Respondents Brief — Simmons v. Himmelreich, 136 S. Ct. 445 (2015) (No. 15-109)
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No. 15-109
IN THE
Supreme Court of the United States
JERMAINE SIMMONS, et al.,
Petitioners,
Vv.
WALTER J. HIMMELREICH,
Respondent.
On Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
BRIEF FOR RESPONDENT
CHRISTIAN G. VERGONIS
Counsel of Record
YAAKOV M. ROTH
DAVID T. RAIMER
JORDAN VON BOKERN
JONES DAY
51 Louisiana Ave., NW
Washington, DC 20001
(202) 879-3939
cvergonis@jonesday.com
Counsel for Respondent
i
QUESTION PRESENTED
The Federal Tort Claims Act (“FTCA”) provides
that, for certain enumerated categories of claims, the
Act’s “provisions”—including its jurisdictional grant
to the district courts, 28 U.S.C. § 1346(b)—‘shall not
apply.” 28 U.S.C. § 2680. One of those provisions
states that a “judgment” entered in an action “under
section 1346(b)” “bar[s]” an action against federal
employees by reason of the same subject matter. Id.
§ 2676.
If a tort claim against the Government is
dismissed for lack of subject-matter jurisdiction
because it falls within the scope of § 2680:
(i) does the dismissal trigger the § 2676
judgment bar, even though § 2676 does “not apply” to
claims encompassed by § 2680;
(ii) is the dismissed action “under section
1346(b),” even though that jurisdictional grant
likewise does “not apply” to claims encompassed by
§ 2680; and
(iii) is the dismissal a “judgment” that “bar[s]” an
action against the employee, even though the
dismissal otherwise lacks any claim-preclusive
effect?
il
TABLE OF CONTENTS
Page
QUESTION PRESENTED......................00scceeeeees visi i
TS Re ene enone ree ROE nT nT EE 1
A. Statutory Background ........................4. 2
B. Respondent’s Injuries And
Subsequent Efforts To Obtain
Sn ilcisiicisiatindiphinipaiaicsiitahethtealeinltiaidteaeniaeis 5
SUMMARY OF ARGUMENT ...................ccccceeeeeeeeeees 9
(ASTER I: Women oro ter OUR SEE ORE ee 11
I. UNDER THE PLAIN TEXT OF 28 U.S.C.
§ 2680, THE JUDGMENT BAR DOES “NoT
APPLY” TO CLAIMS EXEMPTED FROM THE
I ncn ia a aa ia al a ial ilies ll
A. The Judgment Bar Does “Not
Apply” To Claims Falling Within
§ 2680, And So Dismissals Under
That Section Do Not Trigger The
IE TIE dusititinalorintcnsiduinnainabpiiadsisiiends 12
B. Petitioners Offer No Coherent,
Plausible Alternative
Construction Of The Text................... 17
il
IL. SECTION 2676 ALSO MAKES CLEAR THAT
SECTION 2680 DISMISSALS Do NOT
TRIGGER THE JUDGMENT BAR ...............00000000- 30
A. Jurisdictional Dismissals Do Not
Count As Judgments In Actions
“Under” The FTCA’s
Jurisdictional Provision....................+. 31
B. Jurisdictional Dismissals Are Not
“Judgments” Under Section 2676....... 37
C. Section 2680 Dismissals Do Not
Trigger The Judgment Bar Since
They Rest On Defenses Personal
To The Government ...................cccee000 51
Ill. PETITIONERS’ EXPANSIVE READING OF
THE JUDGMENT BAR WOULD LEAD To
ETE re Oe 53
ee iii ccinecehnscicinnnicinevinindannasinniniiinesaninnies 55
iv
TABLE OF AUTHORITIES
Page(s)
CASES
Ali v. Fed. Bureau of Prisons,
ee Ck Be Ci ccevicinscnsesssetinmaenemeioeiaieaniial 16
Anderson v. Yungkau, 329 U.S. 482 (1947).............. 12
Annapolis Urban Renewal Auth. v. Interlink,
Inc., 405 A.2d 313 (Md. Ct. Spec. App. 1979)......49
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006).......... 32
Ardestani v. INS, 502 U.S. 129 (1991).......... Dicicniisnital 33
Atchley v. TVA, 69 F. Supp. 952 (N.D. Ala. 1947)....28
Barnhart v. Sigmon Coal Co.,
BS Ti Ge rc ciccctniecisinccnsnsetasiiiisnmiumidiial 13
Beaver v. Bridwell,
598 F. Supp. 90 (D. Md. 1984)............. eee ee 49
Beneficial Nat'l Bank v. Anderson,
ee Bb Gi icnscconssestnscinnnniencmnsniiiaiaiial 34, 35
Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics,
GD Tas ee Ci ccccnstcvntinssietatiininisiaiiiinas passim
Bolduc v. United States,
402 F.3d 5O (1st Cir. 2005) .........cccccccccccccccccscsseee 32
Brewer v. Sheco Constr. Co.,
327 F. Supp. 1017 (W.D. Ky. 1971)............... 25, 28
Burdette v. Carrier Corp.,
71 Cal. Rptr. 3d 185 (Ct. App. 2008) ...........e.0000+. 52
Carlson v. Green, 446 U.S. 14 (1980).........0.....00000.e 55
v
Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)....34
Cheney R.R. Co. v. R.R. Ret. Bd.,
50 F.3d 1071 (D.C. Cir. 1996) .................ccccccceceees 20
Chick Kam Choo v. Exxon Corp.,
CE 45, 46
Collins v. United States,
564 F.3d 833 (7th Cir. 2009).............cccccccccccsceeeees 32
Conn. Nat'l Bank v. Germain,
re 13
Dalehite v. United States,
aN 2, 3, 15, 32
Davric Me. Corp. v. U.S. Postal Serv.,
Ta 27
De Scala v. Panama Canal Co.,
222 F. Supp. 931 (S.D.N.Y. 1963)........................ 26
FDA v. Brown & Williamson Tobacco Corp.,
ET 33, 39
FDIC v. Meyer, 510 U.S. 471 (1994) ................. passim
Five Flags Pipe Line Co. v. Dep't of Transp.,
854 F.2d 1438 (D.C. Cir. 1988) ..............ccccc cece eee 20
Flores v. zdinburg Consol. Indep. Sch. Dist.,
WN IS I ccccccsnescscssscescccsccccscees 49
Fourco Glass Co. v. Transmirra Prods. Corp.,
ETE 20
Gardner v. Panama R.R. Co.,
a 25, 26
Gilmer v. Porterfield, 212 S.E.2d 842 (Ga. 1975).....42
Griffin v. Bozeman, 173 So. 857 (Ala. 1937)............. 52
vi
Gutierrez de Martinez v. Lamagno,
I 2, 54
Hallock v. Bonner, 387 F.3d 147 (2d Cir. 2004) ....... 33
Hartford Underwriters Ins. Co. v. Union
Planters Bank, N.A., 530 U.S. 1 (2000)............... 29
Herring v. Tex. Dep't of Corrs.,
500 S.W.2d 718 (Tex. Civ. App. 1973)................. 49
Himmelreich v. United States,
No. 4:10-cv-307 (N.D. Ohio Feb. 11, 2010)............ 6
House v. Mullen, 89 U.S. 42 (1875).............cccccccceeeeee 16
Hughes v. United States, 71 U.S. 232 (1866)............ 44
Hui v. Castaneda, 559 U.S. 799 (2010).................00000- 4
Jones v. Valisi, 18 A.2d 179 (Vt. 1941)...........0.00000... 42
Kontrick v. Ryan, 540 U.S. 443 (2004)..................0. 32
Kutzik v. Young, 730 F.2d 149 (4th Cir. 1984)......... 49
Lamie v. United States Tr., 540 U.S. 526 (2004)...... 17
Levin v. United States, 133 S. Ct. 1224 (2013)...14, 29
Lober v. Moore, 417 F.2d 714 (D.C. Cir. 1969)......... 52
Lockhart v. United States, 546 U.S. 142 (2005)....... 22
Loeffler v. Frank, 486 U.S. 549 (1988)..........24, 27, 36
Mayor v. Cooper, 73 U.S. 247 (1867) ...................0000 44
McVeigh v. McGurren,
Sipe | fl 6 0 42
Migra v. Warren City Sch. Dist. Bd. of Ed.,
I, 50
Montana v. United States, 440 U.S. 147 (1979)....... 33
vil
Myers’ Admn'x v. Brown,
61 S.W.2d 1052 (Ky. Ct. App. 1933).................... 41
North Carolina ex rel. Cooper v. TVA,
615 F.3d 344 (4th Cir. 2008)..............ccccccessecccreees 26
Okla. Gas & Elec. Co. v. Okla. Packing Co.,
I TC al 34, 35
Queen v. TVA, 689 F.2d 80 (6th Cir. 1982)......... 26, 28
Reves v. Ernst & Young, 494 U.S. 56 (1990) ............ 22
Roadway Express, Inc. v. McBroom,
6 S.E.2d 460 (Ga. Ct. App. 1939)....................000. 41
Robinson v. Shell Oil Co., 519 U.S. 337 (1997)........ 13
Rose v. Town of Harwich,
Py er GD, I sencecinnetencnsicnintccnmesesciiens 48
Russello v. United States, 464 U.S. 16 (1983) .......... 35
Semtek Int'l Inc. v. Lockheed Martin Corp.,
Be Ce Mr TT nininiansetitnnandniniiininthanmnine 47, 48
Stephan v. United States, 319 U.S. 423 (1943) ........ 19
Sterrett v. Milk River Prod. Credit Ass'n,
647 F. Supp. 299 (D. Mont. 1986)........................ 26
Swift v. McPherson, 232 U.S. 51 (1914) ................... 44
Taylor v. Sturgell, 553 U.S. 880 (2008) .................... 40
Tighe v. Skillings, 9 N.E.2d 532 (Mass. 1937) ......... 52
Tooke v. Miles City Prod. Credit Ass’n,
, } 2 fi: ft — % —- ES 26
United States v. Gilman,
fC 2, 4, 39, 54
United States v. Muniz, 374 U.S. 150 (1963) ............. 3
viii
United States v. Ron Pair Enters., Inc.,
ee SP iiccnssenasomsnnnitantsniniinentininies 13, 14
United States v. Smith, 499 U.S. 160 (1991).... passim
United States v. Welden, 377 U.S. 95 (1964)............ 20
United States v. Wong, 135 S. Ct. 1625 (2015)......... 32
Wayne v. TVA, 730 F.2d 392 (5th Cir. 1984)............ 26
Westfall v. Erwin, 484 U.S. 292 (1988)..................... 14
Whitehurst v. Elks, 192 S.E. 850 (N.C. 1937)........... 52
Will v. Hallock, 546 U.S. 345 (2006)............. 13, 14, 40
Williams v. United States,
PG OA 49
Wolf v. Kenyon, 273 N.Y.S. 170 (App. Div. 1934).....42
Yates v. United States, 135 S. Ct. 1074 (2015)......... 40
STATUTES AND RULES
IIE Ut TT nt ninctnnnsceiiniinneniiahbanianebeniaiinmasiontii 34
SUP ERIN TIT TIT iincinirecnitinieniincpannndinpneunumbicidientisheedeiiatiiiis 7
an aT a i cesinssnnhaceainintinialiisnideapaienacidinediliddadaininal 45
ee I sits iiniciniinsheeaniianncinesieniabaniiainieiiita 28
Se, ae ee I Ce i rticttcicesinnscensicntnnmnietnnnins 21
Ch. 340, 63 Stat. 444 (1949).................cccccrssrssssessesees 25
Federal Employees Liability Reform
and Tort Compensation Act, Pub. L.
No. 100-694, 102 Stat. 4563 (1988) ............... 19, 23
SS I i cnniincedainiabantenteinasiiiimenis passim
2B U.S.C. § 2679(d) ..........-ccececcescececcececsecseeeees 21, 22
1x
Federal Tort Claims Act, ch. 753, tit. IV,
60 Stat. 812, 842-47 (1946).................. 2, 18, 28, 29
Be es Oe SED ccccscscscensadutetnmuliccesnmennsaten passim
SID TIT ioscnctieceeaippbinionenssiainnnieniidti passim
TART enMRC NEN 2,12
ESERIES ccna 2, 12, 39
TTT ATT NER I 2,12
ESTAS RER RR erene remeron unre passim
acne iniceitciiatindialeiaidicntsinitidiinmniaiate 2,12
Ey MII sitinincciiiniichitintiaiinnicsiammeianedens passim
kane RTE passim
Prison Litigation Reform Act,
8 ES ene eer eres eee 7
I al 6, 32
es Mn ts Silt cscsicieiertaitelelieaapalaienimesceiihesiiabid 37
LEGISLATIVE MATERIALS
92 Cong. Rec. 6563 (1946)................ecccccssscccecsssescceees 25
Ee, GCS, Tete Came, CRDED) ...ccccccccccscccccccccccccccccess 43
H.R. Rep. No. 79-1287 (1945)..............cccccceeseeecsseeeees 24
H.R. Rep. No. 81-830 (1949).................ccccccceessesseeeees 25
S. Rep. No. 77-1196 (1942) ...............cccccsecseeesseeeees 39, 43
S. Rep. No. 79-1400 (1946)............cccccccccccscescesssrsreeees 24
Tort Claims: Hearing on H.R. 5373 and
H.R. 6463 Before the H. Comm. on the
Judiciary, 77th Cong. 9 (1942).......... 15, 27, 29, 43
OTHER AUTHORITIES
Black’s Law Dictionary (3d ed. 1933) .................00006 37
Abraham Clark Freeman, A Treatise on
the Law of Judgments (Edward W.
