “comprises

two distinct doctrines.” Ibid. The first is issue preclusion, also known as

collateral estoppel. Ibid. It precludes a party from relitigating an issue

actually decided in a prior case and necessary to the judgment. Ibid. The

second doctrine is claim preclusion, sometimes itself called res judicata.

Ibid. Claim preclusion prevents parties from relitigating the same

“claim” or “ ‘cause of action,’ ” even if certain issues were not litigated in

the prior action. Ibid. Suits involve the same “claim” or “ ‘ cause of ac-

tion ’ ” if the later suit “ ‘ “aris[es] from the same transaction” ’ ” or involves

a “ ‘common nucleus of operative facts.’ ” Ibid.

4 King argues, among other things, that the judgment bar does not ap-

ply to a dismissal of claims raised in the same lawsuit because common-

law claim preclusion ordinarily “is not appropriate within a single law-

suit.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Proce-

dure §4401 (3d ed. Supp. 2020). The Sixth Circuit did not address those

arguments, and “we are a court of review, not of first view.” Cutter v.

Wilkinson, 544 U. S. 709, 718, n. 7 (2005). We leave it to the Sixth Cir-

cuit to address King’s alternative arguments on remand.

6 BROWNBACK v. KING

Opinion of the Court

B

This Court has explained that the judgment bar was

drafted against the backdrop doctrine of res judicata. See

ibid.5 To “trigge[r ] the doctrine of res judicata or claim pre-

clusion” a judgment must be “ ‘on the merits.’ ” Semtek Int’l

Inc. v. Lockheed Martin Corp., 531 U. S. 497, 502 (2001).

Under that doctrine as it existed in 1946, a judgment is “on

the merits” if the underlying decision “actually passes di-

rectly on the substance of a particular claim before the

court.” Id., at 501–502 (cleaned up).6 Thus, to determine if

the District Court’s decision is claim preclusive, we must

determine if it passed directly on the substance of King’s

FTCA claims. We conclude that it did.

The District Court’s summary judgment ruling hinged on

a quintessential merits decision: whether the undisputed

facts established all the elements of King’s FTCA claims.

See Arbaugh v. Y & H Corp., 546 U. S. 500, 510–511 (2006).

The court noted that one element of an FTCA claim is that

the plaintiff establish that the Government employee would

be liable under state law. The court then explained that

Michigan law provides qualified immunity for Government

employees who commit intentional torts but act in subjec-

tive good faith. See Odom, 482 Mich., at 461, 481–482, 760

N. W. 2d, at 218, 229. And it concluded that, because the

undisputed facts here showed that the officers would have

——————

5 The parties disagree about how much the judgment bar expanded on

common-law preclusion, but those disagreements are not relevant to our

decision. See n. 4, supra.

6 We use the term “on the merits” as it was used in 1946, to mean a

decision that passed on the substance of a particular claim. “[O]ver the

years the meaning of the term ‘judgment on the merits’ ‘has gradually

undergone change’ ” and now encompasses some judgments “that do not

pass upon the substantive merits of a claim and hence do not (in many

jurisdictions) entail claim-preclusive effect.” Semtek, 531 U. S., at 502.

Regardless, the FTCA judgment in this case is an “on the merits” deci-

sion that passes on the “substance” of King’s FTCA claims under the

1946 meaning or present day meaning of those terms.

Cite as: 592 U. S. ____ (2021) 7

Opinion of the Court

been entitled to immunity from King’s tort claims, the

United States, by extension, was not liable under the

FTCA.7

The court’s alternative Rule 12(b)(6) holding also passed

on the substance of King’s FTCA claims. The District Court

ruled that the FTCA count in King’s complaint did not state

a claim, because even assuming the complaint’s veracity,

the officers used reasonable force, had probable cause to de-

tain King, and otherwise acted within their authority. “If

the judgment determines that the plaintiff has no cause of

action” based “on rules of substantive law,” then “it is on

the merits.” Restatement of Judgments §49, Comment a, p.

193 (1942). A ruling under Rule 12(b)(6) concerns the mer-

its. Cf. Arbaugh, 546 U. S., at 506–507. The District Court

evaluated King’s six FTCA claims under Rule 12(b)(6) and

ruled that they failed for reasons of substantive law.

