Amicus Curiae Brief — Simmons v. Himmelreich, 136 S. Ct. 445 (2015) (No. 15-109)

No. 15-109

Gn The

Supreme Court of the United States

«

JERMAINE SIMMONS & BRIAN BUTTS,

Petitioners,

Vv.

WALTER J. HIMMELREICH,

Respondent.

°

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

¢

BRIEF OF PROFESSORS GREGORY SISK

AND JAMES PFANDER AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

S

GREGORY C. SISK

Counsel of Record

UNIVERSITY OF ST. THOMAS

SCHOOL OF LAW

1000 LaSalle Avenue

Minneapolis, Minnesota 55403

(651) 962-4923

gcesisk@stthomas.edu

Counsel for Amici Curiae

—_—_ — --——

COUKLE LEGAL, BRIEFS (s0U! 2h GUGt

WWW.COCKLELEGAL.BRIEFS.CA)az

—_—_—

i

TABLE OF CONTENTS

Page

_ gg TE ee i

TABLE OF AUTHORITIES ..................00cccecceeeeeeees iii

STATEMENT OF INTEREST OF AMICI

STITT snstsiiceietticaiaicinildiancinpntdiammapnsbedintinitinionsneeie 1

SUMMARY OF THE ARGUMENT ........................ 2

iat iiataaailaia 5

I. Rather Than Faithfully Applying the Text

and Original Meaning of 28 U.S.C. § 2676,

the Courts of Appeals Have Entangled the

Application of the Judgment Bar With a

Misguided Jurisdictional Inquiry................ 5

A. The Courts of Appeals Have Mistakenly

Understood the Application of the FTCA

Judgment Bar as Turning on Charac-

terization of a Judgment as Jurisdic-

iat leet 6

B. The Exceptions to the FTCA in Section

2680 Are Substantive Defenses, Not

Jurisdictional Prerequisites.................. 10

II. Under Section 2676, Exoneration of the

Vicariously-Liable Government Employer

for Non-Negligence in an FTCA Suit Bars

a Subsequent Claim Only as to the Same

Tort Theory Against the Individual Em-

i

TABLE OF CONTENTS — Continued

Page

A. Congress Enacted Section 2676 to Sup-

plement Limited Preclusion Law and

Direct That a Non-Negligence Finding

for the Derivatively-Liable Federal Em-

ployer Bars a Claim on the Same State

Tort Theory Against the Employee....... 17

B. By Barring a Subsequent Claim “By

Reason of the Same Subject Matter,”

Section 2676 Precludes Only the Same

State Tort Claim Against the Employee

That Had Been Adjudicated in a Prior

FTCA Claim Against the United States

in Respondeat Superior Litigation........ 21

C. Federal Courts Can Effectively Coor-

dinate FTCA and Bivens Claims With-

out the Blunt Instrument of the

I I iccnipeienintaiintainasiniantiinmnmtuns 27

Ill. Because Section 2680 Directs That the

Provisions of the FTCA “Shall Not Apply”

When a Case Falls Within an Exception to

the FTCA, Section 2676’s Judgment Bar Is

STITT sins ceincineisscenientiambnaeiaaasaimatiiiadianaiila 29

II sxtncessisncedsnnsinenensinnsciinntectentnnnsinnenintines 31

ill

TABLE OF AUTHORITIES

Page

CASEs:

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)........... 14

Bivens v. Six Unknown-Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388

SUT isinetuini eine lieneetinibibcaeatailadiliaaiiinireaslaueauinibietaainil passim

Block v. Neal, 460 U.S. 289 (1983)... cece eeeees 13

Brooks v. United States, 337 U.S. 49 (1949).............. 28

Collins v. United States, 564 F.3d 833 (7th Cir.

ai clan di called dae liiniitalameeaipantin 7

Dalehite v. United States, 346 U.S. 15 (1953)......13, 23

Dolan v. United States Postal Service, 546 U.S.

ic iiaieinecinictenbieinleciiidanbiiltadietiltiniecialiamiand 14, 15

Estate of Trentadue ex rel. Aguilar v. United

States, 397 F.3d 840 (10th Cir. 2005) ....... cians 22

Federal Deposit Insurance Corp. v. Meyer, 510

I ciiintcssunnniienimideiennisnnnimincaaets 10, 11, 26

Feres v. United States, 340 U.S. 135 (1950).......... alan

Gonzalez v. Thaler, 132 S. Ct. 641 (2012).................. 11

Government Emp. Ins. Co. v. Ziarno, 170

F. Supp. 197 (N.D.N.Y. 1959), rev’d on other

grounds, 273 F.2d 64 (2d Cir. 1960)..............:.s000 24

Hallock v. Bonner, 387 F.3d 147 (2d Cir. 2004),

vacated on other grounds sub nom. Will v.

Hallock, 546 U.S. 345 (2006) ............cccccoceccesssesseceeees 8

Himmelreich v. Federal Bureau of Prisons, 766

nO I scestenesbomadedontiansiliced 8

iv

TABLE OF AUTHORITIES — Continued

Page

Hoosier Bancorp of Indiana, Inc. v. Rasmussen,

EEE SPIE, MII sic scccccicensitsiniinnscevcnenevenconsss 8

Indian Towing Co. v. United States, 350 U.S.

ERE RARE SE ce BO 13

Kremer v. Chemical Constr. Corp., 456 U.S. 461

cn UE ES RE ET Ne SY ee 21

Levin v. United States, 133 S. Ct. 1224 (2013).......... 30

Manning v. United States, 546 F.3d 430 (7th

EE RIN PER RE aT a 22, 29

Molzoff v. United States, 502 U.S. 301 (1992)........... 25

Moon v. Price, 213 F.2d 794 (5th Cir. 1954)............... 29

Parrott v. United States, 536 F.3d 629 (7th Cir.

SEE STAR CTS A e ACe 7

Prescott v. United States, 973 F.2d 696 (9th Cir.

RASS SS RESON elite meen CeCe een OO )

Richardson v. United States, 943 F.2d 1107 (9th

ER AC AES ARCS IE ee ee a 9

Smith v. United States, 507 U.S. 197 (1993)............. 13

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).....13, 22

Stewart v. United States, 199 F.2d 517 (7th Cir.

SRST yt Sal rae ae ee OE 6, 12, 13

United States v. Kwai Fun Wong, 135 S. Ct.

AEE SE SE A LAC Co 15, 16

United States v. Smith, 499 U.S. 160 (1991)............. 31

Williams v. Fleming, 597 F.3d 820 (7th Cir.

