The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0219p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
JAMES KING,
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Plaintiff-Appellant, │
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v. > No. 17-2101
│
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UNITED STATES OF AMERICA, et al. │
Defendants, │
│
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DOUGLAS BROWNBACK; TODD ALLEN, │
Defendants-Appellees. │
┘
On Remand from the United States Supreme Court.
United States District Court for the Western District of Michigan at Grand Rapids.
No. 1:16-cv-00343—Janet T. Neff, District Judge.
Decided and Filed: September 21, 2022
Before: BOGGS, CLAY, and ROGERS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Patrick Jaicomo, Anya Bidwell, Keith Neely, INSTITUTE FOR JUSTICE,
Arlington, Virginia, D. Andrew Portinga, MILLER JOHNSON, Grand Rapids, Michigan, for
Appellant. Michael Shih, Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees.
ROGERS, J., delivered the opinion of the court in which BOGGS, J., joined. CLAY, J.
(pp. 6–14), delivered a separate dissenting opinion.
No. 17-2101 King v. United States, et al. Page 2
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OPINION
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ROGERS, Circuit Judge. This case dealing with the Federal Tort Claims Act (FTCA)
judgment bar is on remand from the Supreme Court, and we must determine whether our
published holding in Harris v. United States, 422 F.3d 322 (6th Cir. 2005), should be overruled
based on language in three subsequent Supreme Court cases. We squarely held in Harris that the
FTCA judgment bar applies to other claims brought in the same action, including claims brought
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Harris has not been overruled by later precedent and, as a binding decision of this court,
requires that we affirm the district court’s dismissal of the plaintiff’s remaining claims.
This case arises from plaintiff James King’s erroneous apprehension by plainclothes FBI
task force members in July 2014. See King v. United States, 917 F.3d 409, 416-18 (6th Cir.
2019). Defendants Allen and Brownback were searching for a felony home invasion suspect,
relying on photographs of the suspect, a physical description, and the knowledge that the suspect
bought a soft drink from a specific gas station every afternoon. King, who was a college student
at the time, was walking in the area near the specific gas station in the afternoon when Allen and
Brownback approached him. The parties dispute whether the defendants identified themselves
as law enforcement. King initially answered the defendants’ questions about his identity and
complied with their order to put his hands on his head, and Allen removed a pocketknife and
wallet from King’s pocket. King, who thought he was being mugged, tried to run away, but
Allen tackled him and put him in a chokehold. King claims he briefly lost consciousness, and
when he came to, he fought with Allen for over sixty seconds. King bit Allen’s arm, and Allen
repeatedly punched King on his face and head. A witness who called 911 said that Allen and
Brownback were going to “kill this man” and that “they’re suffocating him.” Defendant Morris
responded to the scene and told bystanders to delete their videos of the fight. Prosecutors later
charged King, and a jury acquitted him on all counts.
King filed suit in federal district court, asserting a Bivens claim against Allen and
Brownback for violation of King’s Fourth Amendment rights, a 42 U.S.C. § 1983 claim against
No. 17-2101 King v. United States, et al. Page 3
Allen, Brownback, and Morris based on Fourth Amendment violations, and an FTCA claim
against the United States. The district court granted the defendants’ motion to dismiss all claims
on the merits, and did not address the FTCA judgment bar, which 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. King appealed. We held that the FTCA
judgment bar did not preclude King’s Bivens claim “because the district court lacked subject-
matter jurisdiction over Plaintiff’s FTCA claim,” so the FTCA claim was not resolved on the
merits and the judgment bar was not triggered. King, 917 F.3d at 419. We proceeded to hold
that the defendants were not entitled to qualified immunity on the Bivens claim. Id. at 422.