Tuttle ed., Sth ed. 1925)...................ccccccccsccssccscees 38
Lester S. Jayson & Robert C. Longstreth,
Handling Federal Tort Claims (2015)........... 33, 54
Note, The Federal Tort Claims Act,
56 Yale LJ. 534 (1947) ...........ccccceeececeeeeeceeeees 33, 44
Reginald Parker, The King Does No Wrong—
Liability for Misadministration,
5 Vand. L. Rev. 167 (1952).............ccccsssssecccrereeeees 54
James E. Pfander & Neil Aggarwal,
Bivens, the Judgment Bar, and the Perils
of Dynamic Textualism,
8 U. St. Thomas L.J. 417 (2011)............ccc ee eeeeee ee 43
Restatement of Judgments (1942)............ 41, 44, 51, 53
Restatement (Second) of Judgments (1982)........ 44, 52
Harry Street, Tort Liability of the State:
The Federal Tort Claims Act and the Crown
Proceedings Act, 47 Mich. L. Rev. 341 (1949) .....43
STATEMENT
Petitioners are officers at a federal prison where
Respondent Walter Himmelreich served part of a
sentence for production of child pornography. He
filed this action against them (and others) under
Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), alleging
that they violated his Eighth Amendment rights by
allowing another inmate, who threatened to “smash”
a pedophile if released from segregated confinement,
to nonetheless return to the general prison
population. Just hours later, the inmate kept his
word and violently assaulted Himmelreich, causing
serious injuries. In an earlier appeal, a unanimous
Sixth Circuit panel held that Himmelreich stated a
viable Bivens claim based on Petitioners’ deliberately
indifferent failure to protect him from a “substantial
risk of serious harm.” Pet.App.29a-31a.
Petitioners now contend, however, that this
action is precluded as a threshold matter, based on
the dismissal for lack of subject-matter jurisdiction of
a negligence claim Himmelreich had previously filed
against the United States. Urging a dramatically
broader construction of the FTCA’s judgment bar
than any Court of Appeals has adopted in the
seventy years since Congress enacted it, Petitioners
argue that beca™se a court found that Himmelreich
could not sue the Government for this harm, he is
also precluded from suing the responsible employees
personally. The Sixth Circuit correctly rejected that
expansive view, which cannot be squared with either
the statutory text or its purpose.
2
A. Statutory Background.
Before Congress enacted the FTCA, a person
injured by a federal employee could either sue that
employee personally under state tort law, or pursue
a private congressional bill for compensation. But
personal-capacity tort suits represented “a very real
attack upon the morale of the services.” United
States v. Gilman, 347 U.S. 507, 511 n.2 (1954)
(quoting legislative history). And private bills were a
distraction for Congress and “notoriously clumsy.”
Dalehite v. United States, 346 U.S. 15, 24-25 (1953).
Congress therefore enacted the FTCA—Title IV
of the Legislative Reorganization Act of 1946—to
provide a new remedy for those injured by employees
acting within the scope of federal employment.
Ch. 753, tit. IV, 60 Stat. 812, 842-47 (codified as
amended at 28 U.S.C. §§ 1346(b), 2671-80). The Act
created an “easy and simple” remedy against the
United States, which conditionally agreed to subject
itself to state tort law and “assume the obligation to
pay damages for the misfeasance of [its] employees.”
Dalehite, 346 U.S. at 24; see also Gutierrez de
Martinez v. Lamagno, 515 U.S. 417, 420 (1995)
(“Generally, [FTCA] cases unfold much as cases do
against other employers who concede respondeat
superior liability.”). The Act waives sovereign
immunity, subject to enumerated exceptions, where
a private person would face tort liability in the state
where the wrongful act occurred. This case turns on
the relationships among three FTCA provisions.
First, the statute’s jurisdictional provision,
28 U.S.C. § 1346(b), simultaneously functions as the
cause of action and waiver of sovereign immunity. It
confers subject-matter jurisdiction on district courts,
3
“[s]ubject to” the FTCA’s other provisions, over
claims:
for injury or loss of property, or personal
injury or death caused by the negligent or
wrongful act or omission of any employee of
the Government while acting within the
scope of his office or employment, 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 occurred.
Second, the Act includes a provision setting forth
a series of claims that are not cognizable. “Congress
qualified [§ 1346(b)’s] general waiver of immunity in
28 U.S.C. § 2680 by excepting from the Act claims
arising from certain government activity.” United
States v. Muniz, 374 U.S. 150, 153 (1963). Section
2680 renders the FTCA, as a whole, inapplicable to
certain categories of conduct; in the Code’s language,
the “provisions of this chapter and section 1346(b) of
this title shall not apply to” a host of specified claims.
The exceptions include claims based on exercise of a
“discretionary function,” 28 U.S.C. § 2680(a); claims
arising from “negligent transmission” of mail, id.
§ 2680(b); claims alleging certain intentional torts,
id. § 2680(h); and ten other categories of claims.
Because these claims are excepted from, among other
things, the Act’s waiver of sovereign immunity and
its jurisdictional grant in § 1346(b), courts have
generally agreed with the Government’s long-held
position that the § 2680 carve-outs are jurisdictional
in nature. See Dalehite, 346 U.S. at 24; Pet.Br.4-5 &
n.1. Nothing in § 2680, however, precludes assertion
of these claims against federal employees personally.
4
Third, the FTCA contains a so-called “judgment
bar,” which is the provision directly at issue here.
The judgment bar is codified at 28 U.S.C. § 2676; it
provides that “[t]he judgment in an action under
section 1346(b) of this title shall constitute a
complete bar to any action by the claimant, by reason
of the same subject matter, against the employee of
the government whose act or omission gave rise to
the claim.” In an early decision, this Court explained
that this provision “makes a judgment against the
United States a bar to action against the employee,”
thereby preventing any double recovery (i.e., from
the Government and the individual employee).
Gilman, 347 U.S. at 511 n.2 (citing legislative history
that, once “the Government has satisfied a claim ...
that should, in our judgment, be the end of it”).
In addition to these three original components of
the FTCA, a more recent statutory amendment bears
mention. In 1988, Congress enacted the Federal
Employees Liability Reform and Tort Compensation
Act, commonly known as the Westfall Act, which
among other things makes the FTCA the “exclusive”
remedy for any injury arising from “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. § 2679(b)(1). Thus,
claims against federal employees in their individual
capacities are now expressly “precluded,” even
absent any prior FTCA judgment. Jd. However,
Congress carved out constitutional claims, i.e., those
under Bivens, from that exclusive-remedy provision.
Id. § 2679(b)(2)(A); Hui v. Castaneda, 559 U.S. 799,
807 (2010) (noting this exception).
5
B. Respondent’s Injuries And Subsequent
Efforts To Obtain Relief.
1. At the time of the events at issue here,
Respondent Himmelreich was incarcerated in federal
prison in Ohio, serving a sentence for production of
child pornography. JA.105. On October 16, 2008,
another inmate, who was then being housed in the
prison’s Special Housing Unit as the result of a
disciplinary violation, told prison officials that he
was “not able to live with pedophiles” and that if he
were released back to the general compound, he “will
smash a pedophile.” JA.119. Four days later, prison
officials nonetheless released that inmate back to the
general prison population. Jd. As promised, just
hours later, this inmate approached Himmelreich,
“punched him in the face and then kicked him
numerous times.” Jd. Himmelreich suffered serious
injuries as a result of this assault and battery.
2. In February 2009, Himmelreich filed an
administrative tort claim with the Federal Bureau of
Prisons, recounting how he was “severely beaten” by
the other inmate, suffering “internal bruising,”
“external injuries,” “permanent ringing in the ears,”
persistent headaches, and “a pinched nerve.” JA.98.
In August 2009, the Bureau’s regional counsel denied
the claim, on the basis that there was “no evidence to
suggest your assailant ever told staff he was going to
assault you or that staff had any prior knowledge
you were going to be assaulted.” JA.93. That was
false. As the Government’s declarant later admitted,
the assailant had told prison officials of his intent to
“smash” a pedophile just days before he carried out
that threat. JA.106, JA.119.
6
Following the Bureau’s rejection, Himmelreich
filed, in February 2010, a one-sentence complaint
against the United States, styled as an “appeal” of
the denial of his “administrative tort claim.” JA.91.
The civil cover sheet identified the case as a general
“civil rights” matter and did not cite the FTCA. Dkt.
1-2, Himmelreich v. United States, No. 4:10-cv-307
(N.D. Ohio Feb. 11, 2010).
The Government moved to dismiss under Federal
Rule of Civil Procedure 12(b)(1), arguing that the
court “lack{ed] subject matter jurisdiction ..., because
Plaintiff's claims fall within the discretionary
function exception to the [FTCA],” 28 U.S.C.
§ 2680(a). JA.102. Its brief emphasized that,
“fb]ecause Congress has not waived the sovereign
immunity of the United States for claims that fall
within the discretionary function exception, federal
courts lack subject matter jurisdiction over such
claims.” JA.108; see also JA.105 (arguing that court
“lacks subject matter jurisdiction”); JA.115 (same).
In the Government’s view, Himmelreich’s claim fell
within the FTCA’s discretionary-function exception
on the theory that prison officials exercise discretion
and judgment when they house and protect inmates.
On November 18, 2010, the district court granted
the motion to dismiss, agreeing that it “lacks subject
matter jurisdiction over acts falling within the
discretionary function exception” to the FTCA, and
concluding that Himmelreich’s claim fell within that
statutory carve-out. Pet.App.47a, 49a-53a, 55a.
3. In October 2010—after the Government
moved to dismiss Himmelreich’s initial action, but
before the court granted that motion—Himmelreich
filed a separate, second action in the same court.
7
This second complaint was styled as a “complaint
under Bivens”; it alleged, in relevant part, that the
named defendants, including Petitioners in their
personal capacities, knew about the intended assault
and had violated Himmelreich’s Eighth Amendment
rights by failing to protect him. JA.41.
The district court initially dismissed this action
sua sponte under 28 U.S.C. § 1915(e). Pet.App.34a,
38a. As to the Eighth Amendment claim, the court
reasoned that Himmelreich had not alleged that the
officials “acted with a sufficiently culpable state of
mind.” Id. 4la-44a. On appeal, however, the Sixth
Circuit vacated and remanded in relevant part. IZd.
23a-24a. It explained that Himmelreich alleged
sufficient facts to show that the officers were aware
of a “substantial risk” to Himmelreich or to a “class
of prisoners” including him, and had “disregarded
that risk by releasing [the other inmate] back into
the general population.” Jd. 30a-31a.
On remand, however, the district court again
dismissed the Eighth Amendment claim, this tine on
summary judgment. Pet.App.13a. The court first
found Himmelreich’s claims barred by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a), for
failure to exhaust administrative remedies within
the Bureau of Prisons. Pet.App.16a-20a. The court
also held that the FTCA judgment bar precluded the
Eighth Amendment claim. Because that claim arose
from the same assault and failure to protect as
Himmelreich’s earlier tort suit against the United
States, which was dismissed “because the actions in
controversy fell under the discretionary|-function]
exception to the FTCA,” the court concluded that
§ 2676 “bars any further action.” Pet.App.21a.
8
4. Himmelreich appealed, JA.32, and the Sixth
Circuit again vacated and remanded. Pet.App.1la-2a.
As to exhaustion, the panel invoked the
exception for when an official’s threats to retaliate
make internal remedies “functionally unavailable.”
Pet.App.3a-4a. Because Himmelreich alleged that
one defendant had placed him in administrative
detentior. for filing his tort claim and threatened to
transfer him if he continued to file grievances, a jury
could fairly find that Himmelreich was “improperly
prevented” from exhausting. Pet.App.4a.
Turning to the FTCA judgment bar, the panel
reasoned that “dismissal for lack of subject-matter
jurisdiction does not trigger” the bar. Pet.App.6a.
