Opposition Brief — Unus v. Kane (No. 09-294)

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Supreme Court, U.S.

FILED

DEC 18 2009 |

No. 09-294 (OFFICE OF THE CLERK

Jri the Supreme Court of the Anited States

AYSHA NUDRAT UNUS AND HANAA UNUS,

PETITIONERS

DAVID KANE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

BARBARA L. HERWIG

TEAL LUTHY MILLER

Attorneys

Department of Justice

Washington, D.C. 20580-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly upheld

summary judgment for the United States on petitioners’

common law tort claims under the Federal Tort Claims

Act (FTCA), 28 U.S.C. 1346(b), 2671 et seg., because

petitioners failed to establish that the federal agents

acted unreasonably under Virginia law in their execution

of a lawful search warrant at petitioners’ home.

2. Whether the court of appeals erred in applying

the FTCA’s judgment bar—which provides that a judg-

ment in an action under the FTCA “shall constitute a

complete bar to any action by the claimant, by reason of

the same subject matter, against the employee of the

government whose act or omission gave rise to the

claim,” 28 U.S.C. 2676—to preclude Bivens claims that

had been brought together in the same lawsuit as the

FTCA claim, an argument petitioners failed to raise be-

fore the court of appeals.

TABLE OF CONTENTS

Page

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Ph ko as heed Ee ee ee 8

CINE os ok boy woken we a en ee eee 24

TABLE OF AUTHORITIES

Cases:

Aetna Cas. & Sur. Co. v. United States, 570 F.2d 1197

(4th Cir.), cert. denied, 489 U.S. 821 (1978) .......... 20

Arevalo v. Woods, 811 F.2d 487 (9th Cir. 1987) ........ 22

Bivens v. Six Unknown Named Fed. Agents of the

Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ........ 5

Dalehite v. United States, 346 U.S. 15 (1953) ........... 19

Denson v. United States, 574 F.3d i318 (11th Cir.

coe Rec See ea a ee eee 21

Denver Justice & Peace Comm., Inc. v. City of

Golden, 405 F.3d 923 (10th Cir. 2005), cert. dis-

missed, 646. U.S. 1346 (2006) ow... cc cece cctetes ces 15

Estate of Trentadue ex rel. Aguilar v. United States,

S37 F Sa G40 (IGA Civ. BGS) oo nc ccc esses cseueces R

Galvin v. Hay, 374 F.3d 739 (9th Cir. 2004) ............ 12

Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994),

cert. denied, 515 U.S. 1144 (1995) .................. 23

Gilman v. United States, 206 F.2d 846 (9th Cir. 1953),

att'd, 347 US. GOT ISG) ind cs i vascccvedacavess Open

Harris v. Commonwealth, 400 S.16.2d 191 (Va. 1991) .... 10

Harris v. United States, 422 F.3d 322 (6th Cir. 2005) ... 21

Huddleston v. Dwyer, 322 U.S. 232 (1944)

(IIT)

Cases—Continued: Page

Jordan v. Shands, 500 S.f.2d 215 (Va. 1998) ........... 10

Koffman v. Garnett, 574 S.E.2d 258 (Va. 2003) ......... 10

Kreines v. United States, 959 F.2d 834 (9th Cir.

a a ea ee UN ca ee se earn es 18, 21, 22

Lewis v. Commonwealth, 493 S.E.2d 397 (Va. App.

MC hea oe ea eee ee eo ae Acew ay 7; 30,4)

Manning v. United States:

546 F.3d 430 (7th Cir. 2008), cert. denied, 1308. Ct.

Ss PEt ror eer xe VRE SRA EES eee Ee eS) 21

SO Os a Wk ke ee eM oe nes keen 24

Michigan v. Summers, 452 U.S. 692 (1981) ............ 12

Muehler v. Mena, 544 U.S. 93 (2005) ........ 11, 12, 18, 14

Rayonier Inc. v. United States, 352 U.S. 315 (1957)... . . 19

Richards v. United States, 369 U.S. 1 (1962) ............ 9

Rodriguez v. Handy, 873 F.2d 814 (5th Cir. 1989) ...... 21

Tekle v. United States, 511 F.3d 839 (9th Cir. 2007) ..... 15

United States v. Gilman, 347 U.S. 507 (1954) ... 2... 19, 20

United States v. Lushbough, 200 F.2d 717 (8th Cir.

oe see Geer ua ete e Urea eka ae 20

United States v. Olson, 546 U.S. 48 (2005) .............. 9

United States v. United Foods, Ince., 5383 U.S. 405

CE a res ee See CE Eee 16

Wisniewski v. United States, 353 U.S. 901 (1957) .... 2. . 22

Constitution and statutes:

U.S. Const.:

a nnn: Bye

RE ne ke kb es sea eee ee passim

Statutes—Continued: Page

Federal Employees Liability Reform and Tort Com-

pensation Act of 1988, Pub. L. No. 100-694,

RE SR re eer ere ae 2

Federal Torts Claims Act 28 U.S.C. 1346(b), 2671

a eed ek eae sk ase eee RA ee eee Re <7

IER) i voc cbs des esa beeudae es 2,9

Re ga beck se ga ¥cccduineeeteswuwues 2

INN a6 oak 5 oN GS 8:4 o-e ade passim

ee oS Oo ee eae ewer 2

28 U.S.C. SOTO AZNMA) 2. cc cere ce cc casceses 3, 20

ee EE os Go soos s besa ewan dana eeees 2

OD opin od se oe eek s kao ike ee eee 2

Cal. Penal Code § 847(b)(1) (West 2008)

Miscellaneous:

Eugene Gressman et al., Supreme Court Practice

(9th ed. 2007) ....... ae ak eae x ewe OE aee

In the Supreme Court of the Anited States

No. 09-294

AYSHA NUDRAT UNUS AND HANAA UNUS, PETITIONERS

DAVID KANE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-56a)

is reported at 565 F.3d 108. The opinions of the district

court (Pet. App. 57a-78a, 79a-80a, 81a-102a, 108a) are

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 6, 2009. On July 27, 2009, the Chief Justice ex-

tended the time within which to file a petition for a writ

of certiorari to and including September 3, 2009, and the

petition was filed on that date. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Federal Tort Claims Act (FTCA), 28 U.S.C.

1346(b), 2671 et seqg., provides a limited waiver of sover-

(1)

eign immunity for claims against the federal government

based on “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. 1346(b)(1).

The FTCA permits suit against the United States “un-

der circumstances where the United States, if a private

person, would be liable to the claimant in accordance

with the law of the place where the act or omission oc-

curred.” 28 U.S.C. 1346(b)(1). See 28 U.S.C. 2674 (mak-

ing United States liable “in the same manner and to the

same extent as a private individual under like circum-

stances”).

The F'T'CA places a variety of limits on the United

States’ waiver of its immunity. For example, the F°'CA

excludes from the waiver of immunity claims arising out

of the exercise of a discretionary function. 28 U.S.C.

2680(a). In addition, the FTCA’s judgment bar, 28

U.S.C. 2676, protects the government from the need to

defend multiple actions against itself and the federal

employee whose acts gave rise to the injury. The

FTCA’s judgment bar provides that “[t]he judgment in

an action under [the FTCA] shall constitute a complete

bar to any action by the claimant, by reason of the same

subject matter, against the employee of the government

whose act or omission gave rise to the claim.” /brd.

In 1988, Congress enacted the Federal Employees

Liability Reform and Tort Compensation Act of 1988

(Westfall Act), Pub. L. No. 100-694, 102 Stat. 4568,

which makes an action against the United States under

the FTCA the plaintiff's sole remedy for most claims. 28

U.S.C. 2679(b)(1). If the plaintiff sues a federal em-

ployee for acts within *he scope of his employment, the

United States is substituted as the defendant and the

suit proceeds as one under the FTCA. 28 U.S.C.

2679(d)(1). Congress made an exception to the Westfall

Act’s exclusivity and substitution provisions for claims

against employees for violating the Constitution. 28

U.S.C. 2679(b)(2)(A). The FTCA’s judgment bar, how-

ever, contains no such exception.

2. In March 2002, as a part of an extensive, multi-

agency investigation of a group of organizations and

persons suspected of supporting international terrorism,

federal investigators obtained a search warrant for a

number of locations, including the home of Dr. Iqbal

Unus. Pet. App. 3a. The affidavit supporting the war-

rant explained that many of the organizations had over-

lapping leadership comprised of persons suspected of

supporting terrorism. /d. at 7a. The affidavit detailed

transactions among the organizations, including entities

in which Dr. Unus held positions, which seemed to serve

no fogical business or charitable purpose, and it ex-

plained that. efforts to trace the funds through overseas

transactions had met a dead end. /d. at 6a-8a. The war-

rant authorized agents to seize from Dr. Unus’s home

certain items that might be evidence of money launder-

ing, tax evasion and extending material] support to ter-

rorists abroad. /d. at 9a.

Federal agents arrived at Dr. Unus’s home to exe-

cute the warrant at approximately 10:30 a.m. Pet. App.