C

The one complication in this case is that it involves over-

lapping questions about sovereign immunity and subject-

matter jurisdiction. In such cases, the “merits and jurisdic-

tion will sometimes come intertwined,” and a court can de-

cide “all . . . of the merits issues” in resolving a jurisdic-

tional question, or vice versa. Bolivarian Republic of

Venezuela v. Helmerich & Payne Int’l Drilling Co., 581 U. S.

___, ___ (2017) (slip op., at 7). That occurred here. The Dis-

trict Court passed on the substance of King’s FTCA claims

and found them implausible. In doing so, the District Court

also determined that it lacked jurisdiction. But an on-the-

merits judgment can still trigger the judgment bar, even if

that determination necessarily deprives the court of sub-

ject-matter jurisdiction.

——————

7 We express no view on the availability of state-law immunities in this

context. Compare Medina v. United States, 259 F. 3d 220, 225, n. 2 (CA4

2001), with Villafranca v. United States, 587 F. 3d 257, 263, and n. 6

(CA5 2009).

8 BROWNBACK v. KING

Opinion of the Court

The District Court did lack subject-matter jurisdiction

over King’s FTCA claims. In most cases, a plaintiff’s failure

to state a claim under Rule 12(b)(6) does not deprive a fed-

eral court of subject-matter jurisdiction. See Steel Co. v.

Citizens for Better Environment, 523 U. S. 83, 89 (1998).

“Dismissal for lack of subject-matter jurisdiction . . . is

proper only when the claim is so . . . ‘completely devoid of

merit as not to involve a federal controversy.’ ” Ibid. How-

ever, a plaintiff must plausibly allege all jurisdictional ele-

ments. See, e.g., Dart Cherokee Basin Operating Co. v. Ow-

ens, 574 U. S. 81, 89 (2014). And in the unique context of

the FTCA, all elements of a meritorious claim are also ju-

risdictional. Meyer, 510 U. S., at 477. So even though a

plaintiff need not prove a §1346(b)(1) jurisdictional element

for a court to maintain subject-matter jurisdiction over his

claim, see ibid., a plaintiff must plausibly allege all six

FTCA elements not only to state a claim upon which relief

can be granted but also for a court to have subject-matter

jurisdiction over the claim. That means a plaintiff must

plausibly allege that “the United States, if a private person,

would be liable to the claimant” under state law both to sur-

vive a merits determination under Rule 12(b)(6) and to es-

tablish subject-matter jurisdiction. §1346(b)(1). Because

King’s tort claims failed to survive a Rule 12(b)(6) motion to

dismiss, the United States necessarily retained sovereign

immunity, also depriving the court of subject-matter juris-

diction.

Ordinarily, a court cannot issue a ruling on the merits

“when it has no jurisdiction” because “to do so is, by very

definition, for a court to act ultra vires.” Steel Co., 523 U. S.,

at 101–102. But where, as here, pleading a claim and

pleading jurisdiction entirely overlap, a ruling that the

court lacks subject-matter jurisdiction may simultaneously

be a judgment on the merits that triggers the judgment

Cite as: 592 U. S. ____ (2021) 9

Opinion of the Court

bar.8 A dismissal for lack of jurisdiction is still a “judg-

ment.” See Restatement of Judgments §49, Comment a, at

193–194 (discussing “judgment . . . based on the lack of ju-

risdiction”). And even though the District Court’s ruling in

effect deprived the court of jurisdiction, the District Court

necessarily passed on the substance of King’s FTCA claims.

See Part II–B, supra. Under the common law, judgments

were preclusive with respect to issues decided as long as the

court had the power to decide the issue. See Restatement

of Judgments §49, Comment b, at 195–196. Because “a fed-

eral court always has jurisdiction to determine its own ju-

risdiction,” United States v. Ruiz, 536 U. S. 622, 628 (2002),

a federal court can decide an element of an FTCA claim on

the merits if that element is also jurisdictional. The Dis-

trict Court did just that with its Rule 12(b)(6) decision.9

* * *

We conclude that the District Court’s order was a judg-

ment on the merits of the FTCA claims that can trigger the

judgment bar. The judgment of the United States Court of

Appeals for the Sixth Circuit is reversed.

It is so ordered.