“Put bluntly,” the panel said, if a court lacks subject-
matter jurisdiction, it cannot enter judgment “on the
merits” and must dismiss the action; that is not a
‘“Sudgment” within the meaning of § 2676. /d.
(quoting 10A Charles Alan Wright et al., Federal
Practice & Procedure § 3713 (3d ed. 1998)). And, as
neither of the parties disputed, “courts lack subject-
matter jurisdiction over an FTCA claim when the
discretionary-function exception applies, as it did
here.” Jd. 6a-7a. Hence the earlier dismissal of
Himmelreich’s tort claim against the Government
did not trigger the judgment bar. Jd.
5. Petitioners sought rehearing en banc, but no
judge called for a response. Pet.App.1 la.
9
SUMMARY OF ARGUMENT
Section 2676 requires injured plaintiffs to choose
a defendant: the Government in respondeat superior,
or the responsible employee personally. At the end
of the day, there is only one injury, and there should
be only one full and fair opportunity to seek redress.
Accordingly, if the plaintiff litigates to “judgment” an
action against the United States “under” the FTCA,
that should ordinarily be the end of the matter.
The question here, however, is what happens if
there is no remedy against the United States, because
Congress has carved a category of claim out of the
FTCA altogether, through the exceptions that § 2680
enumerates. The FTCA’s text, context, and purpose
all confirm that, under those circumstances, there is
no bar to proceeding against the employee instead.
To the contrary, that is the only legally viable option;
precluding it would strip plaintiffs of any genuine
opportunity to seek relief under any source of law.
I. First, whatever its scope, the judgment bar
simply does not apply here. The plain text of § 2680
provides that all of the FTCA’s other “provisions” —
including its judgment bar—‘“shall not apply” to the
set of claims carved out from the Act’s sphere.
Where, as here, a claim is dismissed on the basis of
that statutory carve-out, § 2676 is thus inapplicable.
Petitioners offer no coherent reading of the text that
avoids this conclusion. Instead, they insist that this
Court has previously departed from § 2680's plain
meaning and that Congress could not have meant
what it said. Neither is true. This Court must
enforce Congress’s clear direction that the judgment
bar “shall not apply” to the claims wholly exempted
from the Act.
10
II. By its own terms, too, the judgment bar is
inapplicable. It is triggered only by a “judgment” in
a suit “under section 1346(b).” But § 1346(b) does
“not apply” to the claims enumerated in § 2680, and
courts lack jurisdiction under § 1346(b) to adjudicate
them. This means that the plaintiffs putative FTCA
action was not “under” § 1346(b) in the first place.
Moreover, a dismissal for lack of jurisdiction is not a
“judgment” within the meaning of § 2676, as the
bar’s context amply confirms. The judgment bar
supplements background res judicata principles,
which protected the United States if a plaintiff sued
its agents first but, in 1946, left servants exposed if a
suit against their masters failed, even on the merits.
Congress wrote the judgment bar to adopt a national
rule allowing employees to equally benefit from the
preclusive force of FTCA judgments. Given that
context, “judgment” cannot include a jurisdictional
dismissal, such as under § 2680, which carries no res
judicata effect in the first place. In short, when a
claim against the Government is dismissed because
the court has no power to adjudicate it, that does not
somehow shield the responsible federal employee.
III. Apart from ignoring the statute’s text and
its historical context and purpose, Petitioners’
radically expansive understanding of the judgment
bar would lead to absurd results—blocking Bivens
suits even based on technical pleading defects such
as filing in the wrong venue; encouraging personal-
capacity suits; and arbitrarily depriving plaintiffs of
relief to which they are legally, even constitutionally,
entitled. For good reason, no Court of Appeals has
adopted this unreasonably broad interpretation.
11
ARGUMENT
The FTCA’s judgment bar is a sensible provision,
serving intuitive ends. When plaintiffs have a choice
of defendant, the bar prevents duplicative recoveries
(if they sue the Government and win) and forbids
second bites at the apple (if they sue the Government
but lose on the merits). But the radically expansive
construction of the bar pressed by Petitioners—that
it is triggered by any dismissal, on any basis, of any
tort claim against the Government, even if no such
claim is even cognizable—is anything but sensible,
and would yield absurd results. It cannot be squared
with the statutory text or its purpose. That is why,
tellingly, not one Court of Appeals has adopted that
construction in the nearly seventy years since the
law was enacted. This Court should not do so now.
I. UNDER THE PLAIN TEXT OF 28 U.S.C. § 2680,
THE JUDGMENT BAR DOES “Not APPLY” To
CLAIMS EXEMPTED FROM THE ACT.
Whatever the scope of the judgment bar itself,
the provision is wholly inapplicable at the threshold.
The FTCA states that its provisions “shall not apply”
to the claims enumerated in § 2680. Those claims
are thus carved out of the Act entirely. As such, if a
claim asserted against the Government falls within a
§ 2680 exception, there is no waiver of immunity, no
jurisdiction, no cause of action, no liability, and no
relief—but also no bar to a non-FTCA claim, such as
a constitutionally based Bivens suit against the
employee. That plain reading makes good sense: If a
claim is categorically carved out of the FTCA, injured
parties should not be barred from pursuing other
available forms of redress. And Petitioners have no
way around § 2680's “shall not apply” language.
12
A. The Judgment Bar Does “Not Apply” To
Claims Falling Within § 2680, And So
Dismissals Under That Section Do Not
Trigger The Judgment Bar.
There is no warrant, in this case, to explore the
outer bounds of § 2676—the judgment bar itself—
because another FTCA provision expressly provides
that the judgment bar has no application here.
1. Specifically, § 2680 is entitled: “Exceptions.”
Its text provides that “(t]he provisions of this chapter
and section 1346(b) of this title shall not apply to”
over a dozen enumerated types of claims that are
exempt altogether from operation of the Act. 28
U.S.C. § 2680 (emphasis added). The “chapter” to
which § 2680 refers is chapter 171 of Title 28 of the
Code. That chapter spans from § 2671 to § 2680—
and includes § 2676, the judgment bar.
Thus, under the plain text of § 2680, these FTCA
provisions “shall not apply to” any claim within the
statutory carve-outs. And “shall” reflects “language
of command.” Anderson v. Yungkau, 329 U.S. 482,
485 (1947). Various consequences follow from this.
Section 1346(b) does “not apply” to these claims, and
so there is no subject-matter jurisdiction over them.
Section 2672 does “not apply” to them, and so federal
agencies are not authorized to compromise or settle
them. Section 2673 does “not apply,” and so claims
falling within the exceptions need not be reported to
Congress. Section 2674 does “not apply,” and so the
United States bears no tort liability for these claims.
Section 2675 does “not apply,” and so there is no duty
to exhaust administrative remedies. Section 2678
does “not apply,” and so neither the 25% maximum
contingency fee nor its criminal penalty applies.
13
As relevant here, the crucial proposition is that
§ 2676 does “not apply” to § 2680 claims either. That
means that a claim falling within one of the § 2680
exceptions does not trigger the judgment bar. That
is, dismissal of such a claim (because it falls outside
the scope of the FTCA) does not create any bar to a
subsequent suit against the responsible employee,
because the provision that generally imposes such a
bar does “not apply” to the claim at issue.
The last time the scope of § 2676 was presented
to this Court, Justices raised this point sua sponte at
the oral argument. See Tr. of Oral Arg. at 11, Will v.
Hallock, 546 U.S. 345 (2006) (No. 04-1332) (“Justice
Stevens: ... [T]he introductory language of 2680 is
that provisions of this chapter shall not apply to such
cases. And is it not true that 2676 is in this chapter,
and does it not, therefore, follow that 2676 does not
apply to this case?”). As Justice Breyer observed,
“the language does seem to say it.” Id. at 15.
Indeed it does, directly and plainly. And as this
Court has long emphasized, “time and again,” courts
“must presume that a legislature says in a statute
what it means and means in a statute what it says
there.” Conn. Natl Bank v. Germain, 503 U.S. 249,
253-54 (1992). Thus, if statutory language has “a
plain and unambiguous meaning with regard to the
particular dispute in the case,” Robinson v. Shell Oil
Co., 519 U.S. 337, 340 (1997), the judicial inquiry
“ceases,” Barnhart v. Sigmon Coal Co., 534 U.S. 438,
450 (2002). “The plain meaning of legislation should
be conclusive,” certainly absent a compelling reason
to believe that Congress intended something other
than what it said. United States v. Ron Pair Enters.,
Inc., 489 U.S. 235, 242 (1989).
14
This Court recently applied those principles to
identical “shall not apply” language in a related
provision. See Levin v. United States, 133 S. Ct. 1224
(2013). That provision states that one of the § 2680
exceptions “shall not apply” to medical malpractice
claims against certain federal personnel. Jd. at 1227.
This Court applied that language as _ written,
allowing malpractice claims that would otherwise be
barred by § 2680; it called the question “not difficult”
in light of the law’s “plain reading.” Jd. at 1232 &
n.6. The analysis here is equally simple.
2. The plain text of § 2680 is “coherent and
consistent” with the “statutory scheme.” Ron Pair,
489 U.S. at 240, 242. If a claim exempted by § 2680
cannot be pursued against the Government, a
plaintiff who nonetheless futilely asserts that claim
against the Government should not be precluded
from suing the proper defendant instead.
As this Court explained in Will v. Hallock, the
judgment bar does not “reflec[t] a policy that [federal
employees] should be scot free of any liability.” 546
U.S. 345, 354 (2006). Rather, it is motivated by the
same policy concern as res judicata—viz., “avoiding
duplicative litigation.” Jd. The FTCA subjected the
United States to state tort liability, but did not
eliminate any extant right to sue federal employees
on the same theories. See Westfall v. Erwin, 484
U.S. 292 (1988).! The Act essentially gave plaintiffs
1! The Westfall Act later did eliminate that right, which is
why the judgment bar today precludes only Bivens suits. But
Bivens had not yet been decided when the FTCA was enacted;
Congress was focused on state-law tort suits. See Pet.Br.6.
15
a choice of defendant. But in doing so, it created a
risk that plaintiffs would seek to recover twice, or
take two bites at the apple. Congress addressed
those risks in the judgment bar—and in the Act’s
parallel release bar, 28 U.S.C. § 2672, which bars
claims by plaintiffs who accept federal settlements.
That core concern about “duplicative litigation,”
however, exists only if duplicative remedies exist. A
plaintiff hurt in a car accident with a government
driver, for example—the scenario “[u]ppermost in the
collective mind of Congress,” Dalehite, 346 U.S. at
28—should not recover twice, once from the United
States and then again from the driver personally.
See Tort Claims: Hearing on H.R. 5373 and H.R.
6463 Before the H. Comm. on the Judiciary, 77th
Cong. 9 (1942) (statement of Francis Shea, Assistant
Att’y Gen.) [hereinafter 1942 Hearing] (“If the
Government has satisfied a claim which is made on
account of a collision between a truck carrying mail
and a private car, that should, in our judgment, be
the end of it. After the claimant has obtained
satisfaction of his claim from the Government, ... he
should not be able to turn around and sue the driver
of the truck.”). Nor, if that plaintiff loses his FTCA
suit because, for example, the court finds that the
driver was not negligent, should he be able to try an
identical tort theory against the driver individually.
Those are the classic objectives of the judgment bar.?
2One might have expected res judicata rules to address
these problems. But as detailed below, the Restatement view at
the time of the FTCA’s enactment was that a servant could not
invoke res judicata based on a judgment in favor of his master.
The judgment bar filled that hole. See infra Part I1.B.2.
16
Those concerns are not implicated when there
are no duplicative causes of action. When a claim
falls within the scope of § 2680, it is “carve[d] out”
from the FTCA entirely. Ali v. Fed. Bureau of
Prisons, 552 U.S. 214, 215 (2008). There is no
cognizable cause of action against the Government.
Thus, unlike the quintessential case of the plaintiff
whose FTCA action fails because he cannot establish
negligence, a § 2680 dismissal says nothing about the
viability of any cause of action against the employee.
The court is instead advising the plaintiff that he
sued the wrong party. In that context, § 2680's “shall
not apply” language sensibly withholds application of
the judgment bar, allowing the plaintiff to proceed
against the correct defendant. Such a plaintiff is not
taking a second bite at the apple; he is trying an
orange after being told that apples are out of season.
Cf. House v. Mullen, 89 U.S. 42, 46 (1875) (if “bill is
dismissed for misjoinder of parties,” plaintiff “should
be at liberty to bring another bill, with proper
parties, in regard to the subject-matter of the first”).