The United States appealed, and the Supreme Court reversed. The Court held that the
district court’s order dismissing King’s FTCA claim “also went to the merits of the claim and
thus could trigger the judgment bar.” Brownback v. King, 141 S. Ct. 740, 745 (2021). The Court
noted the parties’ mutual understanding that the judgment on the FTCA claim “must have been a
final judgment on the merits to trigger the [judgment] bar.” Id. at 747. Because the district
court’s order “hinged” on whether King could establish the elements of an FTCA claim, the
court reasoned, the order was on the merits for purposes of the judgment bar. See id. at 748. The
Court concluded that its analysis did not change based on the fact that the elements of an FTCA
claim also establish whether a district court has subject-matter jurisdiction over that claim. See
id. at 749. The Court stated that “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 bar.” Id.
At issue here is a footnote in the opinion that discussed how we should proceed on
remand. The Court noted that King had argued “that the judgment bar does not apply to a
dismissal of claims raised in the same lawsuit.” Id. at 747 n.4. But because we had not
addressed that argument, the Court declined to address it as well. The Court stated “[w]e leave it
to the Sixth Circuit to address King’s alternative arguments on remand.” On remand, we
requested supplemental briefing from the parties on whether the FTCA judgment bar applies to
claims in the same lawsuit, which would require the dismissal of King’s remaining Bivens claim.
No. 17-2101 King v. United States, et al. Page 4
Our previous decision in Harris compels our affirmance of the district court’s dismissal
of King’s remaining claims. As here, the plaintiff in Harris argued that “the judgment bar does
not apply where plaintiff has from the outset alleged his Bivens claims and sought a jury trial in
the same lawsuit alleging FTCA causes of action.” Harris, 422 F.3d at 334 (internal quotation
omitted). We discussed the caselaw, FTCA statutory history, and equitable principles and
proceeded to hold squarely that the FTCA judgment bar applies to other claims brought in the
same lawsuit. Id. at 334-37. King does not argue that Harris is distinguishable on its facts, that
the analysis in Harris was dictum rather than holding, that Harris was somehow inconsistent
with previous precedent, or that we are somehow freed from treating our precedent as binding by
the fact this case is on remand from the Supreme Court. Instead, King argues solely that three
intervening Supreme Court cases warrant our overruling Harris. But the language in those three
cases is not directly applicable to the issue in this case, as the United States pointed out, and
King’s reply brief did not further address the issue.
The three Supreme Court cases cited by plaintiff are Simmons v. Himmelreich, 578 U.S.
621 (2016), Will v. Hallock, 546 U.S. 345 (2006), and Brownback, but none of those cases can be
considered as having overruled our decision in Harris. First, Brownback is this very case, and
nothing in the Court’s opinion can be understood to indicate that the judgment bar cannot apply
to claims in the same action. Instead, the Court explicitly left the question open for us to address
on remand, see 141 S. Ct. at 747 n.4, which it would have been unlikely to have done if it
thought its precedent clearly answered the question.
Second, although Simmons’s holding took policies into account that could arguably
support not applying the FTCA judgment bar, the Court was at pains to distinguish cases that are
closer to this one than is Simmons. See 578 U.S. at 629-30. The issue in Simmons was whether
the FTCA judgment bar applies to claims that are explicitly exempted from the FTCA due to
their inclusion in the “Exceptions” section of the statute, 28 U.S.C. § 2680. Id. at 623, 626. The
Court focused on the plain text of the “Exceptions” section and held that the judgment bar did
not apply. See id. at 627. Unlike Simmons, this case did not involve dismissal under one of the
exceptions in § 2680. It is true that the Court noted the “strange result” that would occur if “the
viability of a plaintiff’s meritorious suit . . . should turn on the order in which the suits are
No. 17-2101 King v. United States, et al. Page 5
filed.” Id. at 630-31. The Court reasoned that a dismissal under one of the § 2680 exceptions
had “no logical bearing on whether an employee can be held liable instead” of the Government,
but explicitly distinguished other types of cases, like this one, in which the plaintiff otherwise
failed to prove his claim. Id. at 629-30. The Court stated that if the district court had dismissed
the FTCA claim on the merits, “it would make little sense to give [the plaintiff] a second bite at
the money-damages apple by allowing suit against the employees: [the plaintiff]’s first suit
would have given him a fair chance to recover damages for his beating.” Id. The Simmons
decision thus cannot be read to overrule our holding in Harris, where Simmons applied only to
the “Exceptions” provision of the FTCA and explicitly distinguished cases such as this one in
which the FTCA claim is adjudicated on the merits.