SIT sscdbceiechcedecesbhaeiuliainhcestiatveiesbcainiildaiinasbianialaulitile 7,27

v

TABLE OF AUTHORITIES — Continued

Page

STATUTES:

Federal Employees Liability Reform and Tort

Compensation Act (Westfall Act):

SD Dts © ED vicnesineeciccncinisctitasinimanen 30

SP Say © Te cxcceveccevisnccenssnsetentiiaemmaaiianane 30

BD as © ED ccc cnccvescsnsicuteantidibadanieauaaa 31

Federal Tort Claims Act:

Federal Tort Claims Act of 1946, chap. 753,

FF ts IE cvinvecstesncivinnnintocceisiusiiahimemuunaiaiaeee 17

SD WEARER © RIOD scccccscccecesesscentotenie 5, 10, 17, 30, 31

SD SAD. ©] TUS sescrsvessvencssetontesaiamniis 11, 14, 16

aD Cs © ED ccrccensnccsorincinnnesniiiaiimmmanimaiaaa 16

LE | IEE Er! 28

Be Weide OF Mee Ol ascancasescceniocencvtnnntededsisniaaasaaiiaian 14

Lt nC E RT passim

SD dee Ce cnicoccnvntenssetintentatnustioniimiaale passim

SD Seas © SD vesnisscosresccttecicncenindiitaniaiaaaaanae 10

BP dy: 0b SID cencverscctnivsneininienieniiiiidadamaiiinsialianiaa 10

DN Ream 14

Gonzalez Act, 10 U.S.C. § 1089(e).......0.. occ eee eee 30

Ge GARE: © BIE vevecccscssitinnsticinteniancinsiiediiaiaasiaee 28

vi

TABLE OF AUTHORITIES — Continued

Page

LEGISLATIVE MATERIALS:

Tort Claims: H.R. 5373 and H.R. 6463 Hear-

ings Before the Comm. on the Judiciary, 77th

ES ea 20, 26

RESTATEMEN’S:

Restatement (First) of Judgments (1942):

SL 20, 25

Ek EE ree 25

EE eo 20, 25

EEE eee 18

cereal 3, 18, 23

ET 18

nal ctcit cater ntnenanseasinnttanennnnte 18

SE 18

EEE ETT ETRE OE 24

Restatement (Second) of Judgments (1980):

cc a 21

EEE Rae 28

Restatement (First) of Restitution (1937):

NEE ee 18

vii

TABLE OF AUTHORITIES — Continued

TREATISES AND BOOKS:

Richard L. Marcus, Martin H. Redish, Edward

F. Sherman & James E. Pfander, Civil Pro-

cedure: A Modern Approach (West Academic,

Bae Ba iccrenccncccsnnnsessoncsensmnennensuniesseseusmnnngen

James E. Pfander, One Supreme Court: Su-

premacy, Inferiority, and the Judicial Power

of the United States (Oxford U. Press, 2009) ....

James E. Pfander, Principles of Federal Juris-

diction (Thomson-West, 2d ed. 2011) ................

Martin H. Redish, Suzanna Sherry & James E.

Pfander, Federal Courts: Cases, Comments,

and Questions (West Academic, 7th ed. 2012)..

Gregory C. Sisk, Litigation With the Federal

Government (ALI-ABA, 4th ed. 2006 & Supp.

See ccccnceccsccennensnstasnagmmnseperanscenotenapetnmneaieaneonnsees

Gregory C. Sisk, Litigation With the Federal

Government: Cases and Materials (Founda-

tion Press, 2d ed. 2008 & Update 2015)............

Gregory C. Sisk, Litigation With the Federal

Government (West Academic, forthcoming

SIP EITD conresensesenscesangpsnsennassnstiemmeniicennemantenssinteinanes

Page

viii

TABLE OF AUTHORITIES — Continued

LAW JOURNAL ARTICLES:

Thomas E. Bosworth, Comment, Putting the

Discretionary Function Exception in Its Prop-

er Place: A Mature Approach to “Jurisdiction-

ality” and the Federal Tort Claims Act, 88

ee ik Ce Sie CR icrnccccstinscnsicncncnnennicnstennsncses 10

David P. Currie, The Federal Courts and the

American Law Institute (Part II), 36 U. Chi.

i SEES Serre eNEnere 12

Scott Dodson, Mandatory Rules, 61 Stan. L.

ESE eee eee eee 12

James E. Pfander & Neil Aggarwal, Bivens,

the Judgment Bar, and the Perils of Dy-

namic Textualism, 8 U. St. Thomas L.J. 417

Stl adinsebinionndnenlicmespenviinnenintiiabinis 19, 21, 25, 29

Gregory C. Sisk, The Continuing Drift of Fed-

eral Sovereign Immunity Jurisprudence, 50

Wm. & Mary L. Rev. 517 (2008) .............eeeeeeeeeeeee 10

Gregory C. Sisk, Twilight for the Strict Con-

struction of Waivers of Federal Sovereign

Immunity, 92 N.C. L. Rev. 1245 (2014).................. 15

1

STATEMENT OF INTEREST

OF AMICI CURIAE

Gregory Sisk and James Pfander submit this

brief as amici curiae.’ Our only interest in this matter

is that of legal scholars on federal courts, jurisdiction,

and procedure; constitutional and statutory claims

against the Federal Government and its officers; and

statutory waivers of federal sovereign immunity.

Professor Sisk holds the Laghi Distinguished

Chair in Law at the University of St. Thomas (Min-

nesota). For more than a quarter of a century, his

scholarly work has focused on civil litigation with the

Federal Government. He has published both a trea-

tise and the only law school casebook on the subject.

Litigation With the Federal Government (ALI-ABA,

4th ed. 2006 & Supp. 2012); Litigation With the Fed-

eral Government: Cases and Materials (Foundation

Press, 2d ed. 2008 & Update 2015). A new treatise on

Litigation With the Federal Government, including a

chapter devoted primarily to the Federal Tort Claims

Act, is scheduled for publication in early 2016 as part

of the West Academic hornbook series. Sisk also has

' The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part. No

person or entity made a monetary contribution to the prepara-

tion and submission of this brief other than the amici curiae and

their employers, the University of St. Thomas and Northwestern

University, which provide professional development funds to fac-

ulty members to support scholarly and public service work.

2

written a series of law review articles on federal

statutes waiving sovereign immunity.

Professor Pfander is the Owen L. Coon Professor

of Law at Northwestern University Pritzker School of

Law. He focuses his research on federal jurisdiction

and procedure. His books include Principles of Fed-

eral Jurisdiction (Thomson-West, 2d ed. 2011); Civil

Procedure: A Modern Approach (West Academic, 6th

ed. 2013) (with Richard L. Marcus, Martin H. Redish

& Edward F. Sherman); Federal Courts: Cases, Com-

ments, and Questions (West Academic, 7th ed. 2012)

(with Martin H. Redish and Suzanna Sherry); and

One Supreme Court: Supremacy, Inferiority, and the

Judicial Power of the United States (Oxford U. Press,

2009). He has published numerous law review arti-

cles on federal courts and jurisdiction, sovereign

immunity, and constitutional claims. Pfander has also

served as chair of both the federal courts and civil

procedure sections of the Association of American

Law Schools.