Put another way, a § 2680 dismissal implies only
that no remedy exists against the United States
under the FTCA. Far from condemning a tort claim
against the responsible employee, that ruling is
irrelevant to it. That lack of commonality—and
absence of true duplication between alternative
claims or defendants—was good reason for Congress
to except § 2680 claims from the judgment bar.
Against all this, Petitioners argue that applying
the judgment bar would advance federal interests by
avoiding litigation costs. Pet.Br.23-28. Maybe so,
but given the plain text of § 2680, Petitioners must
show not that applying the judgment bar would be
17
rational, but that exempting § 2680 dismissals from
the judgment bar would be irrational, such that the
plain text so providing should be ignored. See Lamie
vu. United States Tr., 540 U.S. 526, 534 (2004) (plain
text must be enforced “where the disposition
required by the text is not absurd”). Petitioners do
not come close to making that demanding showing.
3. Here, of course, Himmelreich’s claim falls
within an exception under § 2680, and indeed his
action against the United States was dismissed on
that very basis. Pet.App.48a-53a. Accordingly, the
judgment bar does “not apply” to that claim, and the
dismissal of that claim cannot trigger the bar.
B. Petitioners Offer No Coherent, Plausible
Alternative Construction Of The Text.
Petitioners offer no plausible interpretation of
§ 2680’s “shall not apply” language that would
preserve application of the judgment bar to claims
like Respondent’s. Instead, Petitioners argue that
this language cannot mean what it says. Their
arguments fail. Nothing in this Court’s prior
decisions or elsewhere in the FTCA undermines
§ 2680’s express direction that the Act’s provisions,
including the judgment bar, “shall not apply” to the
exempted claims.
1. Petitioners first cite United States v. Smith,
499 U.S. 160 (1991). Smith never addressed the
“shall not apply” language of § 2680, but Petitioners
argue that if § 2680 means what it says, that case’s
holding was wrong. Pet.Br.48-50. Their argument
goes as follows: Under a provisior. enacted by the
Westfall Act, the FTCA is the “exclusive” remedy
“against the employee” for claims arising under state
18
law, and any other such action is “precluded.” 28
U.S.C. § 2679(b)(1). Smith held that this provision
bars state-law tort suits against the employee even
for claims falling within § 2680. 499 U.S. at 166-67.
Petitioners argue that this cannot be true if § 2680
really renders inapplicable all other provisions of the
FTCA. If § 2680’s “shall not apply” language means
what it says, they argue, then the exclusive-remedy
provision would not apply either, and state tort
remedies would remain available for those claims—
contrary to Smith’s holding.
The supposed conflict does not exist. Petitioners’
argument ignores crucial historical and textual
distinctions between § 2676 (the judgment bar) and
§ 2679(b) (the exclusive-remedy provision at issue in
Smith). Those distinctions establish that there is no
conflict between reading § 2679(b) to preclude all
state-law tort claims against federal employees—
including, as another provision of the Westfall Act
expressly directs, those arising from conduct within
§ 2680’s “exceptions’—while at the same time
recognizing that § 2676 does “not apply” to Bivens
claims arising from that conduct.
a. First, the Westfall Act and its
exclusive-remedy provision were not enacted until
forty years after § 2680, which originally stated that
the provisions “of this title” “shall not apply” to the
enumerated claims. Ch. 753, § 421, 60 Stat. 812, 845
(emphasis added). As Petitioners concede, “title”
referred to Title IV of the Legislative Reorganization
Act of 1946—the FTCA as originally enacted.
Pet.Br.51; see also ch. 753, § 401, 60 Stat. at 842
(“This title may be cited as the ‘Federal Tort Claims
Act’.”) That title included the judgment bar. Ch.
19
753, § 410(b), 60 Stat. at 844. But it did not include
the exclusive-remedy provision—which was enacted
decades later as part of an entirely different law, see
Pub. L. No. 100-694, § 5, 102 Stat. 4563, 4564 (1988).
Accordingly, because the judgment bar was part
of the original “title” that Congress directed in 1946
“shall not apply” to the exempt claims, that bar does
not apply to claims falling within § 2680's scope. But
since the § 2679(b) exclusive-remedy provision was
not among the original provisions of the “title,” that
provision does apply to § 2680 claims. There is thus
no conflict between Smith and the plain text of
§ 2680, as originally enacted.
It is true that, when the FTCA was later codified,
some of its provisions were distributed to 28 U.S.C.
§ 1346(b), while others were sent to chapter 171 of
Title 28. In the codified version of the Act, § 2680's
language was therefore altered, to provide that the
“provisions of this chapter and section 1346(b) of this
title” shall not apply to the enumerated claims. And
the Westfall Act’s exclusive-remedy provision was
later added to “this chapter,” chapter 171 of Title 28.
It is only by looking to that codified version of § 2680
that one encounters the supposed inconsistency
Petitioners identify. Pet.Br.50.
This is hardly the first time that statutory cross-
references have been muddled by later codification.
Courts, however, have consistently adhered to the
venerable rule that “the Code cannot prevail over the
Statutes at Large when the two are inconsistent.”
Stephan v. United States, 319 U.S. 423, 426 (1943)
(per curiam). In one case, for example, Congress
enacted a statute governing railroads “subject to part
I of the Interstate Commerce Act”; the Code
20
translated that reference as those “subject to
subchapter I of chapter 105 of title 49,” based on the
then-placement of the Interstate Commerce Act.
Cheney R.R. Co. v. R.R. Ret. Bd., 50 F.3d 1071, 1074-
76 (D.C. Cir. 1995). But some parts of that Act were
later moved elsewhere, leading to a real practical
difference between the two versions of the law. The
D.C. Circuit held that the original Statutes at Large
prevailed over the Code, thereby subjecting further
railroads to regulation. Jd. Similarly, in Five Flags
Pipe Line Co. v. Department of Transportation, the
court confronted a Code provision allowing direct
appellate review of regulations promulgated “under
this chapter,” even though the original session law
authorized such review only for regulations “under
this Act.” 854 F.2d 1438, 1440 (D.C. Cir. 1988).
Again, the court followed the original text, not the
Code. And because the regulation at issue had been
promulgated under the “chapter” but not under the
“Act,” the court lacked jurisdiction. Jd. at 1442.
Cheney and Five Flags involved provisions of the
Code that had not been enacted into positive law, but
courts apply a similar rule “even where,” as here,
“Congress has enacted a codification into positive
law.” Uniied States v. Welden, 377 U.S. 95, 98 n.4
(1964). That is, courts do not assume that Congress
intended such consolidation to effect any “changes of
law or policy,” unless that intent is “clearly
expressed.” Fourco Glass Co. v. Transmirra Prods.
Corp., 353 U.S. 222, 227 (1957) (interpreting Title
28). Indeed, when it enacted Title 28 of the Code
into positive law, Congress expressly warned that
“(njo inference of a legislative construction is to be
drawn by reason of the chapter in Title 28 ... in
21
which any section is placed.” Ch. 646, § 33, 62 Stat.
869, 991 (1948). So, while the exclusive-remedy
provision is found in the “chapter” of Title 28 that the
Code says does “not apply” to § 2680 claims, it is not
in the “title” that the Statutes at Large say does “not
apply.” And because the latter governs in discerning
Congress’s intent, the “shall not apply” directive was
simply irrelevant to the interpretation of § 2679(b) in
Smith. Here, it is dispositive.
b. Beyond this historical distinction,
Petitioners’ argument ignores crucial _ textual
differences between § 2676 and § 2679(b)—including
the very language Smith relied on in holding that the
latter reaches claims enumerated by § 2680.
As Smith reasoned, the express language of the
Westfall Act’s exclusive-remedy provision makes
clear that the provision extends to claims arising
from conduct within § 2680’s exceptions. The Act
provides that when the Attorney General certifies
that a federal employee named as a defendant was
acting in the scope of his employment, the United
States shall be substituted as the defendant and the
suit “shall proceed in the same manner” as any
FTCA suit and “shall be subject to the limitations
and exceptions applicable to those actions.” 28
U.S.C. § 2679(d)(4) (emphasis added). The cited
“exceptions” are those expressly “designated as such
under § 2680.” Smith, 499 U.S. at 166. The Westfall
Act’s legislative history confirmed this
straightforward reading of the text, emphasizing
that “any claim against the government that is
precluded by the exceptions set forth in Section 2680
... also is precluded against an employee.” Id. at 167
n.9, 175 (quoting committee report). Thus, as Smith
22
concluded, “Congress recognized”—and, indeed,
directly ordered—that its new provisions would
govern suits falling within § 2680’s “exceptions’—
notwithstanding that section’s longstanding “shall
not apply” language. Jd. at 166.
Congress was entitled to so provide. After all, a
“later enactment governs” over an earlier one,
Lockhart v. United States, 546 U.S. 142, 149 (2005)
(Scalia, J., concurring), and § 2679(d)(4)’s language
leaves no doubt that Congress intended to apply
§ 2679(b) even to claims falling within § 2680's
“exceptions.” Insofar as there is any tension between
that clear directive and § 2680’s “shall not apply”
command, it was incumbent upon this Court to look
to the specific language of the new provisions for
elucidation of legislative intent. That language
squarely answered the question.
By contrast, there is no countervailing evidence
from any other provision of the FTCA that Congress
expected the judgment bar to be triggered by claims
within § 2680's reach. Given the textual differences,
Congress’s intent for § 2679(b) to govern § 2680
claims in no way suggests that Congress meant for
§ 2676 to be triggered by § 2680 claims. The two
inquiries are analytically distinct. And the text
points in a different direction for each.
c. These historical and __ textual
distinctions comport with OCongress’s_ distinct
“fundamental purpose[s]” in enacting the FTCA and
the Westfall Act respectively. Reves v. Ernst &
Young, 494 U.S. 56, 60-61 (1990). As explained,
Congress enacted the FTCA to expand the avenues of
relief available to persons injured by federal
employees. Supra pp. 2, 14-16. By contrast, it
23
crafted the Westfall Act to eliminate a class of
existing remedies, see Pub. L. No. 100-694, § 2(b),
102 Stat. at 4564 (“[iJt is the purpose of this Act to
protect Federal employees from personal liability for
common law torts”), with the important caveat that
this narrowing of available remedies “does not
extend or apply to” constitutionally based Bivens
claims, 28 U.S.C. § 2679(b)(2); see also supra p. 4.
The Court’s interpretation of the Westfall Act in
Smith furthered that statute’s employee-protecting
purpose. Petitioners’ argument here, by contrast,
would thwart both the remedy-enhancing purposes of
the original FTCA and the Westfall Act’s specific
intention to leave Bivens claims undisturbed.
Nothing in Smith supports such a perverse result.
7 * *
In short, and for these reasons, Smith did not
sub silentio write “shall not apply” out of § 2680.
Those words do not overcome manifest congressional
intent as to application of the Westfall Act’s later-
enacted exclusive-remedy provision, but they directly
foreclose application of § 2676 in cases like this.
2. Petitioners next argue that the “shall not
apply” command of § 2680 cannot mean what it says
because another section of the FTCA, one that was
part of the original enactment and is now codified at
28 U.S.C. § 2679(a), was “understood to apply” to
claims exempted by § 2680. Pet.Br.52. Actually, just
the opposite is true, proving again that Congress
meant exactly what it said.
Section 2679(a) provides that for any agency that
is authorized “to sue and be sued in its own name,”
such authorization “shall not be construed” to allow
24
suit on claims “cognizable under section 1346(b).” In
other words, for agencies whose sovereign immunity
had been already waived by sue-and-be-sued clauses,
Congress “limit{ed] the force” of those waivers,
retracting them “in the context of suits for which
[Congress] provided a cause of action under the
FTCA.” Loeffler v. Frank, 486 U.S. 549, 561-62
(1988). Therefore, “if a suit is ‘cognizable’ under
§ 1346(b), the FTCA remedy is ‘exclusive’ and the
federal agency cannot be sued ‘in its own name,’
despite the existence of a sue-and-be-sued clause.”
FDIC v. Meyer, 510 U.S. 471, 476 (1994).
Contrary to Petitioners’ theory, but consistent
with § 2680's “shall not apply” instruction, § 2679(a)
does not apply—and was always understood not to
apply—to claims exempted by § 2680. The FTCA’s
retraction of agency sue-and-be-sued authorizations
extends only to claims remediable under the FTCA—
and not to claims carved out by § 2680. As such,
agencies with sue-and-be-sued clauses can indeed be
sued on the claims listed in § 2680, all else being
equal—because those clauses waive immunity and
§ 2679(a) does not claw back those waivers.
Proving this point, some of the § 2680 exceptions
categorically carve out from the FTCA any claims
arising from the activities of certain federal agencies,
such as the Tennessee Valley Authority (“T'VA”), the
Panama Canal Company, and certain federal banks.