——————

8 In cases such as this one where a plaintiff fails to plausibly allege an

element that is both a merit element of a claim and a jurisdictional ele-

ment, the district court may dismiss the claim under Rule 12(b)(1) or

Rule 12(b)(6). Or both. The label does not change the lack of subject-

matter jurisdiction, and the claim fails on the merits because it does not

state a claim upon which relief can be granted. However, in other cases

that overlap between merits and jurisdiction may not exist. In those

cases, the court might lack subject-matter jurisdiction for non-merits

reasons, in which case it must dismiss the case under just Rule 12(b)(1).

9 The District Court did not have the power to issue its summary judg-

ment ruling because that decision was not necessary for the court “to

determine its own jurisdiction.” Ruiz, 536 U. S., at 628. The court should

have assessed whether King’s FTCA claims plausibly alleged the six el-

ements of §1346(b)(1) as a threshold matter, and then dismissed those

claims for lack of subject-matter jurisdiction once it concluded they were

not plausibly alleged. See Steel Co. v. Citizens for Better Environment,

523 U. S. 83, 94–95 (1998).

Cite as: 592 U. S. ____ (2021) 1

SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–546

_________________

DOUGLAS BROWNBACK, ET AL., PETITIONERS v.

JAMES KING

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[February 25, 2021]

JUSTICE SOTOMAYOR, concurring.

I join the Court’s opinion because I agree that the District

Court dismissed King’s Federal Tort Claims Act (FTCA)

claims on the merits. Importantly, the Court does not today

decide whether an order resolving the merits of an FTCA

claim precludes other claims arising out of the same subject

matter in the same suit. Although the parties briefed the

issue, it was not the basis of the lower court’s decision. See

ante, at 5, n. 4. I write separately to emphasize that, while

many lower courts have uncritically held that the FTCA’s

judgment bar applies to claims brought in the same action,

there are reasons to question that conclusion. This issue

merits far closer consideration than it has thus far received.

King argues that the judgment bar merely “supplements

common-law claim preclusion by closing a narrow gap,” pre-

venting plaintiffs from bringing duplicative litigation

against first the United States and then its employees.

Simmons v. Himmelreich, 578 U. S. 621, 630, n. 5 (2016);

see also ibid. (“At the time that the FTCA was passed, com-

mon-law claim preclusion would have barred a plaintiff

from suing the United States after having sued an em-

ployee but not vice versa”). On petitioners’ view, however,

the judgment bar provides that any order resolving an

FTCA claim automatically precludes separate claims

2 BROWNBACK v. KING

SOTOMAYOR, J., concurring

brought in the same action and arising from the same com-

mon nucleus of facts. This is a significant departure from

the normal operation of common-law claim preclusion,

which applies only in separate or subsequent suits follow-

ing a final judgment. See, e.g., G. & C. Merriam Co. v. Saal-

field¸ 241 U. S. 22, 29 (1916) (“Obviously, the rule for deci-

sion applies only when the subsequent action has been

brought”).

King raises a number of reasons to doubt petitioners’

reading. Looking first to the text, the FTCA’s judgment bar

is triggered by “[t]he judgment in an action under section

1346(b).” 28 U. S. C. §2676. A “judgment” is “[a] court’s

final determination of the rights and obligations of the par-

ties in a case.” Black’s Law Dictionary 1007 (11th ed. 2019);

see also 1 H. Black, Law of Judgments §1, p. 2, n. l (1891)

(“ ‘A judgment is the final consideration and determination

of a court . . . upon the matters submitted to it’ ”). Decisions

disposing of only some of the claims in a lawsuit are not

“judgments.”

Similarly, once the judgment bar is triggered, it precludes

“any action by the claimant.” §2676. An “action” refers to

the whole of the lawsuit. See Black’s Law Dictionary, at 37

(defining “action” as a “civil or criminal judicial proceed-

ing”); Black’s Law Dictionary 43 (3d ed. 1933) (“The terms

‘action’ and ‘suit’ are now nearly, if not entirely, synony-

mous”). Individual demands for relief within a lawsuit, by

contrast, are “claims.” See Black’s Law Dictionary, at 311

(2019) (defining a “claim” as “the part of a complaint in a

civil action specifying what relief the plaintiff asks for”);

Black’s Law Dictionary, at 333 (1933) (defining a “claim” as

“any demand held or asserted as of right” or “cause of

action”).