Finally, Will also does not call into question our Harris decision, because the Court in
Will rejected the doctrinally distinct jurisdictional argument that a district court’s rejection of the
judgment bar was immediately appealable under the collateral-order doctrine. See 546 U.S. at
355. In distinguishing the judgment bar from qualified immunity with respect to interlocutory
appealability, the Court indeed noted that “the judgment bar can be raised only after a case under
the Tort Claims Act has been resolved in the Government’s favor,” id. at 354, but that is true
regardless of whether or not both claims have been litigated in the same action.
For the foregoing reasons, we affirm the judgment of the district court.
No. 17-2101 King v. United States, et al. Page 6
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DISSENT
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CLAY, Circuit Judge, dissenting. Plaintiff James Lee King was walking to his summer
job when two strangers brutally attacked him. The two individuals attacked King so violently
that onlookers thought King would die. Unfortunately for King, he found out after the fact that
his attackers—Todd Allen and Douglas Brownback (collectively “Defendants”)—were federal
law enforcement officers. Allen and Brownback were allegedly searching for someone whose
description they thought matched King’s, but they never identified themselves to King as federal
agents.
King filed the present action alleging Fourth Amendment violations arising under
42 U.S.C. § 1983 or, alternatively, under the implied right of action set forth in Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The district court granted summary
judgment on these claims in favor of Defendants. The district court also dismissed King’s claim
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, for lacking subject matter
jurisdiction. On appeal, King only challenged whether the district court erred in granting
summary judgment on his Bivens claim; he did not appeal the dismissal of his FTCA claim. We
reversed the grant of summary judgment. In the process, we held that the dismissal of King’s
FTCA claim for lack of subject matter jurisdiction was not on the merits, and therefore, the
FTCA’s judgment bar did not apply. The Supreme Court reversed and remanded the case back
to the Sixth Circuit. In doing so, it held that dismissal of the FTCA claim for lack of subject
matter jurisdiction could be sufficient to invoke the judgment bar; but the Court specifically left
unanswered the question of whether the FTCA’s judgment bar may apply to claims brought in
the same action.
We must now decide whether the dismissal of King’s FTCA claim bars further
proceedings on his contemporaneously filed Bivens claim. In Harris v. United States, 422 F.3d
322 (6th Cir. 2005), we held that the judgment bar can be used to bar claims raised in the same
suit. However, Harris is now inconsistent with intervening Supreme Court precedent.
No. 17-2101 King v. United States, et al. Page 7
Accordingly, for the reasons set forth below, I would reverse and remand the case for further
proceedings. Because the majority does otherwise, I dissent.
I. BACKGROUND
Factual Background
On July 18, 2014, Defendants Todd Allen and Douglas Brownback were searching for a
criminal suspect named Aaron Davison. Police believed that Davison had committed felony
home invasion, and the State of Michigan had issued a warrant for his arrest. Defendants were
members of a “joint fugitive task force between the FBI and the City of Grand Rapids.” Officer
Allen was a detective with the Grand Rapids Police who had been assigned to work full time on
the FBI task force. Officer Brownback was a special agent with the FBI. Both officers were
out of uniform and in civilian clothes as they conducted their search, but they were both wearing
lanyards with their badges displayed over their plainclothes.