¢

SUMMARY OF THE ARGUMENT

Several federal courts have employed a Federal

Tort Claims Act (FTCA) judgment which failed to

address the substantive tort liability of the United

States to preclude an injured plaintiff from seeking

an alternative remedy against an individual federal

officer on a distinct constitutional theory. By reading

the FTCA judgment bar to apply to subsequent

constitutional claims, these courts have offered a

3

breathtakingly dynamic interpretation of 28 U.S.C.

§ 2676 that is divorced from its specific text, original

meaning, historical context, and purpose. A modest

and narrowly targeted legislative supplement to the

law of non-mutual collateral estoppel (issue preclu-

sion) applying in tort cases has been converted into a

super-charged, all-embracing, and novel rule of non-

mutual res judicata (claim preclusion).

To make matters worse, when addressing the

scope of the FTCA judgment bar, many Courts of

Appeals have stumbled into a misguided exploration

about whether rejection of an FTCA suit by reason of

a statutory exception should be characterized as a

jurisdictional dismissal rather than a judgment on

the merits. Those courts correctly recognizing that

the FTCA exceptions are non-jurisdictional substan-

tive defenses have continued down the erroneous

path by mistakenly reading a disposition on exception

grounds to trigger the FTCA judgment bar.

When the FTCA was enacted in 1946, Section

2676 was designed to block a specific kind of dupli-

cative litigation that could result from the Govern-

ment’s acceptance of respondeat superior liability in

suits for ordinary negligence. Under the law of the

period that prevailed in some states and as stated in

the Restatement (First) of Judgments § 96 (1942), if

a plaintiff filed a tort suit against an employee and

the employee was exonerated of negligence liability,

the doctrine of non-mutual issue preclusion likewise

barred suit against the vicariously liable employer.

But the opposite was not true under the Restatement,

4

that is, a judgment exculpating the derivatively-liable

employer from liability for negligence did not bar

a subsequent tort claim against the employee. The

FTCA judgment bar ensured that a judgment on the

merits of a negligence claim would operate as a pre-

clusion bar in both directions.

Section 2676 was enacted with suits against the

drivers of Government vehicles most prominently in

mind: it would, for example, block negligence suits

against the driver of a federal postal truck whose

act or omission had given rise to an earlier tort suit

against the Federal Government that had concluded

with a judgment of non-negligence. The idea was

straightforward: once a plaintiff pursued a vicarious

liability tort claim against the Federal Government to

judgment on the factual merits in an action that fell

under the FTCA, the judgment bar blocked a later

suit against the federal employee for the same act or

omission when also based on “the same subject mat-

ter,” that is, when grounded in the same theory of

state law negligence. See 28 U.S.C. § 2676.

By its text, understood in light of its original le-

gal context and animating purpose, Section 2676 can-

not be stretched to suppress a broader range of claims

than those made actionable under the FTCA. In par-

icular, the judgment bar cannot preempt constitu-

tional claims brought under the authority of Bivens v.

Six Unknown-Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971). Such Bivens claims

seek to impose liability on federal officers or employ-

ees in their personal capacity. The Government itself

5

bears no liability for Bivens claims, that is, the United

States has no vicarious or respondeat superior liabil-

ity for the constitutional torts of its employees.

Moreover, when a putative FTCA action is ex-

cluded by reason of one of the statutory exceptions

stated in 28 U.S.C. § 2680, the judgment bar in Sec-

tion 2676 is expressly retracted. Section 2680 directs

that when an exception applies, then “[t]he provisions

of this chapter and section 1346(b) of this title shall

not apply.” Accordingly, when an exception defeats an

FTCA action, Section 2676 is never triggered and

does not preclude a subsequent lawsuit against a dif-

ferent party.

S

ARGUMENT

I. Rather Than Faithfully Applying the Text

and Original Meaning of 28 U.S.C. § 2676,

the Courts of Appeals Have Entangled the

Application of the Judgment Bar With a

Misguided Jurisdictional Inquiry

When a person injured at the hands of a federal

employee is unable to maintain a putative state tort

action against the United States because the claim by

its nature falls outside the purview of the Federal

Tort Claims Act (FTCA), the judgment bar as codified

in 28 U.S.C. § 2676 never comes into operation. As

addressed in Part II of this brief, this judgment bar

was meant to preclude a plaintiff who failed to estab-

lish negligence in an FTCA action against the United

6

States from taking a second bite at the same tort

apple (the “same subject matter”) by thereafter suing

the individual employee.

When a claimant’s state-law tort case against the

United States as an entity falls away on an exception

to the FTCA, the Courts of Appeals have divided on

whether a subsequent Bivens claim against the in-

dividual employee is precluded by the statutory judg-

ment bar. Rather than faithfully attending to the

specific text and original meaning of Section 2676,

many lower federal courts have reached disparate re-

sults by addressing the separate question of whether

the dismissal of the FTCA action on exception grounds

should be characterized as a jurisdictional or non-

jurisdictional disposition. That misguided debate has

prompted a further digression into the meaning of the

word “judgment” for preclusion purposes.

A. The Courts of Appeals Have Mistakenly

Understood the Application of the FTCA

Judgment Bar as Turning on Charac-

terization of a Judgment as Jurisdic-

tional or Not

Appreciating that the exceptions to the FTCA

stated in 28 U.S.C. § 2680 are substantive limita-

tions on the Government’s liability, the United States

Court of Appeals for the Seventh Circuit has long

and rightly refused the Government’s importuning to

treat these exceptions as non-waivable jurisdictional

preconditions. See Stewart v. United States, 199 F.2d

7

517, 519 (7th Cir. 1952). To accept the Government’s

suggestion that an FTCA exception is jurisdictional

“would mean that even if the government failed to

raise any of these defenses, the district court and this

court (and the Supreme Court, if the case went that

far) would be obliged to consider it.” Collins v. United

States, 564 F.3d 833, 837 (7th Cir. 2009). Instead, the

FTCA exceptions “limit the breadth of the Govern-

ment’s waiver of sovereign immunity, but they do not

accomplish this task by withdrawing subject-matter

jurisdiction from the federal courts.” Parrott v. United

States, 536 F.3d 629, 634 (7th Cir. 2008).

Having avoided the error of carving the FTCA

exceptions into jurisdictional stone, the Seventh Cir-

cuit nonetheless has gone astray by misapprehending

the judgment bar in Section 2676 as triggered when-

ever a judgment is on the merits, but regardless of

the subject matter of the ruling or the nature of the

subsequent lawsuit. Thus, the Seventh Circuit mis-

takenly extrapolates an FTCA dismissal on exception

grounds into preclusion of a Bivens constitutional tort

claim against an individual federal officer arising

from the same events (but not the same tort theory).