See 28 U.S.C. § 2680(1)-(n). Congress enacted those
exceptions not to provide absolute immunity to those
select agencies, but because “adequate remedies
[we]re already available”—in direct suits under sue-
and-be-sued clauses. H.R. Rep. No. 79-1287, at 6
(1945); S. Rep. No. 79-1400, at 33 (1946).
25
For example, the “principal reason” for the TVA
exception was that the TVA “was susceptible to suit
prior to the enactment of the [FTCA],” so the FTCA’s
remedy was “unnecessary” as to it; the TVA therefore
“asked to be exempted.” Brewer v. Sheco Constr. Co.,
327 F. Supp. 1017, 1018 (W.D. Ky. 1971); see also
92 Cong. Rec. 6563-64 (1946) (exception meant to
ensure that “pending bill does not interfere with”
existing “rights to file claims against” the TVA).
Similarly, when Congress added a § 2680 exception
for claims arising out of the activities of the Panama
Railroad Company (as the Panama Canal Company
was then known), see ch. 340, 63 Stat. 444 (1949), it
did so because it wished to restore the Company’s
prior amenability “to suit on all claims, tort as well
as contract, in the same manner as any private
corporation.” H.R. Rep. No. 81-830, at 2 (1949). Far
from believing that § 2679(a) would apply to the
newly excepted claims, Congress intended the § 2680
exception to preclude application of the sue-and-be-
sued clawback to the Company. See id. at 2, 4 (letter
from Secretary of Army explaining that one reason
for this exception was to make inapplicable the
§ 2679 exclusive-remedy provision).
Consistent with that intent, courts—including
this one—have uniformly held for decades that these
entities can be sued in tort pursuant to their sue-
and-be-sued clauses, even though the FTCA exempts
the United States from liability for their acts. Thus,
in Gardner v. Panama Railroad Co., this Court read
the exception for the Panama Railroad Company as
allowing suit “directly against the company,” as had
been the case “before passage of the [FTCA].”
342 U.S. 29, 31-32 (1951) (per curiam). Congress did
26
not mean to “cut off, summarily,” all tort remedies
against the company. Id., accord De Scala uv.
Panama Canal Co., 222 F. Supp. 931, 934 (S.D.N.Y.
1963) (“Congress ... recognized that the Company
had always been and continued to remain suable.”).
As to the TVA, likewise, Smith observed that
“[clourts have read” its sue-and-be-sued clause “as
making the TVA liable to suit in tort,” “independent
of the FTCA.” 499 U.S. at 168-69; see also North
Carolina ex rel. Cooper v. TVA, 515 F.3d 344, 349
(4th Cir. 2008); Wayne v. TVA, 730 F.2d 392, 397
(5th Cir. 1984); Queen v. TVA, 689 F.2d 80, 85 (6th
Cir. 1982). And courts have reached the same result
for the federal banks exempted by § 2680(n). Sterrett
vu. Milk River Prod. Credit Ass’n, 647 F. Supp. 299,
301-02 (D. Mont. 1986); Tooke v. Miles City Prod.
Credit Ass’n, 763 P.2d 1111, 1113 (Mont. 1988).
All of this makes perfect sense if § 2680’s “shall
not apply” language is given its ordinary meaning:
Because § 2679(a) does “not apply” to claims wholly
exempt from the FTCA under § 2680, entities like
TVA remain suable directly. Section 2679(a) does
not make “exclusive” a non-existent FTCA remedy.
Yet on Petitioners’ view, § 2679(a) withdraws the
sue-and-be-sued clauses for torts against TVA and
the Panama Canal Company—and, at the same time,
§ 2680 exempts their activities from FTCA remedies
entirely. That makes nonsense of the scheme,
leaving no tort remedies at all against these entities.
It undermines clear legislative intent that these
agencies would remain suable, and indeed that the
§ 2680 exceptions were appropriate precisely because
of that exposure. And it contradicts all the caselaw
above, including this Court’s Gardner holding.
27
Against all of this, Petitioners invoke an
ambiguous analysis in the legislative history
(Pet.Br.52), in which Assistant Attorney General
Shea described § 2679(a) as “plac[ing] torts of ‘suable’
agencies ... upon precisely the same footing as torts
of ‘nonsuable’ agencies” and suggested that the
FTCA exceptions would therefore apply to torts of
suable agencies. 1942 Hearing, supra, at 29. Of
course, Petitioners’ interpretation of this analysis is
contradicted by the excepted agencies’ continued
amenability to suit, as discussed above. Moreover, in
Meyer, this Court “reject[ed] this reading of the
statute,” holding that § 2679(a) does not preclude
Bivens claims against agencies subject to sue-and-be-
sued clauses, notwithstanding that this result “runs
afoul of’ Congress’s purported desire to place all
agencies on “the same footing.” 510 U.S. at 478-79.
Similarly, only suable agencies are subject to
potential liability on claims exempted by § 2680, for
which Congress likewise did not “provid[e] a cause of
action under the FTCA.” Loeffler, 486 U.S. at 562.3
3 Of course, sue-and-be-sued agencies will not necessarily
face liability for the claims exempted by § 2680. For example.
an independent statute directs that all “tort claims arising out
of activities of the Postal Service” are subject to the FTCA. 39
U.S.C. § 409(c). That provision—which would be redundant of
§ 2679(a) on Petitioners’ reading—incorporates § 2680's
exemptions, including for claims alleging negligent mail
transmission, as to ail tort claims against the Service. See
Davric Me. Corp. v. U.S. Postal Serv., 238 F.3d 58, 61-64 (lst
Cir. 2001) (applying § 409(c) to bar such a claim). Further, sue-
and-be-sued clauses waive immunity, but do not answer the
“analytically distinct” question whether there exists “an avenue
for relief.” Meyer, 510 U.S. at 484 (citing United States v.
Mitchell, 463 U.S. 206, 218 (1983)). Finally, sue-and-be-sued
28
If anything, the interplay between § 2679(a) and
§ 2680 thus proves again that the latter’s “shall not
apply” instruction was no mistake.
3. Finally, Petitioners object that Congress
could not have intended to exempt § 2680 claims
from the FTCA’s definitional provision or from other
procedural rules included within the original “title”
that § 2680 said “shall not apply” to its claims.
Pet.Br.52. That is not persuasive.
As to the FTCA’s definitional provision, see ch.
753, § 402, 60 Stat. at 842-43, the answer is simple.
These are definitions of statutory terms. They do not
apply or attach to “claims” at all, so there is nothing
for § 2680 to render inapplicable. That is, § 2680
directs that the Act’s provisions “shall not apply” to
certain “claim{s].” But the definitions do not speak
to “claims”; they speak to statutory terms.
As for the procedural provisions, it makes perfect
sense that the rules for “counterclaim and set-off,”
for “interest upon judgments,” and for “payment of
judgments,” see ch. 753, § 411, 60 Stat. at 844, would
“not apply” to § 2680 claims, since courts do not even
have jurisdiction over them. No set-offs, interest, or
judgments to be paid would ever arise.
(continued...)
clauses do not strip common-law immunities, which protect
against some of the claims exempted by § 2680. Pet.Br.27. For
example, courts allow sue-and-be-sued agencies like the TVA to
assert a common-law “discretionary function” immunity, even
though § 2680(a)—which codified that rule for FTCA claims—
does not itself apply. Queen, 689 F.2d at 85; Brewer, 327 F.
Supp. at 1018-19; Atchley v. TVA, 69 F. Supp. 952, 955 & n.4
(N.D. Ala. 1947).
29
That leaves only the Act’s special provision—no
longer extant—for appeal, if all parties consented, to
the Court of Claims instead of the Court of Appeals.
Ch. 753, § 412, 60 Stat. at 844-45 (repealed 1982).
Petitioners say “[t]here is no reason to believe”
Congress meant to exempt § 2680 dismissals from
that alternative route for appeal. Pet.Br.52. But
Congress may have wanted a special role for the
claims court in reviewing liability determinations,
while leaving the circuit courts to review threshold
determinations of the FTCA’s inapplicability. Cf.
1942 Hearing, supra, at 17-23 (debating role of Court
of Claims). In any event, it is hardly absurd to send
§ 2680 dismissals, like most district-court orders, to
regional circuits for review. Petitioners’ speculation
about congressional intent in this limited respect is
no basis for wholesale disregard of § 2680's text.
4. And wholesale disregard is what Petitioners
seek. Their passing effort to construe § 2680's “shall
not apply” language does not pass the laugh test.
The “better reading” of those words, Petitioners
offer, is that only the FTCA’s waiver of immunity
and imposition of liability do “not apply” to § 2680
claims. Pet.Br.52. But Congress did not say there
shall be no liability for the exempted claims, or no
jurisdiction over them. “Had that been Congress’s
intention, it could easily have used the formulation
just suggested.” Hartford Underwriters Ins. Co. v.
Union Planters Bank, N.A., 530 U.S. 1, 7 (2000).
Congress broadly provided that the title as a whole
“shall not apply” to these claims. On its face, that
sweeps in the judgment bar. See Levin, 133 S. Ct. at
1232 (rejecting Government’s “most unnatural”
reading of “shall not apply” to mean “does apply’).
30
The only “advantage” of Petitioners’ reading is
that it would shield § 2680 claims from application of
all the FTCA provisions that burden the Government
(i.e., its immunity waiver and imposition of liability)
while fully applying the FTCA provisions that benefit
the Government (i.e., the sue-and-be-sued clawback
and judgment bar). Pet.Br.53. Indeed, Petitioners’
“better reading” must have been gerrymandered to
serve precisely that objective, as it has no grounding
in the statutory text—and does not pretend to. This
Court rejected that sort of self-serving “parsing” in
Meyer, 510 U.S. at 479, and should do the same here.
o *
Petitioners ask this Court to apply what they say
is the judgment bar’s plain text. But they ignore the
plain text of § 2680, which directs that the judgment
bar has no application to claims like Respondent’s.
By freeing plaintiffs to proceed against legally viable
defendants when the United States has categorically
disclaimed liability, that natural reading makes good
sense and avoids absurd results. This Court should
give effect to plain text throughout the FTCA.
II. SECTION 2676 ALSO MAKES CLEAR THAT
SECTION 2680 DISMISSALS DO NoT TRIGGER
THE JUDGMENT BAR.
Even looking only to the text of § 2676 itself, no
judgment bar arises when a putative FTCA claim is
dismissed under § 2680. First, Petitioners agree that
the FTCA’s jurisdictional provision, § 1346(b), does
“not apply” to § 2680 claims and that § 2680
dismissals are jurisdictional in nature. It follows
that a § 2680 dismissal is not a judgment in an
action “under section 1346(b),” as § 2676 requires.
31
Second, § 2676 extends to federal employees the res
judicata “bar” of an FTCA “judgment” for or against
the United States—but it does not invest otherwise
non-preclusive dismissals with dispositive force.
Accordingly, a jurisdictional dismissal under § 2680,
which lacks any claim-preclusive effect, is not a
“judgment” entitled to the extended res judicata
“bar” afforded by § 2676. Third, even if dismissals
under § 2680 were not jurisdictional, they reflect
defenses personal to the Government, and so would
not preclude a claim against a federal employee
under the res judicata principles that § 2676
incorporates. Petitioners’ contrary theory ignores
the Act’s context, defies basic res judicata principles,
and is hardly compelled by statutory text.
A. Jurisdictional Dismissals Do Not Count
As Judgments In Actions “Under” The
FTCA’s Jurisdictional Provision.
When a court dismisses a tort claim against the
United States based on a § 2680 exception, that is
not a judgment in an action “under” the FTCA’s
jurisdictional provision, § 1346(b). Quite the contrary:
Such a dismissal is a ruling that a claim cannot be
adjudicated under § 1346(b). It therefore does not
trigger the judgment bar.
1. There is no dispute here that the exceptions
to FTCA liability found in § 2680 are jurisdictional in
nature. Section 1346(b) is the FTCA’s “jurisdictional
provision.” Pet.Br.3. Absent that provision, no court
would have power to hear tort claims against the
United States. Moreover, “[s]overeign immunity is
jurisdictional in nature,” Meyer, 510 U.S. at 475, and
so jurisdiction in FTCA actions also depends on
§ 1346(b)’s limited waiver of sovereign immunity, id.
32
at 475-77. Yet § 2680 expressly says that § 1346(b)
“shall not apply” to claims within its exceptions. As
Petitioners accordingly agree, the § 2680 exceptions
thus “limit the subject-matter jurisdiction of district
courts.” Pet.Br.4; see also Dalehite, 346 U.S. at 24.
This is not just semantics. There are significant
differences between mere elements of a claim, on one
hand, and crucial jurisdictional facts, on the other.