Defendants had a description of Aaron Davison to aid them in their search. They had
been told that Davison was a 26-year-old white male between 5ʹ10″ and 6ʹ3″ tall with glasses;
short, dark hair; and a thin build. Defendants also knew that Davison had a habit of buying a soft
drink from a particular gas station every day between 2:00 p.m. and 4:00 p.m. And Defendants
had two photographs of Davison. In the first photograph, the lighting was so dark that Davison
appeared as the silhouette of a man playing electric guitar. The second photograph, a driver’s
license photo, showed Davison’s face clearly, but the photo was seven years old at the time of
the search.
Around 2:30 p.m., Defendants saw Plaintiff walking down the street in an area near the
gas station where Davison was known to buy his daily soft drinks. Although Plaintiff was
merely a 21-year-old college student who was walking between his two summer jobs,
Defendants decided that Plaintiff might be their suspect because Plaintiff was a young white
male between 5ʹ10″ and 6ʹ3″ and was wearing glasses. From their unmarked vehicle, Defendants
studied Plaintiff’s face and decided that there was a “good possibility” that he was indeed
Davison. Defendants parked near Plaintiff and approached him. The parties dispute whether
Defendants identified themselves as law enforcement officers.
No. 17-2101 King v. United States, et al. Page 8
Defendants started asking Plaintiff questions. They asked Plaintiff who he was, and
Plaintiff truthfully answered that his name was James. Defendants then asked Plaintiff for
identification, and Plaintiff said that he had none. Defendants told Plaintiff to put his hands on
his head and to face their vehicle. Plaintiff later testified that he complied because Defendants
“had small badges around their chest, and [he] assumed [Defendants had] some sort of
authority.” Defendants asked Plaintiff if he was carrying any weapons, and Plaintiff told them
that he had a pocketknife. Officer Allen removed the pocketknife from Plaintiff’s pocket,
commented on the size of Plaintiff’s wallet, and then removed that, too, from Plaintiff’s pocket.
Plaintiff asked, “Are you mugging me?” and attempted to run away, but Officer Allen tackled
him to the ground, grabbed Plaintiff’s neck, and pushed him to the ground. Plaintiff then yelled
for help and begged passersby to call the police. Officer Allen then put Plaintiff in a chokehold,
at which point Plaintiff says that he lost consciousness. Several seconds later, when Plaintiff
came to, he bit into Officer Allen’s arm. Officer Allen then started punching Plaintiff in the head
and face “as hard as [he] could, as fast as [he] could, and as many times as [he] could.” Plaintiff
variously attempted to escape and to fight back, eventually releasing his bite, but he could not get
away; the fight continued for over sixty seconds.
As Officer Allen continued to punch Plaintiff in the head and face, several bystanders
called the police and began filming the incident. Numerous police officers arrived on the scene,
one of whom ordered the bystanders to delete their videos on the purported basis that the videos
could reveal the identities of undercover FBI agents. Some of the bystanders deleted their
videos, and footage of the actual altercation was never recovered. The surviving footage from
immediately after the incident includes one bystander who can be heard saying, “I was worried.
. . . They were out of control pounding him. . . . They were pounding his fa--head for no reason;
they were being brutal.” (Ex. 6, Timestamp 0:47–1:11.) In a bystander’s call to 911, she tells
the operator, “They’re gonna kill this man. . . . We can’t see the victim now. They’re over top of
him. They look like they’re suffocating him. . . . I understand they have badges on, but I don’t
see no undercover police cars, no other—backup, no nothing.” (Ex. 18, Timestamp 1:43–3:21.)
Plaintiff was transported from the scene to the hospital emergency room, where he
received medical treatment. The emergency room doctors concluded that Plaintiff’s injuries did
No. 17-2101 King v. United States, et al. Page 9
not require him to be admitted for further treatment, and they released him with a prescription for
painkillers. Upon Plaintiff’s discharge, police arrested him and took him to Kent County Jail.
Plaintiff spent the weekend in jail before posting bail and visiting another hospital for further
examination. Prosecutors pursued charges against Plaintiff for, among other charges, resisting
arrest. A jury acquitted him of all charges.