See Williams v. Fleming, 597 F.3d 820, 823 (7th Cir.

2010). Indeed, the Seventh Circuit takes an excep-

tionally broad (and wrongheaded) view of the FTCA

judgment bar: any FTCA judgment will bar the claim-

ant’s Bivens action, no matter that the FTCA judg-

ment turned on statutory defenses peculiar to the

Government that do not bear the slightest relevance

to the viability of the constitutional tort claim. See

8

Hoosier Bancorp of Indiana, Inc. v. Rasmussen, 90

F.3d 180, 184-85 (7th Cir. 1996).

Other Courts of Appeals have sensibly sought to

narrow the sweep of the FTCA judgment bar to pre-

vent manifest unfairness. In the case under review,

for example, the United States Court of Appeals for

the Sixth Circuit appropriately observed that it would

be “punitive” to bar a plaintiff from seeking an alter-

native remedy in a subsequent action because he had

mistakenly filed an earlier FTCA action, “when that

statute does not permit recovery.” Himmelreich v. Feder-

al Bureau of Prisons, 766 F.3d 576, 580 (6th Cir. 2014).

Unfortunately, to reach this correct outcome,

these courts have held that the judgment bar does not

apply to FTCA suits dismissed on jurisdictional

grounds, which these same courts mistakenly regard

as including dismissals based on the FTCA exceptions

found in Section 2680. See, e.g., Himmelreich, 766

F.3d at 578-80; Hallock v. Bonner, 387 F.3d 147, 154-

55 (2d Cir. 2004), vacated on other grounds sub nom.

Will v. Hallock, 546 U.S. 345 (2006). In so doing,

these courts have imposed a jurisdictional gloss on to

the FTCA exceptions that is not supported by the text

of the statute or consistent with this Court’s FTCA

decisions. See infra Part I.B.

By extending a jurisdictional mischaracterization

of substantive defenses to limit the reach of the judg-

ment bar, these courts have perpetuated confusion

9

about the nature of the FTCA exceptions.’ The an-

swer for which these courts have been searching is

to be found forthrightly in the text and animating

purpose of Section 2676 and its express direction that

a prior FTCA judgment precludes a subsequent suit

only when that judgment was based on the “same

subject matter,” that is, the same tort theory. See

infra Part II. The question thus turns on the legal

terms of art found in Section 2676 itself, not on side

disputes about the jurisdictional character of other

provisions or about the meaning of “judgment.”

* The Ninth Circuit has deepened the confusion by treating

an FTCA exception as a curious hybrid between a jurisdictional

prerequisite and an affirmative defense. Under Prescott uv.

United States, 973 F.2d 696, 701 (9th Cir. 1992), the plaintiff has

the initial burden of demonstrating jurisdiction, which will fail if

the claim on the face of the complaint appears to come within

one of the FTCA exceptions. If the plaintiff’s complaint does not

clearly trigger an exception, the Ninth Circuit shifts the burden

to the United States to actually prove the applicability of the

exception, saying it is “analogous to an affirmative defense.” Jd.

at 702. In contrast with a typical affirmative defense, however,

the Ninth Circuit permits the United States to raise an excep-

tion at a late stage, once again elevating the exception to a

jurisdictional command not subject to waiver. Richardson uv.

United States, 943 F.2d 1107, 1112-13 (9th Cir. 1991).

10

B. The Exceptions to the FTCA in Section

2680 Are Substantive Defenses, Not Ju-

risdictional Prerequisites

Because they are stated in the FTCA as sub-

stantive exceptions to liability, rather than as limits

on the grant of subject matter jurisdiction to the

courts, the numerous exceptions should not be treat-

ed as jurisdictional.’ See generally Gregory C. Sisk,

The Continuing Drift of Federal Sovereign Immunity

Jurisprudence, 50 Wm. & Mary L. Rev. 517, 552-58

(2008); Thomas E. Bosworth, Comment, Putting the

Discretionary Function Exception in Its Proper Place:

A Mature Approach to “Jurisdictionality” and the

Federal Tort Claims Act, 88 Temple L. Rev. 91 (2015).

The FTCA was enacted in part as a conferral of

jurisdiction on the District Courts, with a textual de-

lineation of the factors that define court jurisdiction.

In Federal Deposit Insurance Corporation v. Meyer,

510 U.S. 471 (1994), this Court directly outlined the

genuinely jurisdictional elements of the Federal Tort

Claims Act (which notably do not include the excep-

tions in 28 U.S.C. § 2680). Examining 28 U.S.C.

§ 1346(b), which speaks in the language of jurisdic-

tion, the Meyer Court explained that it “grants the

federal district courts jurisdiction over a certain

* Under exceptional circumstances, such FTCA exceptions

as the discretionary function exception, 28 U.S.C. § 2680(a), and

the military combat exception, id. § 2680(j), may have jurisdic-

tional or justiciability implications under the political question

doctrine. -

11

category of claims for which the United States has

waived its sovereign immunity and ‘render[ed],’ itself

liable.” Meyer, 510 U.S. at 477 (citations omitted).

The jurisdictional parameters of the FTCA thus

include that “category” of claims which “allege the six

elements” outlined in 28 U.S.C. § 1346(b)(1), namely

a claim (1) against the United States, (2) for money

damages, (3) for personal injury, death, property

harm, or property loss, (4) caused by the negligent

or wrongful act or omission of any employee of the

United States, (5) while acting within the scope of his

office or employment, (6) under circumstances where

a private person would be liable under the law of the

place where the act or omission occurred. Meyer, 510

U.S. at 477.

By contrast, those additional provisions of the

FTCA that “prescribe the test of allowable claims”

and articulate exceptions to such liability fall within

the court’s jurisdiction to grant or deny a claim on

its merits, but are not jurisdictional rules in and of

themselves. See Feres v. United States, 340 U.S. 135,

140-41 (1950). ’

An all-consuming jurisdictional-style imperative

for each element of the FTCA’s waiver of federal sov-

ereign immunity would have “drastic” consequences

because “(subject-matter jurisdiction can never be

waived or forfeited,” “objections may be resurrected at

any point in the litigation,” and courts are obligated

to consider jurisdictional requirements sua sponte.

See Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012)

12

(non-FTCA case). The federal courts would be obliged

to identify and thoroughly explore each item on an

exhaustive (and exhausting) list of every statutory

exception, procedural requirement, and time limita-

tion that could conceivably be invoked as a defense to

an FTCA claim. As David Currie lamented about the

duty of the courts to “investigat[e] the existence of

jurisdiction on their own and at any stage of the

proceedings,” this is an “expensive habit.” David P.

Currie, The Federal Courts and the American Law

Institute (Part IT), 36 U. Chi. L. Rev. 268, 298 (1969).