Cf. Arbaugh v. Y & H Corp., 546 U.S. 500, 510-14
(2006). Among other things, the fact that the § 2680
exceptions are jurisdictional means that they are not
waivable, a procedural boon the Government takes
full advantage of. See, e.g., Bolduc v. United States,
402 F.3d 50, 54, 60-62 (1st Cir. 2005) (addressing
“belated” invocation of § 2680(a) for this reason).
The Seventh Circuit alone holds that § 2680's
exceptions are mere affirmative defenses, rather
than jurisdictional limits. See Collins v. United
States, 564 F.3d 833, 837-38 (7th Cir. 2009). But
Petitioners do not defend the Seventh Circuit’s
approach, and for good reason: Unlike the FTCA’s
limitations provision, which is not linked to § 1346(b)
and which this Court accordingly held last Term is
not jurisdictional, see United States v. Wong, 135 S.
Ct. 1625, 1633 (2015), § 2680 is expressly tied to
§ 1346(b) and carves out “classes of cases” from
courts’ “adjudicatory authority,” perfectly fitting this
Court’s paradigm of a “jurisdictional” limit, Kontrick
uv. Ryan, 540 U.S. 443, 454-55 (2004).
Anyway, whatever the proper treatment of the
§ 2680 exceptions in general, the Government here
obtained dismissal of Respondent’s claim under Rule
12(b)(1), contending that the district court “lack[ed]
subject matter jurisdiction.” JA.115. The court
33
agreed. Pet.App.49a. There is therefore no doubt
that the “judgment” supposedly triggering § 2676
was indeed a dismissal for lack of jurisdiction.
2. Section 2676 applies to judgments in actions
“under section 1346(b).” “The word ‘under’ has many
dictionary definitions and must draw its meaning
from its context.” Ardestani v. INS, 502 U.S. 129,
135 (1991); see also FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 132 (2000) (“meaning ...
of certain words or phrases may only become evident
when placed in context”). Here, “the most natural
reading’ is that § 2676 is triggered only by judgment
in a suit that is “subject to” § 1346(b), Ardestani, 502
U.S. at 135—i.e., one that actually falls within its
jurisdictional scope.
Again, the idea is that plaintiffs should have one
“full and fair opportunity” to seek relief. Montana v.
United States, 440 U.S. 147, 153 (1979). But if the
court has no power to adjudicate the claim because it
is not within the court’s jurisdiction, then “the action
was not properly brought under the [FTCA] in the
first place.” Hallock v. Bonner, 387 F.3d 147, 155 (2d
Cir. 2004) (emphasis added), vacated on other
grounds, Will, 546 U.S. 345. The putative FTCA
action was not, as it turns out, actually “under”
§ 1346(b). Dismissal of such an action thus ought
not, and does not, preclude a distinct cause of action
against a distinct defendant. Supra pp. 14-16; see
also Note, The Federal Tort Claims Act, 56 Yale L.J.
534, 559 (1947) (contemporaneous scholarship
agreeing with this reading of “under”); 3 Lester S.
Jayson & Robert C. Longstreth, Handling Federal
Tort Claims §16.13 (2015) (endorsing this
interpretation).
34
Here, again, the “shall not apply” language of
§ 2680 is relevant, reinforcing this natural reading of
“under.” Petitioners concede that, whatever else,
§ 1346(6b) does “not apply” to §2680 claims.
Pet.Br.52. But if that is so, it follows that § 2680
claims are not brought “under” § 1346(b): An action
dismissed because § 1346(b) does “not apply” is not
an action “under section 1346(b).”
This Court has applied similar reasoning before,
looking past the mere /abel of the action to ascertain
whether it truly was under the applicable statute. In
Oklahoma Gas and Electric Co. v. Oklahoma Packing
Co., for example, this Court confronted a provision
that assigned constitutional claims to enjoin state
officers to three-judge trial courts, with direct appeal
to this Court over the final decree “in such suit.” 292
U.S. 386, 390 (1934). Although the “allegations” in
the case, “present[ed] on their face every prerequisite”
required, this Court refused to hear the direct appeal:
“fW]hen it became apparent, as it did upon the final
hearing, that there was never any basis for relief of
any sort against the state officers, ... there was no
longer any occasion for proceeding under” the
provision at issue. Jd. at 391. The Court thus looked
to whether the claim actually implicated the
jurisdictional grant, not just whether it so alleged.
Similarly, this Court’s doctrine of “complete
preemption” recognizes that even when a claim is
pleaded under state law, it may “in reality” arise
“under” federal law, thus allowing federal courts to
exercise jurisdiction pursuant to 28 U.S.C. § 1331.
Beneficial Natl Bank v. Anderson, 539 U.S. 1, 8
(2003); accord Caterpillar Inc. v. Williams, 482 U.S.
386, 393 (1987).
35
As these decisions show, a claim that on its face
invokes a jurisdictional provision may not in fact
trigger that provision or all of its consequences, Okla.
Gas, 292 U.S. at 391, while a claim that facially
disclaims a jurisdictional provision may yet trigger it,
Beneficial, 539 U.S. at 8. Labels, in other words, do
not always control. What matters is the context and
the purpose of the jurisdictional provision.
By the same token, a putative tort claim against
the Government is not “under” the FTCA simply by
virtue of the plaintiff's attempt to inyoke that statute.
Rather, if it “bec{[o]me[s}] apparent ... that there was
never any basis for relief’ under that statute in the
first place, Okla. Gas, 292 U.S. at 391—for example,
because the jurisdictional provision does “not apply”
to the claim—then that claim should not treated as
one “under” § 1346(b). That is the best reading of
§ 2676, in view of its context and purpose.
3. Petitioners respond that this construction of
“under” is foreclosed by the Court’s decision in Meyer.
Pet.Br.45-48. But Meyer is doubly irrelevant.
At the outset, Meyer construed a different word:
whether a claim is “cognizable” under § 1346(b), see
510 U.S. at 476, not whether an action is “under”
§ 1346(b). While Petitioners suggest that these two
terms are interchangeable, this Court “refrain[s]
from concluding” that “differing language” in “two
subsections” of one statute “has the same meaning in
each.” Russello v. United States, 464 U.S. 16, 23
(1983). And there is an obvious difference between
the two words: “Cognizable” is language of capability.
See Meyer, 510 U.S. at 476 (quoting definition of
cognizable as “capable of being tried or examined
before a designated tribunal” (emphasis added)).
36
Cognizability may thus turn exclusively on whether
the claim “alleges” the “elements” of § 1346(b). Id. at
476-77. But “under” is language of reality, making it
appropriate to consider whether the action turns out
to actually implicate § 1346(b) jurisdiction.
Moreover, Petitioners’ premise is false: Meyer
did not hold that a claim exempted by § 2680 is still
“cognizable” under § 1346(b). The claim in Meyer
was not a § 2680 claim at all, and this Court never
addressed § 2680 (beyond in an unrelated footnote).
See id. at 474, 478 n.6. Rather, this Court held that
a Bivens claim is not “cognizable” under § 1346(b)
because it does not “allegie] the six elements” of that
jurisdictional hook. Jd. at 477. The Court thus had
no occasion to speak to whether a claim that alleged
those necessary elements but also fell within one of
the § 2680 exceptions to which § 1346(b) does “not
apply” would qualify as “cognizable” under § 1346(b)
(much less whether its dismissal would constitute a
judgment in an action “under” § 1346(b)).
Petitioners emphasize a footnote in Meyer that
clarified that the proper inquiry is whether a claim is
“cognizable” under § 1346(b), “not whether a claim is
cognizable under the FTCA generally.” Id. at 477 n.5
(emphasis omitted). But that banal observation,
which corrected imprecise language in a prior case,
Loeffler, 486 U.S. at 562, likewise does not suggest
that claims exempted by § 2680 are cognizable under
§ 1346(b). Because of § 2680, § 1346(b) does not
apply to the exempted claims. Thus, it is perfectly
fair to say that such a claim is not “cognizable” under
§ 1346(b)—and, a fortiori, that its dismissal is not a
judgment “under” § 1346(b).
37
4. Straying further afield, Petitioners again cite
Smith, this time to argue that its construction of
§ 2679(b) forecloses Respondent’s reading of “action
under [§]1346(b)” in § 2676. See Pet.Br.48-50.
The simple answer is that the two provisions are
not remotely similar in text or purpose. Indeed, this
Court in Meyer rejected the same Government-
pressed analogy, calling Smith “unhelpful”: After all,
the Court “had no occasion in Smith to address the
meaning of the term ‘cognizable’ because § 2679(b)(1)
does not contain the term.” Meyer, 510 U.S. at 478
n.6. Nor does § 2679(b)(1) contain the term “under”;
Smith is thus equally “unhelpful” here. /d. Further,
as already explained, the result in Smith was plainly
dictated by other provisions in the Westfall Act, to
which there is no analogue here. Supra Part I.B.1.
B. Jurisdictional Dismissals Are Not
“Judgments” Under Section 2676.
Jurisdictional dismissals, such as under § 2680,
do not trigger the judgment bar for a second reason
as well. In light of the judgment bar’s history and
context, dismissals that lack claim-preclusive effect,
like those for lack of jurisdiction, do not constitute
“judgments” within the meaning of § 2676.
1. “Judgment” is a term with many definitions.
Sometimes it means any determination by a court.
Pet.Br.18-20. Sometimes it means appealable orders
as in Federal Rule of Civil Procedure 54. Pet.Br.21.
But there are narrower definitions, too. Specifically,
when the FTCA was enacted, one accepted definition
required, as a prerequisite to a “judgment,” that the
issuing court possess jurisdiction over the matters
adjudicated. See, e.g., Black’s Law Dictionary (3d ed.
38
1933) (defining “judgment” as “[t]he final
determination, by a court of competent jurisdiction, of
the rights of the parties in an action or proceeding”
(emphasis added)); 1 Abraham Clark Freeman, A
Treatise on the Law of Judgments 4 (Edward W.
Tuttle ed., 5th ed. 1925) (offering, as one definition of
judgment, “the final consideration and determination
of a court of competent jurisdiction upon the matters
submitted to it” (emphasis added)).
If Congress intended the latter definition in
§ 2676, then the judgment bar is not triggered by a
jurisdictional dismissal of a putative FTCA action,
such as under § 2680. Such a dismissal is not a
“judgment” adjudicating an FTCA claim, merely
acknowledgement of the court’s lack of authority to
adjudicate the claim at all.
The question here is which definition Congress
meant. Contrary to Petitioners’ suggestion, courts at
the time of the FTCA’s enactment did not answer the
question. Petitioners cite many decisions describing
dismissals of FTCA claims—even jurisdictional] ones,
or dismissals under § 2680—as “judgments.” Pet.Br.
20 & n.6. But those courts were not construing the
judgment bar, or analyzing how Congress intended
the term in that provision. Again, the question is not
whether a jurisdictional dismissal could be described
as a “judgment,” but whether Congress intended the
term “judgment” in § 2676 to include such orders.
Nor is the question resolved by the FTCA’s use of
the word “judgment” in other provisions. Petitioners
point to § 412 of the original Act, which provided that
final FTCA “judgments” “shall be subject to review
by appeal” as specified there, and note that Congress
presumably intended the same appellate review for
39
jurisdictional dismissals. Pet.Br.22. Even if so, but
see supra p. 29, other uses of “judgment” in the Act
point the opposite direction. For example, one
section of the Act provides that the United States
“shall not be liable for interest prior to judgment.”
28 U.S.C. § 2674. In that context, Congress is
referring to money judgments against the United
States; there would never be potential liability for
“interest” prior to a dismissal. Other FTCA
provisions likewise use “judgment” to refer to an
award against the United States. See 28 U.S.C.
§ 2672 (directing settlements to “be paid in a manner
similar to judgments ... in like causes”); id. § 2678
(prohibiting attorneys’ fees in excess of 25% of “any
judgment rendered pursuant to section 1346(b)”).4
In short, there are and always have been many
meanings of “judgment.” Which one Congress meant
in § 2676 calls for analysis of that provision’s context.
See Brown & Williamson, 529 U.S. at 132 (“meaning
4 Indeed, the legislative history suggests that Congress
understood the word “judgment” in § 2676 itself to refer to a
money judgment against the Government. A Senate Report
discussed how “[jjudgments” triggering the judgment bar “are
to be paid.” S. Rep. No. 77-1196, at 6 (1942) (“Judgments,
which will bar further action upon the same claim against the
negligent employee as well as the Government, are to be paid in
the same manner as judgments rendered upon contract claims
under the Tucker Act ....”). This Court, too, in one its earliest
FTCA cases, said that the “one respect” in which the FTCA
“touchfes] the liability of employees” is that § 2676 “makes the
judgment against the United States ‘a complete bar’ to any
action by the claimant against the employee.” Gilman, 347 U.S.
at 509 (emphasis added). That construction would also resolve
this case against Petitioners.