Procedural Background
On April 4, 2016, Plaintiff brought this suit against Defendants. Relevant to this appeal,
King alleged under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), that
Defendants violated his clearly established Fourth Amendment rights by conducting an
unreasonable seizure and by using excessive force. Plaintiff also asserted a claim against the
United States under the Federal Torts Claim Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2674. The
district court found that it lacked subject matter jurisdiction to hear Plaintiff’s claim against the
United States, and it granted summary judgment for Defendants on the basis that Defendants are
entitled to qualified immunity. Plaintiff then appealed only the grant of summary judgment on
his Bivens claim; he did not appeal the dismissal of his FTCA claim.
On appeal, we reversed the district court. We first held that dismissal of King’s FTCA
claim for lack of subject matter jurisdiction was proper. To proceed with an FTCA claim, a
plaintiff must satisfy six elements. One such element is that the defendants acted tortiously and
could be liable. However, we found that under Michigan law, Defendants would be entitled to
qualified immunity. Accordingly, King failed to state a claim for which relief could be granted,
which, by extension, deprived federal courts from exercising jurisdiction over King’s FTCA
claim. Without jurisdiction over his FTCA claim, we held the dismissal of such claim did not
amount to a judgment that could give rise to the FTCA’s judgment bar. We went on to hold that
the district court improperly granted summary judgment on King’s Bivens claim.
The Supreme Court granted certiorari and reversed. It held that a dismissal for lack of
jurisdiction constituted a judgment for purposes of the FTCA judgment bar. Thus, a dismissal
of an FTCA claim for lack of subject matter jurisdiction “could” preclude further claims.
However, because the Sixth Circuit had not addressed whether the judgment bar applies to
No. 17-2101 King v. United States, et al. Page 10
claims raised in the same action, the Supreme Court expressly declined to decide whether King’s
Bivens claim could proceed. The Court remanded King’s case back to the Sixth Circuit to
answer the limited question of whether the FTCA’s judgment bar can be used to preclude claims
raised in the same lawsuit.
II. DISCUSSION
Standard of Review
We review the application of the FTCA judgment bar de novo. See United States v.
Kuehne, 547 F.3d 667, 678 (6th Cir. 2008) (“Because this issue is a matter of statutory
interpretation, we conduct de novo review.” (quoting United States v. VanHoose, 437 F.3d 497,
501 (6th Cir. 2006)); accord Manning v. United States, 546 F.3d 430, 432 (7th Cir. 2008)
(reviewing application of FTCA judgment bar de novo).
Analysis
The FTCA provides a limited waiver of federal sovereign immunity, creating jurisdiction
for courts to hold the United States liable for certain torts committed by federal employees. 28
U.S.C. §§ 1346(b), 2671–80. The FTCA also contains a judgment bar, which precludes a
plaintiff from bringing additional claims concerning the same subject matter as an FTCA claim
after judgment is entered on the FTCA claim. § 2676. Section 2676 states in full: “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.” Pursuant to the Supreme Court’s
opinion in this case, a judgment has been entered on King’s FTCA claim. Brownback v. King,
141 S. Ct. 740, 745 (2021). The question before this Court is simply whether the judgment bar
applies to King’s Bivens claim.