Moreover, when a statutory provision is mistak-

enly characterized as jurisdictional in nature, the

determination of which issues deserve to be litigated

(or which instead may be waived or forfeited) is taken

out of the hands of the parties (both the claimant

and the Government). See Scott Dodson, Mandatory

Rules, 61 Stan. L. Rev. 1, 10 (2008) (“Waiver, consent,

and forfeiture allow the parties to designate which

issues require court decision and which are of such

relative unimportance to the parties that they would

rather forgo the costs of litigating them.”).

Mindful of the drastic effects of a jurisdictional

reading, the earliest Court of Appeals decision to ad-

dress the character of the exceptions concluded that

the FTCA “confer[s] general jurisdiction of the subject

matter of claims within its purview, and the excep-

tions referred to are available to the government as

a defense only when aptly pleaded and proven.”

Stewart v. United States, 199 F.2d 517, 519 (7th Cir.

1952). The suggestion that a plaintiff must anticipate

13

and negate every FTCA exception as a jurisdictional

precondition was thought “preposterous.” Jd. at 520.

In an occasional stray passage, this Court some-

times described an FTCA exception as “preclud[ing]

the exercise of jurisdiction,” Smith v. United States,

507 U.S. 197, 199 (1993), or offered a footnote sketch

of an earlier exception ruling as preventing “jurisdic-

tion to try a tort action,” Dalehite v. United States,

346 U.S. 15, 31 n.25 (1953). These casual comments

fell far short of a holding that the exceptions partake

of subject matter jurisdiction. Never has the Court

suggested the exceptions were jurisdictional in the

distinct sense of being non-waivable prerequisites re-

quiring sua sponte consideration by the courts. In-

deed, in both Indian Towing Co. v. United States, 350

U.S. 61, 64, 68 (1955) (which described the FTCA ex-

ceptions as “substantive limitations”), and Block v.

Neal, 460 U.S. 289, 294 (1983), the Court noted that

the Government had conceded that the discretionary

function exception was not implicated — a concession

the Court did not question as it would have been

obliged to do sua sponte were the exception a juris-

dictional element.

In recent decades, no decision by this Court has

hinted at jurisdictional consequence for an FTCA

exception.’ Indeed, decisions since the turn of the

* In Sosa v. Alvarez-Machain, 542 U.S. 692, 710 (2004), the

Court did say that foreign substantive law might apply in FTCA

cases “if federal courts follow headquarters doctrine to assume

jurisdiction over tort claims against the Government for foreign

(Continued on following page)

14

century have strongly indicated otherwise. For ex-

ample, in Dolan v. United States Postal Service, 546

U.S. 481 (2006), the Court observed that the waiver

of sovereign immunity for the FTCA comes in two

sections of the code. The first expressly “confers

federal-court jurisdiction in a defined category of

cases involving negligence committed by federal

employees in the course of their employment,” and

the second directs that the United States is liable in

the same manner as a private person under like

circumstances but not for prejudgment interest or

punitive damages. Jd. at 484-85 (citing 28 U.S.C.

§§ 1346(b)(1), 2674). By contrast, the “qualififcation of

the FTCA] waiver of sovereign immunity for certain

categories of claims” through thirteen exceptions is

found in a separate part of the statute. See id. at 485;

see also Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16

(2006) (“[WJhen Congress does not rank a statutory

limitation on coverage as jurisdictional, courts should

treat the restriction as nonjurisdictional in character.”).

harm” that had been planned or supervised inside the borders of

the United States. This then was another reason to read the

foreign country exception, 28 U.S.C. § 2680(k), as barring claims

involving injury in another nation. However, in this part of the

opinion, the Court was speaking of “jurisdiction” primarily in

terms of the geographic location of the court, whether in one or

another state or country, with choice of law consequences, rather

than in terms of federal judicial authority to hear a particular

class of claims. In any event, the Court did not suggest that the

FTCA exception was a non-waivable jurisdictional prerequisite.

15

Moreover, the Dolan Court emphasized that the

nature of the statutory provision at issue affects the

manner in which it should be construed. The Court

“noted that this case does not implicate the general

rule that ‘a waiver of the Government’s sovereign im-

munity will be strictly construed, in terms of its

scope, in favor of the sovereign.’” Dolan, 546 U.S. at

491 (citation omitted). The Court explained that “this

principle is ‘unhelpful’ in the FTCA context, where

‘unduly generous interpretations of the exceptions

run the risk of defeating the central purpose of the

statute,’ which ‘waives the Government’s immunity

from suit in sweeping language.’” Id. at 491-92 (ci-

tations omitted). This Court thereby rejected the

Government’s plea for strict construction of the ex-

ceptions in its favor as conditions on the waiver of

sovereign immunity. See id. at 491. See generally

Gregory C. Sisk, Twilight for the Strict Construction

of Waivers of Federal Sovereign Immunity, 92 N.C. L.

Rev. 1245, 1268-71 (2014).

Most recently, in United States v. Kwai Fun

Wong, 135 S. Ct. 1625 (2015), this Court expressly

rejected the Government’s assertion that the statute

of limitations for the FTCA is jurisdictional. The

Court characterized the propensity to “attach{ ] juris-

dictional consequence to conditions on waivers of sov-

ereign immunity” as belonging to an “earlier era.” Id.

at 1637. Today, the Court sets a “high bar” for reading

a particular provision to impose jurisdictional limita-

tions, given the “harsh consequences” of preventing

16

any waiver of the issue and imposing a duty on the

courts to evaluate the matter sua sponte. Id. at 1632.

The Kwai Fun Wong Court highlighted that the

FTCA statute of limitations, 28 U.S.C. § 2401(b), is

set out in a different section of the statute than the

jurisdictional grant. Kwai Fun Wong, 135 S.Ct. at

1633. Likewise, the exceptions to the FTCA are found

in Section 2680, not in the grant of jurisdiction over

FTCA claims in Subsection 1346(b)(1).

* * “*

The question in this case is not, as too many of

the Courts of Appeals have seen it, whether a prior

FTCA disposition was on jurisdictional grounds, nor

whether a jurisdictional dismissal qualifies as a “judg-

ment.” Rather, restoring attention to the text, con-

text,-and historical origins of Section 2676, the crucial

inquiry is whether the FTCA judgment disposed of

the same state tort theory that the plaintiff seeks to

resurrect in the subsequent action. Preclusion follows

under Section 2676 when the prior judgment was “by

reason of the same subject matter,” which is a term of

art borrowed from the Restaternent (First) of Judg-

ments to indicate resolution on the identical legal

theory. The textually specific and historically correct

interpretation would deny the judgment bar any role

in the preclusion of Bivens claims. In the next part of

this brief, we turn to that dispositive analysis.

