# Hallock v. Bonner > Court of Appeals for the Second Circuit · October 22, 2004 · 387 F.3d 147 URL: https://www.frixlaw.com/law-library/cases/8409227 ## Case - **Full name:** Susan HALLOCK, Ferncliff Associates, Inc., doing business as Multimedia Technology Center v. Robert C. BONNER, Richard Will, Dennis P. Harrison, Margaret M. Jordan, Thomas Virgilio, Unknown Named Agents of United States Customs and Treasury, Unknown Named Agents of United States Department of Justice, Unknown Named Agents of United States Postal Service, Unknown Named Agents of United States Marshals Service, John & Jane Does 1-25 - **Court:** Court of Appeals for the Second Circuit - **Decided:** October 22, 2004 - **Citations:** 387 F.3d 147; 2004 WL 2367830 - **Precedential status:** Published - **Opinion:** Concurrence by Marrero - **Judges:** Marrero, Miner, Raggi - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Will v. Hallock, 546 U.S. 345 (2006). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8409227 ## How later opinions describe it (automated extraction) - stating in dicta that for “a judgment of dismissal based on the statute of limitations, laches, release, res judicata, or improper venue will justify the assertion of the judgment bar in a subsequent Bivens action” ## Opinion text MARRERO, United States District Judge, concurring. I concur in the holding of the majority opinion, but write separately to offer alternative grounds for affirmance that I find more compelling. I would affirm based on *156 the reasoning of the District Court that a proeedurally-based, rather than merits-based, ruling against a plaintiff on an FTCA claim does not trigger 28 U.S.C. § 2676’s bar against a subsequent Bivens action. The majority opinion states that a dismissal for lack of subject matter jurisdiction of a claim brought under the FTCA does not bar a later Bivens suit because such a claim “was not properly brought under ” the FTCA and therefore is a “nullity.” (See supra at 155, emphasis in original.) The majority also writes that many types of procedural dismissals of FTCA claims may validly bar subsequent Bivens claims. Both the majority’s reasoning and the alternative approach I propose read an implied term into § 2676 to give the statute reasonable meaning; we merely choose to rely upon different words. The majority’s construction finds, before the word “under,” an implicit requirement that an action be “properly brought.” Like the District Court in this case and in two other precedents cited below, the implied term under the alternative approach would interpret a requirement of “on the merits” after the word “judgment” in § 2676. As the majority opinion correctly notes, the principal purposes of § 2676 are to prevent double recovery by a plaintiff from the Government and individual employees, and to avoid duplicative litigation. A Bivens action brought after a dismissal for lack of subject matter jurisdiction against an FTCA plaintiff does not present such dangers, 1 but neither do most other procedurally-based dismissals of FTCA claims. The majority concludes that certain procedurally-based dismissals of FTCA claims may legitimately bar subsequent Bivens actions, presumably under § 2676, but that dismissals for lack of subject matter jurisdiction do not. But prohibiting a subsequent Bivens action because a plaintiffs earlier FTCA claim was dismissed by reason of, for instance, improper venue or laches, would work an unduly harsh result on that plaintiff. Moreover, to cite another example, one could argue that an FTCA claim brought after the expiration of the relevant statute of limitations would be likewise “improperly brought” under the FTCA and should not bar a subsequent Bivens suit otherwise timely filed. Significantly, there is no requirement that a Bivens plaintiff also bring an FTCA claim. Dismissing a Bivens suit because of a good-faith procedural error in a plaintiffs litigation of an earlier FTCA action— an action that the plaintiff need not have brought at all to maintain a Bivens claim— does not advance Congress’s goals in enacting § 2676 and unduly penalizes that plaintiff. To take an extreme example, if a plaintiff brings a Bivens action and an FTCA claim together in the same lawsuit and early in the litigation a court were to dismiss the FTCA claim on procedural grounds such as lack of proper venue, and not for lack of subject matter jurisdiction, the majority’s analysis here would apparently accept the application of § 2676 to that plaintiffs Bivens suit. Under the alternative reading I would apply, such a bar would not require blanket dismissals in every such situation. I have found only one other district court other than the District Court in this case that has apparently considered the precise question before this Court, and that court likewise ruled in two different opinions that the judgment bar in § 2676 does not block a Bivens suit when a prior FTCA claim was dismissed on procedural grounds. See Michalik v. Hermann, 2002 *157 WL 31844910 (E.D.La. Dec.16, 2002); Michalik v. Hermann, 2002 WL 1870054 (E.D.La. Aug.12, 2002). Thus, while I join the judgment of this Court affirming the decision of the District Court, I would do so for the reasons stated above and to be consistent with the rulings of the only two other courts that have squarely considered this issue. . At most, such a ruling imposes some additional litigation burdens on the Government. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8409227. Public record. Not legal advice.