Defendants, and the majority, rely primarily on Harris v. United States, 422 F.3d 322
(6th Cir. 2005), to argue that the preclusive effect of the judgment bar applies to claims raised in
the same suit. (See generally Appellees’ Br. 13–22.) In Harris, plaintiff Ronnie Harris
commenced an action against the United States and four federal agents under the FTCA and
No. 17-2101 King v. United States, et al. Page 11
Bivens, respectively, for conduct stemming from his arrest and prosecution at the Cleveland
airport. The district court “dismissed the Bivens claims against all four individual defendants
because they had been filed” improperly, but proceeded to enter a judgment for the United States
following a bench trial on Harris’ FTCA claim. Harris, 422 F.3d at 326. On appeal, Harris
argued that the dismissal of his Bivens claims was erroneous. Although the Sixth Circuit agreed
that the claims were wrongfully dismissed, reversal was not warranted. We held that “[e]ven
though the district court incorrectly dismissed Harris’ Bivens claims, we do not reinstate them
because they are barred by the court’s adjudication of his FTCA claims.” Id. at 333. We went
on to reject Harris’ argument “that the judgment bar does not apply where plaintiff has from the
outset alleged his Bivens claims and sought a jury trial in the same lawsuit alleging FTCA causes
of action.” Id. at 334 (citation omitted); see also Serra v. Pichardo, 786 F.2d 237, 241 (6th Cir.
1986) (“[I]t is inconsequential that the [FTCA and Bivens] claims were tried together in the same
suit and that the judgments were entered simultaneously.”).
While Harris seems to squarely address the issue presented in this case, it is controlling
only to the extent that its holding is not inconsistent with subsequent Supreme Court precedent.
Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009) (“A published prior panel
decision ‘remains controlling authority unless an inconsistent decision of the United States
Supreme Court requires modification of the decision or this Court sitting en banc overrules the
prior decision.’” (quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.
1985))). King argues that three cases since Harris are inconsistent with Harris’ holding that the
judgment bar applies to claims within the same suit.
The first case on which King relies is Will v. Hallock, 546 U.S. 345 (2006). In Will, the
Supreme Court confronted the question of whether a district court’s rejection of the judgment bar
as a defense was immediately appealable under the collateral order doctrine. The plaintiffs first
sued the United States under the FTCA for a seizure of property that effectively forced them out
of business. Will, 546 U.S. at 348. While the FTCA case was pending, the plaintiffs initiated a
Bivens suit against the federal employees; and after the plaintiffs’ action against the United
States was dismissed, the employee-defendants moved to dismiss the Bivens action pursuant to
the judgment bar. Hallock v. Bonner, 281 F. Supp. 2d 425, 426 (N.D.N.Y. 2003). The district
No. 17-2101 King v. United States, et al. Page 12
court denied the motion to apply the judgment bar, and the federal employees appealed. The
Supreme Court determined that application of the judgment bar was not subject to the collateral
order doctrine, like a denial of qualified immunity, because of what it described as “the bar’s
essential procedural element.” Will, 546 U.S. at 353. “The closer analogy to the judgment bar,
then, is not immunity but the defense of claim preclusion or res judicata.” Id. Although
recognizing that “the statutory judgment bar is arguably broader than traditional res judicata, it
functions in much the same way,” and that the concern behind both is avoiding “duplicative
litigation.” Id. Critically, the Supreme Court held that “there will be no possibility of a
judgment bar . . . so long as a Bivens action against officials and a Tort Claims Act against the
Government are pending simultaneously (as they were for a time here).” Id. Kings’ FTCA
claim and Bivens claims were pending simultaneously.
The second case on which King relies on is Simmons v. Himmelreich, 578 U.S. 621
(2016). The issue presented in that case was whether the “Exceptions” section of the FTCA
applied to the judgment bar. In the course of answering this question, the Supreme Court
reiterated its sentiment from Will that the judgment bar is “analog[ous] to the common-law
doctrine of claim preclusion, which prevents duplicative litigation by barring one party from
again suing the other over the same underlying facts.” Id. at 630 n.5. The Court noted that
“[t]he judgment bar provision supplements common-law claim preclusion by closing a narrow
gap: At the time that the FTCA was passed, common-law claim preclusion would have barred a
plaintiff from suing the United States after having sued an employee but not vice versa.” Id.
(emphasis added). Additionally, the Court was careful to interpret the judgment bar in such a
way as to avoid the prospect of the “strange result” that would occur if “the viability of a
plaintiff’s meritorious suit against an individual employee [w]ould turn on . . . the order in which
the district court chooses to address motions[].” Id. at 630–31.