17

Il. Under Section 2676, Exoneration of the

Vicariously-Liable Government Employer

for Non-Negligence in an FTCA Suit Bars a

Subsequent Claim Only as to the Same Tort

Theory Against the Individual Employee

Under Section 2676 of the Federal Tort Claims

Act, “(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 govern-

ment whose act or omission gave rise to the claim.”

When enacted in 1946, Federal Tort Claims Act of

1946, chap. 753, 60 Stat. 844, the judgment bar was

designed to complement and supplement the common

law of preclusion to prevent the plaintiff from getting

two bites at the apple on the merits of a single tort

claim, regardless of whether the plaintiff went to

judgment first against the Government as the em-

ploying entity or first against the individual Govern-

ment employee.

A. Congress Enacted Section 2676 to Sup-

plement Limited Preclusion Law and

Direct That a Non-Negligence Finding

for the Derivatively-Liable Federal Em-

ployer Bars a Claim on the Same State

Tort Theory Against the Employee

Under the law of preclusion when the FTCA

was enacted in 1946, if an injured plaintiff first

sued the servant (the employee) on a theory of negli-

gence and lost with a finding of non-negligence, the

18

exoneration would block a second suit against the

master (employer). Restatement (First) of Judgments

§ 96 (1942). As a narrow exception to the strict rule of

mutuality that prevailed at the time, see id. § 93, a

judgment in favor of the directly-liable employee was

accorded preclusive effect in a later action against the

vicariously-liable employer. The Restatement justified

this departure from mutuality by pointing to the duty

of indemnity, id. § 96(1)(a), that is, the servant’s duty

to indemnify the master for any vicarious liability

imposed on the master on account of the servant’s

negligence, Restatement (First) of Restitution § 96 (1937).

But when the order of litigation was reversed,

the rule of non-mutual preclusion did not apply, at

least in some states and under the 1942 Restatement

of Judgments. An exoneration of the master in an

earlier action had no effect in a subsequent claim

against the servant; it “binds neither the plaintiff nor

the [servant].” Restatement § 96(2). The Restatement

could discern “no reason for an exception to the

ordinary rules of mutuality,” because the servant, as

the party primarily liable, was owed no duty of in-

demnity and faced no threat of unfairness through

inconsistent results. Id. § 96(2) cmt. j.

In sum, the employer would enjoy preclusion

from exoneration of the employee in a prior judgment

because the employer’s liability was derivative or

secondary under the doctrine of respondeat superior.

But some state courts and the Restatement refused to

treat a judgment in“an action against the master as

a bar to further litigation against the servant, even

19

where the issue of negligence had been resolved

against the plaintiff in the earlier suit. See generally

James E. Pfander & Neil Aggarwal, Bivens, the Judg-

ment Bar, and the Perils of Dynamic Textualism, 8

U. St. Thomas L.J. 417, 419-20, 429-39 (2011).

As Congress during the 1930s and 1940s consid-

ered legislation waiving sovereign immunity and im-

posing respondeat superior liability on the United

States for tort claims, the Government expressed con-

cern that the Restatement’s rules of preclusion would

not regard a prior non-negligence finding in an action

against the United States as barring renewal of the

same negligence claim against the employee. Assis-

tant Attorney General Francis M. Shea testified at

the leading hearing on the legislation in support of a

legislative-fix to this problem:

If the Government has satisfied a claim

which is made on account of a collision be-

tween a truck carrying mail and a private

car, that should, in our judgment, be the end

of it. After the claimant has obtained satis-

faction of his claim from the Government, ei-

ther by judgment or by an administrative

award, he should not be able to turn around

and sue the driver of the truck. If he could

sue the driver of the truck we would have to

go in and defend the driver in the suit

brought against him, and there will thus be

continued a very substantial burden which

the Government has had to bear in con-

ducting the defense of post-office drivers and

other Government employees.

20

Tort Claims: H.R. 5373 and H.R. 6463 Hearings Be-

fore the Comm. on the Judiciary, 77th Cong. 9 (1942)

(hereinafter “Hearings”) (statement of Francis M.

Shea, Assistant Att’y Gen., U.S. Dept. of Justice).

To avoid that uneven result, Congress enacted

Section 2676 into the FTCA to block negligence suits

against the driver of a federal postal truck whose act

or omission had given rise to an earlier judgment in a

negligence suit against the United States. The draft-

ers of Section 2676 borrowed the “same subject mat-

ter” reference from the Restatement where it had been

used to describe a narrow subset of claims that rested

on the same theory of liability. See Restatement (First)

of Judgments §§ 70, 84 (1942). The “same subject

matter” formulation captured the logic underlying the

judgment bar’s relaxation of mutuality. Thus, a

judgment for the Government through a finding of

non-negligence — that is, on the “same subject matter”

— fairly bars a negligence ciaim against the employee

arising from the same act or omission because the

prior judgment negates the identical theory of tort

liability.

By establishing non-mutual preclusion in both

directions for both federal employer and federal

employee when the underlying negligence issue had

been decided in a suit against either, Section 2676 of

the FTCA operates to furnish a symmetry that had

eluded the Restatement. In this way, the judgment

bar served to block a specific kind of duplicative

litigation that otherwise could have resulted from

the Government’s acceptance of respondeat superior

21

liability in suits for ordinary negligence. See generally

Pfander & Aggarwal, supra, 8 U. St. Thomas L.J. at

420-21, 439-49.

B. By Barring a Subsequent Claim “By

Reason of the Same Subject Matter,”

Section 2676 Precludes Only the Same

State Tort Claim Against the Employee

That Had Been Adjudicated in a Prior

FTCA Claim Against the United States

in Respondeat Superior Litigation

Tearing Section 2676 loose from its animating

purpose when enacted hy Congress and re-interpreting

the text in a manner divorced from its meaning and

legal context, some Courts of Appeals have driven

this symmetrical respondeat superior preclusion pro-

vision into the nonparallel and non-respondeat supe-

rior context of constitutional tort claims. Instead of

the term of art, “same subject matter,” that had been

used in the 1940s to limit the reach of the judgment

bar to the same legal claim on which the Government

had waived its immunity in the FTCA, these courts

have improperly substituted the modern preclusion

language of “same transaction or occurrence” to reach

all claims that arose from the same set of events. See

Kremer v. Chemical Constr. Corp., 456 U.S. 461, 482

n.22 (1982) (“Res judicata has recently been taken to

bar claims arising from the same transaction even if

brought under different statutes ....”); Restatement

(Second) of Judgments § 24(1) (1980) (“[T]he claim

extinguished includes all rights . . . with respect to all

22

or any part of the transaction, or series of connected

transactions, out of which the action arose.”).