40
... of certain words or phrases may only become
evident when placed in context”); cf. Yates v. United
States, 135 S. Ct. 1074, 1082 (2015) (plurality op.)
(cataloging cases ascribing different meaning to
“identical language” in different statutes and
“different provisions of the same statute”).
2. The “context” of the judgment bar is res
judicata and claim preclusion. Those background
principles, against which § 2676 was enacted,
confirm that no bar arises from mere jurisdictional
dismissals, which carry no preclusive effect as a
general rule. They are not, in other words,
“judgments” within the meaning of § 2676.
a. As Will recognized, the closest
“analogy to the judgment bar” is “claim preclusion, or
res judicata,” because the judgment bar “functions in
much the same way” and was motivated by the same
“concern”—namely, “avoiding duplicative litigation.”
546 U.S. at 354. Confirming its intent to incorporate
principles of claim preclusion into § 2676, Congress
tellingly used the traditional res judicata language of
a “bar” to suit. See Taylor v. Sturgell, 553 U.S. 880,
892 n.5 (2008) (“[c]laim preclusion describes the
rules formerly known as ‘merger’ and ‘bar”).
To be sure, there would have been no need for
the judgment bar if all it did was apply principles of
claim preclusion to FTCA judgments. Res judicata
already applies to federal judgments, as a matter of
federal common law. Id. at 891. Section 2676 must
therefore extend beyond traditional preclusion rules,
at least as those rules were understood at the time of
the FTCA’s enactment. Cf. Will, 546 U.S. at 354
(recognizing that § 2676 is “arguably broader than
traditional res judicata”).
41
And it does—in a very clear way. Specifically,
when Congress enacted the FTCA, a judgment in
favor of a federal employee in a personal-capacity suit
would, under then-prevailing ordinary preclusion
rules, have barred a subsequent respondeat superior
claim against the Government. See Restatement of
Judgments §99 (1942) (“valid judgment on the
merits ... in favor of a person charged with the
commission of a tort ... bars a subsequent action ...
against another responsible for the conduct of such
person”); see also id. § 96(1)(a) & cmts. b, d (same
rule in master-servant scenario if servant sued first);
Roadway Express, Inc. v. McBroom, 6 S.E.2d 460,
462 (Ga. Ct. App. 1939) (“a judgment on the merits in
favor of the agent or servant ... is res judicata in
favor of the principal or master”). There being no
dispute on that score, there was no need for Congress
to provide that a judgment in an action against an
employee would bar a subsequent FTCA suit.
By contrast, if a plaintiff asserted respondeat
superior liability against the employer first, the 1942
Restatement took the view that the plaintiff, if
unsuccessful, could sue the employee—because of a
lack of “mutuality” between defendants. Restatement
of Judgments § 96(2) cmt. j (“[w]here an action is
brought first against the one secondarily liable there
is ordinarily no reason for an exception to the
ordinary rules of mutuality and hence ... there is
ordinarily no reason for binding the unsuccessful
claimant”); see also Myers’ Admnx v. Brown, 61
S.W.2d 1052, 1053-54 (Ky. Ct. App. 1933) (answering
no to question “whether a judgment in favor of a
master or principal in a suit brought for the alleged
negligence of the servant or agent ... inures to the
42
benefit of that servant or agent when later sued by
the same plaintiff for the same negligence”); Gilmer
v. Porterfield, 212 S.E.2d 842, 844 (Ga. 1975)
(“Although a master has privity with his servant and
can claim the benefit of an adjudication in favor of
the servant, a servant is not in privity with the
master so as to be able to claim the benefit of an
adjudication in favor of the master.”); McVeigh v.
McGurren, 117 F.2d 672, 678 (7th Cir. 1940) (“a
judgment against the principal is not binding or
conclusive on an agent who is not a party’).
Not all courts agreed. Some rejected the
Restatement view, holding that a judgment in favor
of a master “is a bar” to a subsequent suit against
the servant. E.g., Wolf v. Kenyon, 273 N.Y.S. 170,
173 (App. Div. 1934); Jones v. Valisi, 18 A.2d 179,
181 (Vt. 1941). The state of this mutuality law when
the FTCA was enacted was thus. unclear.
Accordingly, Congress spoke to the question directly.
Embracing the more relaxed approach to mutuality,
Congress adopted a uniform federal rule that the
judgment in an FTCA suit should be given preclusive
effect in—i.e., in the language of res judicata, should
“bar”—a subsequent suit against the employee.
Congress and the Executive Branch understood
that the purpose of the judgment bar was to ensure
symmetry in res judicata treatment of tort claims
against the Government and its employees.
Testifying to Congress about the differences between
the bill that became the FTCA and a prior version
that lacked a judgment bar, Assistant Attorney
General Shea explained that the judgment bar
meant that a “[jjudgment in a tort action constitutes
a bar to further action upon the same claim, not only
43
against the Government (as would have been true
under [the prior version]) but also against the
delinquent employee.” 1942 Hearing, supra, at 27
(emphasis added); see also S. Rep. No. 77-1196, at 6
(1942) Gudgments “will bar further action upon the
same claim against the negligent employee as well as
against the Government”). Notably, like the enacted
FTCA, the referenced prior version of the bill
contained no express provision barring further action
upon the same claim against the Government. See
H.R. 5373, 77th Cong. (1941). It was understood
that such a bar arose from—and was defined by—the
the common law of res judicata.5
Both modern scholarship and contemporaneous
analysis agree that Congress enacted the judgment
bar against the common-law backdrop of res
judicata, to create a uniform symmetrical rule of
preclusion for tort claims against the Government
and its employees. See James E. Pfander & Neil
Aggarwal, Bivens, the Judgment Bar, and the Perils
of Dynamic Textualism, 8 U. St. Thomas L.J. 417,
427-45 (2011); Harry Street, Tort Liability of the
State: The Federal Tort Claims Act and the Crown
Proceedings Act, 47 Mich. L. Rev. 341, 358 (1949)
(bar “extends” the “common law rules of res judicata”
to benefit employees). Indeed, only that reading of
§ 2676 explains its unidirectionality—its operation in
favor of employees but not the Government itself.
5 The parallel wording of the FTCA provision protecting
employees from lawsuits following acceptance of a settlement
from the Government, see 28 U.S.C. § 2672; supra p. 15, is
further evidence of Congress’s focus on common-law principles
of res judicata and mutuality.
44
b. Given that context, “judgment” as it
is used in § 2676 cannot be understood as including
jurisdictional dismissals. Those dismissals have no
res judicata effect in the first place. Yet § 2676's
object was to extend the claim-preclusive effect of
FTCA judgments by relaxing the mutuality doctrine.
It was not meant to grant preclusive effect to
judgments that never would have had preclusive
fi. ce even in favor of the original defendant.
It is black-letter law that dismissals for lack of
jurisdiction do not carry claim-preclusive effect: not
when the FTCA was enacted, and not today either.
Restatement of Judgments § 49 & cmt. a (1942) (no
claim-preclusive effect for dismissal “based on the
lack of jurisdiction”); Restatement (Second) of
Judgments § 20(1)(a) (1982) (no bar to “another
action” when “judgment is one of dismissal for lack of
jurisdiction”); Hughes v. United States, 71 U.S. 232,
237 (1866) (where “first suit was dismissed for ...
want of jurisdiction,” dismissal “will prove no bar to
another suit”); Swift v. McPherson, 232 U.S. 51, 55-
56 (1914). “If there were no jurisdiction, there was no
power to do anything but to strike the case from the
docket.” Mayor v. Cooper, 73 U.S. 247, 250 (1867).
In light of this background rule, a jurisdictional
dismissal is not a “judgment” within the meaning of
§ 2676, as contemporaneous commentators agreed.
See Note, supra, at 559 & n.170 (judgment bar
“should not be interpreted as referring to any
judgment by which the court denies its jurisdiction,”
which “cannot be res judicata of the issues involved
in the action”). A jurisdictional dismissal would not
even preclude suit against the original defendant
based on the same events, so why would it preclude
45
suing a non-party? In other words, Petitioners’
reading would, oddly, afford certain dismissals more
potent preclusive effect in favor of non-parties than
in favor of the United States. That cannot be right.
See also infra Part III (detailing these and other
absurdities of Petitioners’ construction).
In short, if the judgment in an FTCA action
would allow the Government to preempt a second
suit, then it also allows federal employees to invoke
res judicata principles if they are sued instead. But
if the original dismissal would not even allow the
Government to shut down a second suit, then such a
dismissal does not count as a “judgment” that bars
suit against the responsible employee either. Simply
put, such a “Judgment” has no claim-preclusive effect
for § 2676 to extend to the benefit of the employee. It
therefore does not constitute a “judgment” within the
meaning of § 2676.
3. Looking to res judicata background rules to
inform ambiguous statutes is a course this Court has
taken before. The Anti-Injunction Act generally
forbids federal-court injunctions against litigation in
state courts. See 28 U.S.C. § 2283. But an exception,
enacted just two years after the FTCA, allows such
injunctions when necessary to “protect or effectuate”
the “judgments” of a federal court. Jd. Construing
that exception, this Court has recognized that it is
“founded in the well-recognized concepts of res
judicata and collateral estoppel,” and utilized those
concepts to inform its “proper scope.” Chick Kam
Choo v. Exxon Corp., 486 U.S. 140, 147 (1988). The
same goes for the FTCA judgment bar, which uses
the same crucial, ambiguous word: “judgment.”
46
Indeed, Chick Kam Choo shows why Petitioners’
broad reading of the judgment bar is wrung. In that
case, a federal court dismissed claims arising from
events in Singapore, invoking forum non conveniens
in favor of a suit in that country. Id. at 142-43. The
plaintiffs, however, refiled in state court. Jd. The
question was whether the state-court suit could be
enjoined to effectuate the federal “judgment” of
dismissal. /d. at 144-45. Consistent with preclusion
principles, this Court said no: The federal court had
not “resolve[d] the merits” of the claims, and state
courts may “consider themselves an appropriate
forum,” even if federal courts did not. Jd. at 148.
Similarly, a jurisdictional dismissal of an FTCA
action against the United States is not a “judgment”
that should bar a claim against a federal employee.
Like a dismissal based on forum non conveniens, it
does not resolve the merits of the underlying tort
claim, and the employee may be a viable defendant
even if the Government is not.
4. Petitioners agree that § 2680 dismissals are
jurisdictional, but nonetheless claim that they carry
res judicata effect and should trigger the judgment
bar. Their arguments are wrong.
a. Petitioners claim that, whatever the
general rule for jurisdictional dismissals, § 2680
dismissals reflect substantive policy judgments as to
the scope of liability and thus constitute decisions
“on the merits” carrying claim-preclusive effect.
Pet.Br.33-38. This argument is doubly flawed.
At the outset, Petitioners misunderstand the
meaning of “on the merits.” As this Court has noted,
that phrase was historically used as a shorthand
47
description of the type of judgment “entitled to claim-
preclusive effect.” Semtek Intl Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 502-03 (2001). But “over
the years,” the phrase’s meaning changed, and it is
now “no longer true that a judgment ‘on the merits’
is necessarily a judgment entitled to claim-preclusive
effect.” Jd. “That is why the Restatement of
Judgments has abandoned the use of the term [‘on
the merits’]—‘because of its possibly misleading
connotations.” Jd. at 503 (quoting Restatement
(Second) of Judgments § 19, cmt. a). The dichotomy,
rather, is between judgments entitled to claim-
preclusive effect and those that are not. See id.®
Accordingly, whether § 2680 dismissals can be
characterized as “substantive” in some sense—such
as in unrelated contexts like retroactivity doctrine,
see Pet.Br.39—is irrelevant. Either way, they are
dismissals for lack of jurisdiction, because the court
simply has no power to adjudicate the claim. Accord
Pet.Br.4. Under res judicata principles, they are
therefore not entitled to claim-preclusive effect. See
Semtek, 531 U.S. at 502. And that is why they do not
trigger the judgment bar, which merely extends to
employees the existing res judicata effects of FTCA
judgments.
6 Many cveurts, of course, continue to refer to a judgment
“on the merits” as a prerequisite for claim preclusion, when
they mean, more precisely—albeit less descriptively—that there
must be a type of judgment entitled to claim-preclusive effect.
Semtek, 531 U.S. at 502. That is surely how the Sixth Circuit
intended the phrase, when it explained that § 2676 is triggered
only by a judgment “on the merits,” Pet.App.8a, as opposed to
one for “lack of subject-matter jurisdiction,” Pet.App.6a.