Thus, giving the judgment bar’s two key terms their tra-

ditional meanings, “the judgment in an action under section

1346(b)” that triggers the bar is the final order resolving

every claim in a lawsuit that includes FTCA claims. When

Cite as: 592 U. S. ____ (2021) 3

SOTOMAYOR, J., concurring

triggered, the judgment bar precludes later “action[s],” not

claims in the same suit. So read, the statutory judgment

bar “functions in much the same way” as claim preclusion,

“with both rules depending on a prior judgment as a condi-

tion precedent.” Will v. Hallock, 546 U. S. 345, 354 (2006).1

Turning next to the FTCA’s purpose and effect, under

King’s reading, the judgment bar also serves the same, fa-

miliar functions as claim preclusion: “avoiding duplicative

litigation” by barring repetitive suits against employees

without “reflecting a policy that a defendant should be scot

free of any liability.” Ibid. Petitioners’ interpretation, by

contrast, appears inefficient. Precluding claims brought in

the same suit incentivizes plaintiffs to bring separate suits,

first against federal employees directly and second against

the United States under the FTCA. See Sterling v. United

States, 85 F. 3d 1225, 1228–1229 (CA7 1996) (holding that

judgment in a prior direct action did not preclude a later

FTCA suit against the United States).2

Petitioners’ interpretation also produces seemingly un-

fair results by precluding potentially meritorious claims

when a plaintiff’s FTCA claims fail for unrelated reasons.

Here, for example, King’s constitutional claims require only

——————

1 Nearby §2672 could further support this interpretation. That section

provides that an administrative settlement with the United States “shall

constitute a complete release of any claim against the United States and

against the employee of the government” who committed the tort. Unlike

the judgment bar, §2672 uses unambiguous language (“release of any

claim”) to ensure that settlements with the United States both preclude

future litigation and resolve pending claims against federal employees.

Had Congress intended to give both provisions the same effect, “it pre-

sumably would have done so expressly.” Russello v. United States, 464

U. S. 16, 23 (1983).

2 Some courts have held that precluding claims in the same action pre-

vents plaintiffs from recovering for the same injury from both the United

States and the federal employee. The law, however, already bars double

recovery for the same injury. See, e.g., Zenith Radio Corp. v. Hazeltine

Research, Inc., 401 U. S. 321, 348 (1971) (“[T]he law . . . does not permit

a plaintiff to recover double payment”).

4 BROWNBACK v. KING

SOTOMAYOR, J., concurring

a showing that the officers’ behavior was objectively unrea-

sonable, while the District Court held that the state torts

underlying King’s FTCA claims require subjective bad

faith. If petitioners are right, King’s failure to show bad

faith, which is irrelevant to his constitutional claims,

means a jury will never decide whether the officers violated

King’s constitutional rights when they stopped, searched,

and hospitalized him.

There are, of course, counterarguments. On the text, pe-

titioners point out that it would be strange to refer to the

entire lawsuit as “an action under section 1346(b)” even af-

ter the Court has decided all the claims brought under the

FTCA. Better, they argue, to read “judgment in an action

under section 1346(b)” to mean any order resolving all the

FTCA claims in the suit. They urge further that claims in

the same suit should be among the covered actions because

the bar precludes “any action,” rather than “subsequent” ac-

tions, which is the typical formulation of claim preclusion.

As to the judgment bar’s purpose, petitioners contend that

the FTCA gives tort claimants a choice that comes with a

cost: They can sue the United States and access its deeper

pockets, but, if they do, then the outcome of the FTCA

claims resolves the entire controversy. This preserves fed-

eral resources while allowing tort claimants to decide

whether to bring FTCA claims at all.

There are naturally counterarguments to those counter-

arguments, and so on, but further elaboration here is un-

necessary. As the Court points out, “ ‘we are a court of re-

view, not of first view.’ ” Ante, at 5, n. 4 (quoting Cutter v.

Wilkinson, 544 U. S. 709, 718, n. 7 (2005)). While lower

courts have largely taken petitioners’ view of the judgment

bar, few have explained how its text or purpose compels

that result. In my view, this question deserves much closer

analysis and, where appropriate, reconsideration.