Under this novel and textually untethered read-

ing of the statute, when a case proceeds to judgment

on a common-law tort theory under the FTCA, the

judgment bars the plaintiff from maintaining a

factually related constitutional tort claim against an

individual federal officer under Bivens. See, e.g.,

Manning v. United States, 546 F.3d 430, 432-37 (7th

Cir. 2008); Estate of Trentadue ex rel. Aguilar v.

United States, 397 F.3d 840, 858-59 (10th Cir. 2005).

But this typically unexamined extension of Section

2676 to factually related claims asserted in the

Bivens context cannot be squared with the text,

history, and simple logic of the FTCA.

First, by its plain language, Section 2676 applies

only when the subsequent action against the em-

ployee is brought “by reason of the same subject mat-

ter” as was the prior judgment in the action against

the United States under the FTCA. When evaluating

whether two lawsuits have been brought “by reason

of the same subject matter,” the courts should inter-

pret the language Congress adopted not by reference

to modern ideas of supplemental jurisdiction or trans-

actional relationship but according to the meaning of

those terms at the time of their enactment. See Sosa

v. Alvarez-Machain, 542 U.S. 692, 704-08 (2004)

(determining congressional understanding of the

FTCA exception for a claim “arising in” a foreign

country by looking to the “sense of ‘arising in’ [that]

was the common usage in state borrowing statutes

23

contemporary with the Act” and by considering the

“object” of the provision in light of principles of sub-

stantive law. when the FTCA was enacted).

Importantly, Section 2676 does not enact a free-

standing preclusion provision, but rather forms an in-

tegral part of the Federal Tort Claims Act. In general,

the FTCA imposes liability on the Federal Government

according to principles of state tort law. Thus, the

most logical conclusion from the statutory context

is that phrase “same subject matter” in the statute

takes its meaning from the state tort law that is the

central theme and field of operation for the FTCA as

a whole. See Delehite, 346 U.S. at 28 (“Uppermost in

the collective mind of Congress were the ordinary

common-law torts.”).

As discussed in Part II.A, when the FTCA and its

judgment bar became law in 1946, non-mutual pre-

clusion doctrine treated an unsuccessful suit for

negligence against the employee as a bar to a subse-

quent action against the employer on the same theory

of negligence. See Restatement (First) of Judgments

§ 96 (1942). But this rule of non-mutual issue preclu-

sion did not apply when the first suit was brought

against the employer. Id. The FTCA’s judgment bar

corrects this asymmetric result by enabling the

Government employee to raise the prior Government

judgment as a bar to a second negligence suit, despite

the absence of mutuality.

While the statute supplemented the common law

of non-mutual preclusion to achieve a measure of

24

symmetry, the judgment bar applied only when the

judgment on the FTCA claim and the claim against

the employee were based on the same theory of tort

liability. Factual overlap between the two claims did

not alone trigger the application of the bar. Thus,

where the Government’s liability, based on the doc-

trine of respondeat superior, was derivative of that

of the employee, exoneration of the Government

(through a finding, say, of non-negligence) was tan-

tamount to exoneration of the employee. In that nar-

row situation, a judgment in the suit against the

Government would negate the liability of the employ-

ee and appropriately bar further litigation.

Where the Government succeeded on the basis of

a defense personal to the Government, however, the

judgment bar did not apply and the suit could proceed

against the employee. See Restatement (First) of

Judgments §99 (1942) (a “valid judgment on the

merits and not based on a personal defense bars

a subsequent action” in circumstances of vicarious

liability) (emphasis added). Thus, judgments for the

Government based upon a finding that an employee

was acting outside the scope of employment (thereby

rendering the respondeat superior liability of the Gov-

ernment inapplicable) were certainly “judgments” with-

in the meaning of the FTCA. But those judgments did

not foreclose an action against the employee because

they did not negate the employee’s liability. See, e.g.,

Government Emp. Ins. Co. v. Ziarno, 170 F. Supp.

197, 200 (N.D.N.Y..1959), rev'd on other grounds, 273

25

F.2d 64 (2d Cir. 1960); see generally Pfander &

Aggarwal, supra, 108 U. St. Thomas L.J. at 439-48.

Viewed in light of then-existing rules of preclu-

sion, Congress chose the “same subject matter” as a

term of art to limit the judgment bar’s application

to cases where tort issues arose in the vicarious

liability context and thus shared-an essential iden-

tity. See Molzoff v. United States, 502 U.S. 301, 307

(1992) (looking to the legal understanding during the

FTCA enactment period to define a legal term of art

incorporated into the statute). For Section 2676,

Congress borrowed the “same subject matter” phrase

directly from the 1942 Restatement, where it de-

scribed claims in which both the relevant facts and

the theory of liability were identical. See Restatement

(First) of Judgments §§ 70, 84 (1942).

For example, Restatement § 70 provides that legal

determinations made in litigation between the parties

are not conclusive “in a subsequent action on a differ-

ent cause of action, except where both causes of

action arose out of the same subject matter or trans-

action.” In explaining the construct, comment b

defines the same subject matter quite narrowly to ap-

ply to successive breach of contract claims on a single

contract, or successive suits for installments of inter-

est under a single contract or rental payments due

under a single lease. Jd. § 70 cmt. b. At the time,

these were regarded as different “causes of action”

because they arose from separate breaches of duty,

but they were nonetheless subject to preclusion

26

because the legal question at the heart of the two

claims was otherwise identical.

The requisite identity exists under the FTCA

only where the Government has accepted respondeat

superior liability and the basis on which the Govern-

ment’s liability was adjudicated bears on the viability

of the underlying claim against the employee. Claims

to which Section 2676 applies — again, claims arising

from “the same subject matter” — are claims based

on common-law theories of tort liability to which the

FTCA’s acceptance of respondeat superior liability

extends. See Hearings, supra, at 26-27 (“It is just and

desirable that the burden of redressing wrongs of this

character be assumed by the Government alone.”).

For that reason, Section 2676 has logical effect only

when the asserted liability of the employer is indeed

vicarious. But the Federal Government is not liable

in respondeat superior for a Bivens claim. Federal

Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484-86

(1994). That legal nullification of vicarious liability

interrupts the corresponding operation of the FTCA’s

judgment bar.

Applying the “same subject matter” test that

Congress incorporated into the FTCA, a constitutional

tort claim under Bivens simply does not arise from the

same source of state common law or follow the same

theoretical trajectory as that under the FTCA. Thus,

where a court rejects an FTCA claim on grounds that

shed no light at all on the viability of a factually

related Bivens claim, neither the statute’s text nor its

logic call for application of the judgment bar.

27

Consider the Seventh Circuit’s mistaken decision

in Williams v. Fleming, 597 F.3d 820, 823 (7th Cir.