48
Anyway, even if “on the merits” were the proper
standard, a § 2680 dismissal is not “on the merits” in
the relevant sense of “pass[ing] upon the substantive
merits of [the] claim.” Semtek, 531 U.S. at 502. Yes,
§ 2680 reflects policy judgments about when the
United States should waive its sovereign immunity.
Pet.Br.34. But, at the same time, it does not reflect
any judgment about the substantive tort claim under
state law. Indeed, the § 2680 exceptions apply
despite the existence of a viable state-law tort claim.
Section 2680 relates to the availability of a remedy
against the United States, but says nothing about the
underlying substantive right under state law.
In that sense, a § 2680 dismissal is analogous to
a statute-of-limite*ions dismissal, which historically
“merely bars the remedy and does not extinguish the
substantive right”—and therefore traditionally lacks
claim-preclusive effect. Semtek, 531 U.S. at 504. So
just as a plaintiff whose first suit was time-barred
could still sue in another jurisdiction, id., a plaintiff
who has no remedy against the Government under
§ 2680 could still sue the responsible employee under
state tort law or otherwise.’
7 For this reason, then-Judge Breyer’s opinion in Rose uv.
Town of Harwich, 778 F.2d 77 (1st Cir. 1985), hurts rather than
helps Petitioners. That court acknowledged that jurisdictional
dismissals lack claim-preclusive effect, but held that the statute
of limitations applied by the state court in that case was not
truly jurisdictional. See id. at 79-80. Among other things, that
particular limitations bar—unlike most—did extinguish the
“right,” not merely the “remedy.” Jd. at 80-81. But § 2680
speaks only to the remedy against the United States.
49
b. Petitioners also insist that, while
jurisdictional dismissals generally lack res judicata
effect, there is a different rule for such dismissals if
based on sovereign immunity. See Pet.Br.38 & n.18.
Again, Petitioners conflate two distinct concepts.
State sovereign immunity, as a matter of state law,
may well be an affirmative defense that does not
deprive state courts of jurisdiction. Thus, for
example, the first case Petitioners cite on this point,
Flores v. Edinburg Consol. Indep. Sch. Dist., 741
F.2d 773, 775 & n.3 (5th Cir. 1984), relies on a Texas
case holding “sovereign immunity” to be an
“affirmative defense,” Herring v. Tex. Dep't of Corrs.,
500 S.W.2d 718, 719-20 (Tex. Civ. App. 1973).
Similarly, in Kutzik v. Young, 730 F.2d 149, 151 (4th
Cir. 1984), the court relied on Maryland’s treatment
of state sovereign immunity as a “legal defense,” not
a “jurisdictional” flaw, Annapolis Urban Renewal
Auth. v. Interlink, Inc., 405 A.2d 313, 318 (Md. Ct.
Spec. App. 1979). Accord Beaver v. Bridwell, 598 F
Supp. 90, 93 (D. Md. 1984).
The sovereign immunity of the United States,
however, as a matter of federal law, is decidedly a
jurisdictional limit on the federal courts. Meyer, 510
U.S. at 475. Petitioners do not claim otherwise. A
dismissal on that basis, such as pursuant to a § 2680
exception, thus has “no res judicata effect.” Williams
vu. United States, 50 F.3d 299, 304 (4th Cir. 1995).
C. Finally, Petitioners observe that even
jurisdictional dismissals have issue-preclusive effect
as to the findings underlying the dismissal. Pet.Br.
39-40. That is true, but irrelevant.
50
Issuc preclusion, traditionally called collateral
estoppel, “foreclosies] relitigation of a matter that
has been litigated and decided.” Migra v. Warren
City Sch. Dist. Bd. of Ed., 465 U.S. 75, 77 n.1 (1984).
That includes jurisdictional determinations. But the
relevant doctrine here is claim preclusion, usually
called res judicata, which “foreclos[es] litigation of a
matter that never has been litigated.” Id. After all,
an employee invoking the judgment bar to shut down
a Bivens suit does not claim the latter is barred by
any factual or legal finding that triggered dismissal
of the FTCA action under § 2680. Petititioners do
not assert that Respondent’s Bivens suit is somehow
foreclosed because they exercised a “discretionary
function.” Pet.App.53a. Rather, they argue that the
Bivens claim arises from the same events as the
FTCA action did, and so dismissal of the latter bars
the former. That is an effort to invoke the judgment
bar as an analogy to claim preclusion. But because
jurisdictional dismissals lack claim-preclusive effect,
§ 2676 cannot extend that effect to favor employees.
To be clear: Section 2676's “bar” filled a hole in
the law of claim preclusion, i.e., “merger and bar,” so
employees could invoke the claim-preclusive force of
FTCA dismissals. But jurisdictional dismissals carry
no claim-preclusive effect in the first place; such
dismissals should not be regarded as “judgments”
within that provision’s meaning. Petitioners’ retort
that jurisdictional dismissals carry some limited
issue-preclusive effect is therefore beside the point.
In short, Petitioners do not deny that § 2680 is
jurisdictional, and cannot deny that jurisdictional
dismissals are not res judicata. A § 2680 dismissal is
thus not a “judgment” triggering the § 2676 “bar.”
51
C. Section 2680 Dismissals Do Not Trigger
The Judgment Bar Since They Rest On
Defenses Personal To The Government.
Because all parties agree that § 2680 sets forth
jurisdictional exceptions, the Court should so assume
in resolving this case. But even if a § 2680 dismissal
were not jurisdictional, it still would not be a
“judgment” triggering the § 2676 “bar.” Section 2680
reflects a decision by the United States not to accept
respondeat superior liability for certain types of
claims. These are thus defenses personal to the
Government, with no application to suits against
employees. Under the res judicata principles
reflected by the judgment bar, dismissals on such
personal defenses cannot be invoked to bar suits
against non-parties, even when mutuality is not a
barrier. So just as dismissal of a claim against an
employee based on a defense unique to him would
not “bar” suit against his employer, dismissal of an
FTCA suit under § 2680 does not trigger the
judgment “bar” to preclude a Bivens suit.
The 1942 Restatement explained that for a
‘judgment on the merits” in favor of a servant to “bar
a subsequent action” against “another responsible for
the conduct of such person” (e.g., his employer), that
judgment could “not [be] based on a_ personal
defense.” Restatement of Judgments § 99; see also id.
§ 96. That is, to have preclusive effect, the judgment
could not rest on a defense only available to the
servant, such as a “personal immunity.” Jd. § 96
cmt. g. States that did not follow the Restatement’s
asymmetrical preclusion rule likewise held that
judgments in favor of a master based “on some
personal defense” would not bar subsequent suits
52
against the servant. E.g., Griffin v. Bozeman, 173 So.
857, 859-60 (Ala. 1937). Thus, if an employer were
exonerated for his employee’s acts “in consequence of
a finding that the employee acted beyond the scope of
his employment, the judgment would not merit
conclusiveness” in a suit against the employee.
Lober v. Moore, 417 F.2d 714, 718 n.31 (D.C. Cir.
1969); Tighe v. Skillings, 9 N.E.2d 532, 534 (Mass.
1937).8 The same rule governs today: Judgments
resting on personal defenses do not trigger res
judicata in the principal-agent context. See
Restatement (Second) of Judgments § 51(1)(b) & cmt.
c (1982) (no preclusion in second action if “judgment
in the first action was based on a defense that was
personal to the defendant”); Burdette v. Carrier
Corp., 71 Cal. Rptr. 3d 185, 197-98 (Ct. App. 2008).
The “bar” created by § 2676 incorporates that
same rule. It extends to employees the preclusive
force of FTCA judgments, rejecting the asymmetrical
Restatement rule. But it does not wipe away the
other conditions for res judicata. Thus, just as the
United States cannot avail itself of a judgment in
favor of an employee on a_ personal defense,
employees cannot avail themselves of judgments in
favor of the Government on its personal defenses.
And the § 2680 exceptions are quintessentially
8 See also Whitehurst v. Elks, 192 S.E. 850, 851 (N.C.
1937) (“Where the relation between two parties is analogous
to that of principal and agent, ... the rule is that a judgment
in favor of either, in an action brought by a third party,
rendered upon a ground equally applicable to both, should be
accepted as conclusive against plaintiffs right of action
against the other.” (emphasis added)).
53
personal. Like an assertion that an employee acted
outside the scope of employment, these exceptions
can only be “taken advantage of” by the Government.
Restatement of Judgments § 96 cmt. g. Because the
exceptions “would not apply to an action against [an
employee],” dismissal on these grounds “does not bar
[a] subsequent action against” the employee. Id.
In sum, in extending the res judicata effect of
FTCA judgments to preclude subsequent litigation
against federal employees, the judgment bar did not
override the background common-law rule that
personal-defense dismissals carry no preclusive
effect. There is no reason to believe that Congress
sought, in this respect, to afford greater protection to
federal employees than to the United States itself.
* * *
When a court dismisses a putative FTCA action
under § 2680, that is neither a dismissal of an action
“under” the FTCA’s jurisdictional hook nor a
“judgment” that acts as a “bar” under res judicata
principles. Such a dismissal thus does not have the
counterintuitive consequence of barring the plaintiff
from invoking the only remedy actually available.
Ill. PETITIONERS’ EXPANSIVE READING OF THE
JUDGMENT BAR WOULD LEAD TO ABSURD
RESULTS.
Petitioners urge this Court to hold that § 2676 is
triggered by any dismissal, on any ground, of any
tort claim against the Government. That unyielding
position—which no Circuit has embraced since the
FTCA’s 1946 enactment—has to be wrong. It would
cause a host of absurdities, undermining Congress’s
objectives in enacting the landmark statute.
54
First, Petitioners’ wooden reading leads to
absurd results. They claim that the “plain meaning”
of § 2676 does not limit its scope, and so any “entry of
a ‘judgment” in a suit invoking the FTCA precludes
subsequent Bivens actions. Pet.Br.12, 17. On that
construction, if a plaintiff erroneously filed his FTCA
suit in the Southern District of Ohio instead of the
Northern District, leading to dismissal without
prejudice for improper venue, he could refile that
suit—but would be precluded from filing a Bivens
action. Or, if the FTCA action were dismissed
because the employee was not acting within the
scope of employment—a holding that means the
employee himself ought to be “personally
answerable,” Gutierrez de Martinez, 515 U.S. at
423—a suit against the employee’ would,
paradoxically, be precluded. That makes no sense,
as noted by both early and modern commentators.
See Reginald Parker, The King Does No Wrong—
Liability for Misadministration, 5 Vand. L. Rev. 167,
176 (1952) Gudgment bar “obviously” does not apply
there); Jayson & Longstreth, supra, § 16.13 (noting
how Petitioners’ reading “produc[es] absurd results”).
Second, the practical consequence of that broad
reading is that injured parties would have every
incentive to sue the employee first—to avoid the risk
of a jurisdictional FTCA dismissal extinguishing the
Bivens action. Section 2676, after all, precludes only
the latter based on the former, not vice versa. But
one of the Act’s principal objects was to offer relief
from the deep-pocketed Government to discourage
personal-capacity suits, which “attack ... the morale
of the services.” Gilman, 347 U.S. at 511 n.2.
Petitioners’ construction would do the opposite.
55
Finally, if injured parties did not sue the
employee first, Petitioners’ reading would deprive
them of any opportunity to remedy their injuries—
even if they are otherwise entitled to relief from
someone as a matter of both fact and law. It may
well be that § 2680 bars relief from the Government.
But that hardly implies that the employee has
complied with the Constitution. To the contrary, it is
“crystal clear that Congress views FTCA and Bivens
as parallel, complementary causes of action.”
Carlson v. Green, 446 U.S. 14, 20 (1980). That is
why Congress expressly exempted Bivens claims
from the Westfall Act’s exclusive-remedy provision.
Yet, on Petitioners’ view, a judicial decision finding
the FTCA inapplicable—even if § 2680's applicability
presented a close legal question, and the plaintiff’s
claim was colorable—would be a death knell for the
“parallel” Bivens remedy. Nothing in the FTCA’s
purposes or history supports that strange result. See
id. at 18-19 (Bivens suit precluded only if “Congress
has provided an alternative remedy which it
explicitly declared to be a substitute”). The Act was
not meant to minimize litigation at all costs, but to
give plaintiffs a choice of two remedies. If one of
those remedies is categorically unavailable, that is
all the more reason to permit the other.
CONCLUSION
This Court should a‘firm the judgment below.
56
FEBRUARY 2016 Respectfully submitted,
CHRISTIAN G. VERGONIS
Counsel of Record
YAAKOV M. ROTH
DAVID T. RAIMER
JORDAN VON BOKERN
JONES DAY
51 Louisiana Ave., NW
Washington, DC 20001
(202) 879-3939
cvergonis@jonesday.com
Counsel for Respondent
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