Finally, King relies on Brownback—the Supreme Court’s opinion in this case. Again, the
Court reiterated that the judgment bar “functions in much the same way as [the common law
doctrine of claim preclusion].” Brownback, 141 S. Ct. at 747 (alteration in original).
Importantly, after years of stating the judgment bar functions the same as claim preclusion, the
Court noted that “[c]laim preclusion prevents parties from relitigating the same ‘claim’ or ‘cause
No. 17-2101 King v. United States, et al. Page 13
of action,’ even if certain issues were not litigated in the prior action. Suits involve the same
‘claim’ or ‘cause of action’ if the later suit ‘arises from the same transaction’ or involves a
‘common nucleus of operative facts.’” Id. at 747 n.3 (cleaned up) (emphasis added).
Reading Will, Simmons, and Brownback together leads to the unmistakable conclusion
that the FTCA’s judgment bar should be applied as would common law claim preclusion
accounting for the fact that it closes the above-mentioned “narrow gap,” which is not implicated
in this case. At common law, claim preclusion “is not appropriate within a single lawsuit so long
as it continues to be managed as a single action. Failure to advance all parts of a single claim, or
surrender of some part of a single claim as the action progresses, do not defeat the right to pursue
the parts that are advanced.” 18 Wright & Miller, Fed. Prac. & Proc. Juris § 4401 (3d ed. 2016);
see also 18 Wright & Miller, Fed. Prac. & Proc. Juris § 4404 (3d ed. 2016) (“Res judicata applies
as between separate actions, not within the confines of a single action on trial or appeal.”).
Because the holding in Harris is the opposite of what common law claim preclusion demands,
the case is inconsistent with subsequent Supreme Court instruction that the judgment bar should
“function[] in much the same way” as common law claim preclusion. Will, 546 U.S. at 353.
Moreover, applying Harris causes the “strange result” that the Supreme Court cautioned
against in Simmons. If dismissal of King’s FTCA claim precludes his Bivens claims, then King’s
meritorious suit against Defendants turns on the order in which the district court addresses the
motions before it. See Simmons, 578 U.S. at 630–31; cf. Carlson v. Green, 446 U.S. 14, 20
(1980) (“it [is] crystal clear that Congress views FTCA and Bivens as parallel, complementary
causes of action”).
Because the Supreme Court directs courts to apply the judgment bar like common law
claim preclusion, which does not apply to claims within the same suit, Harris must not control
the outcome of this appeal. To continue to follow Harris would be inconsistent with nearly two
decades of intervening Supreme Court precedent directing lower courts to interpret the judgment
bar consistent with common law claim preclusion doctrine.
Besides the common law concerns, not applying the judgment bar to intra-suit claims also
makes practical sense, especially under the facts of this case. King sought to revive only his
No. 17-2101 King v. United States, et al. Page 14
Bivens claims on appeal. Perhaps he agreed with the district court’s determination that his FTCA
claim lacked jurisdiction, and thought it would be frivolous to appeal that claim. Regardless of
the reason he failed to appeal the dismissal of his FTCA claim, future plaintiffs would be
incentivized to always appeal FTCA claims or risk having their entire suit dismissed under the
judgment bar. As the Supreme Court noted in Will, the concern behind the judgment bar is
avoiding “duplicative litigation.” 546 U.S. at 353. Under the same logic, incentivizing plaintiffs
to appeal FTCA claims as a matter of course, regardless of merit, is an equally absurd waste of
judicial resources.
III. CONCLUSION
The majority’s holding is a profound and frightening miscarriage of justice. That federal
officers who refuse to identify themselves can spontaneously, and unprovoked, beat an
individual nearly to death and be entirely free from civil liability simply because the individual
chooses not to waste judicial resources on a frivolous appeal is not compatible with notions of an
ordered and civilized society. Because the majority follows outdated law and dismisses King’s
claims, I strongly dissent.