2010). There, the finding that slander claims were not

cognizable as intentional torts under the FTCA did

not logically bar a wholly distinct constitutional tort

claim under Bivens for racial discrimination; the

claims were not brought “by reason of the same

subject matter.” But the Seventh Circuit nonetheless

found that the judgment bar was applicable, denying

the plaintiff a day in court on the race discrimination

claim. The court’s mistaken decision grew out of its

failure to recognize that the constitutional tort claim

did not arise from “the same subject matter” as a

common-law tort claim within the scope of the FTCA.

C. Federal Courts Can Effectively Coordi-

nate FTCA and Bivens Claims Without

the Blunt Instrument of the Judgment

Bar

By holding that the FTCA judgment bar does not

apply to Bivens litigation, this Court would reaffirm a

proper and properly limited interpretation of the lan-

guage Congress enacted. But in doing so, the Court

need not abandon the goal of securing the coordinated

resolution of parallel claims under the FTCA and

Bivens, a goal that doubtless animates some lower

court interpretations of the judgment bar.

Section 2676 offers a solution to only one very

modest problem of preclusion law: the problem of

asymmetric non-mutual issue preclusion in the context

28

of respondeat superior litigation. But this statutory

judgment bar does not otherwise supersede the

continued application of evolving common-law rules

of claim and issue preclusion.

Indeed, Section 2676 was drafted on the assump-

tion that those rules would continue to apply. Section

2676 was intended to fill a specific gap in the law of

non-mutual collateral estoppel at the time, not to

displace the general law of preclusion. In particular,

the FTCA judgment bar does not state that a prior

juligment against the employee with a finding of non-

negligence would preclude a subsequent suit against

the employer. That was not necessary to say in the

statute, as the 1940s-era law of preclusion already so

provided. Common-law preclusion rules of that period

would bar an action to impose vicarious liability on

the Government after a judgment exonerating the

primarily-liable employee whose act or omission gave

rise to the claim.

Nor does Section 2676 foreclose the use of the

single satisfaction rule as a limit on the ability of a

plaintiff to pursue separate awards against both the

Government and its employees. See Brooks v. United

States, 337 U.S. 49, 54 (1949); Restatement (Second)

of Judgments § 51 (1982); cf. 28 U.S.C. § 2672 (set-

tlement with the Government under the FTCA also

releases claims brought against employees by reason

of the same subject matter).

Lower courts. have successfully applied these

nuanced coordination tools to litigation under 42

29

U.S.C. § 1983 and can do so here once the Govern-

ment’s expansive account of the judgment bar has

been rejected. See generally Pfander & Aggarwal,

supra, 108 U. St. Thomas L.J. at 465-70.

Early decisions under the FTCA adopted pre-

cisely these forms of coordination both to ensure that

the plaintiff did not recover more than a single satis-

faction and to protect the plaintiff’s right to trial by

jury. See, e.g., Moon v. Price, 213 F.2d 794, 796-97 (5th

Cir. 1954) (plaintiff may pursue claims against both

the employee and the Government but may secure

only a single satisfaction; trial court drew upon jury

trial findings in assessing the Government’s liability

under the FTCA). Such coordination would protect

plaintiffs from astonishingly broad conceptions of the

preclusive effect of the judgment bar. See Manning v.

United States, 546 F.3d 430, 433 (7th Cir. 2008)

(retroactively invalidating a Bivens jury verdict on

the basis of the trial court’s subsequent rejection of an

FTCA claim).

Ill. Because Section 2680 Directs That the Pro-

visions of the FTCA “Shall Not Apply”

When a Case Falls Within an Exception to

the FTCA, Section 2676’s Judgment Bar Is

Then Retracted

For tort allegations that are precluded by the

statutory exceptions, the plain language of 28 U.S.C.

§ 2680 further confirms the inapplicability of the

judgment bar to such dismissals. Section 2680 sets

30

out the various exceptions to the FTCA and is pref-

aced with the directive that “[t]he provisions of this

chapter and section 1346(b) of this title shall not

apply to” the excluded types of claims. 28 U.S.C.

§ 2680.

This introductory text to the FTCA exceptions

directly negates the judgment bar. By retracting the

“provisions of this chapter” — which of course includes

Section 2676 — Section 2680 states unequivocally that

the judgment bar has no function when an exception

is applied. See Levin v. United States, 133 S. Ct. 1224,

1232 (2013) (holding that the phrase “shall not apply”

in the Gonzalez Act, 10 U.S.C. § 1089(e), states “in no

uncertain terms” that the intentional tort exception

to the FTCA does not apply to claims involving medi-’

cal personnel employed by certain agencies).

The Government's primary response (Pet. Br. at

48-50) is to bypass the FTCA as enacted in 1946 and

invoke a self-sufficient provision enacted four decades

later in 1988. Under the direct terms of the Federal

Employees Liability Reform and Tort Compensation

Act (Westfall Act), a remedy against the Federal

Government as an entity is broadly made “exclusive

of any other civil action or proceeding for money

damages” when a personal injury claim arises 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), with an express exception for a Bivens

constitutional action against an employee, id.

§ 2679(d)(2).

31

After the United States has taken the place of

the employee as defendant, the matter “shall proceed

in the same manner as any action against the United

States filed pursuant to section 1346(b) and shall be

subject to the limitations and exceptions applicable to

those actions.” Id. § 2679(d)(4). Thus, by the terms

of the Westfall Act itself, the action against the sub-

stituted United States goes forward as a matter of

course under the FTCA, subject to its exceptions.

United States v. Smith, 499 U.S. 160, 161-62 (1991).

The independent operation of the Westfall Act of

1988 according to its own terms and purpose sheds no

light on the parameters of the FTCA judgment bar of

1946 nor expands its modest preclusive effect.

S

CONCLUSION

The judgment bar, 28 U.S.C. § 2676, was de-

signed to achieve the modest goal of ensuring the

availability of non-mutual issue preclusion in favor of

Government employees after the Government had

been exonerated with a finding against negligence in

a proper Federal Tort Claims Act suit. Section 2676

was framed at a fairly high level of specificity to

foreclose not all subsequent litigation against em-

ployees, but only such subsequent claims that (1)

were brought against the employee by reason of the

“same subject matter,” that is, the same state law tort

theory, and (2) that had been resolved on the factual

merits in favor of the United States in a prior suit

32

that came inside the scope and outside the exceptions

of the FTCA.

Under Section 2676, the prior dismissal of the

respondent’s putative FTCA action does not preclude

the respondent’s subsequent Bivens action. The FTCa

action was neither one concluded by a judgment

“by reason of the same subject matter” nor one to

which the FTCA would apply. Accordingly, the ruling

of the Sixth Circuit should be affirmed.

Respectfully submitted,

GREGORY C. SISK

Counsel of Record

UNIVERSITY OF ST. THOMAS

SCHOOL OF LAW

1000 LaSalle Avenue

Minneapolis Minnesota 55403

(651) 962-4923

gcsisk@stthomas.edu

Counsel for Amici Curiae