%a. The lead agent pounded on the front door and or-

dered the occupants to open it. /b¢d. Petitioner Aysha

Unus (Dr. Unus’s wife) was in the living room at the

rear of the house, and petitioner Hanaa Unus (one of the

Unus’s daughters) was sleeping upstairs. /bid. Aysha

Unus heard the pounding on the door and a voice order-

ing her to open it. /bid. She moved toward the door,

coming within about 15 feet of it, and saw a gun through

a side window. /bid. The agents saw her through the

side window come toward the door and then, in response

to the demand that she open the door, “run ‘down the

hallway to the back of the house’” without opening it.

Id. at 27a.

Aysha Unus began screaming for Hanaa Unus and

moved toward a door at the back of the house. Pet. App.

10a. Hanaa Unus came down the stairs and joined

Aysha Unus at the back of the house, where they began

to place a phone call. /bic'. The agents then broke down

the front door with a battering ram. /bid. The agents

came into the room, at least one with a gun drawn, and

ordered the women to drop the phone and put their

hands up. /bid. The agents encountered “hectic condi-

tions” on entry; there was “‘excitement’ in [ petitioners’ |

voices, and [petitioners] were ‘clearly concerned and

worried and agitated,’” to the extent that their behavior

suggested to the agents that there was some “possibility

that [petitioners] would take some action that would

make an unstable situation.” /d. at 32a. The agents or-

dered petitioners to sit on couches in the living room and

handcuffed them with their hands behind their backs.

Id. at 10a.

The agents then began to search the premises. Dur-

ing the search, petitioners remained handcuffed for

nearly four hours. Pet. App. 32a. The agents “reas-

sessed the situation as the search progressed,” moving

the handcuffs to the front to make petitioners more com-

fortable, allowing them to use the restroom, and allow-

ing Aysha Unus to self-administer her diabetes medica

tion. /d. at 10a, 33a. Around 2 p.m., petitioners in

formed the officers that they were obliged to perform

afternoon prayers, in accordance with their Muslim

faith. Jbid. An agent removed their handcuffs, allowing

them to perform their prayers. /bid. The agents did

not allow petitioners to pray outside of the presence of

male agents, or allow petitioners to wear head scarves or

cover their hands while the male agents were present, or

while being photographed. /d. at lla. After petitioners

concluded their prayers, they were not handcuffed

again, but remained confined to the living room for the

duration of the search. Jbid. At the conclusion of the

search, the agents left petitioners with a copy of the

warrant and a written inventory of the items seized.

Ibid.

3. Petitioners brought suit against the agents, as-

serting claims for common law torts of assault-and-bat-

tery and false imprisonment as well as constitutional

claims under Bivens v. Sic Unknown Named Federal

Agents of the Federal Bureau of Narcotics, 403 U.S. 388,

389 (1971), for asserted violations of petitioners’ rights

under the First and Fourth Amendments to the United

States Constitution. Pet. App. lla-13a.' The United

States was substituted as defendant on the common law

tort claims. /d. at 18a. Those claims were initially dis-

missed for failure to exhaust administrative remedies;

after exhausting those remedies, petitioners refiled

their claims under the FTCA as part of an amended

complaint. /d. at 18a-20a.

On February 3, 2006, the district court dismissed peti-

tioners’ Fourth Amendment Bivens claim on the ground

that the individual defendants were entitled to qualified

immunity. Pet. App. 73a-74a, 76a. The court held that

it was not clearly established that the agents’ conduct in

detaining and handcuffing petitioners during the execu-

' Petitioners also sued the agent whose affidavit supported the

search warrant and another individual who had provided information in

support of the affidavit. Pet. App. 5a, 12a-13a. Those claims were dis-

missed, 7d. at 13a-15a, and are not at issue in the petition.

tion of the search warrant would violate petitioners’ con-

stitutional rights. /d. at 73a-74a. The court later dis-

missed petitioners’ First Amendment Bivens claims on

statute of limitations grounds. See 2d. at 20a.

On November 2, 2007, the district court granted sum-

mary judgment in favor of the United States on petition-

ers’ FTCA tort claims. Pet. App. 8la-103a. The court

explained that there was no genuine issue of material

fact with regard to the reasonableness of the federal

agents’ actions during the search, and that summary

judgment was therefore appropriate. /d. at 97a-98a,

101a-102a. After holaing for the United States on the

K’TCA claims, the court denied petitioners’ motion to

reconsider the dismissal of petitioners’ First Amend-

ment Bivens claims on statute of limitations grounds.

The court concluded that its grant of summary judgment

to the United States on the FTCA claims “moot[ed] any

issue * * * whether or not any of the individual defen-

dants should be in this case.” /d. at 101la.

4. The court of appeals affirmed. Pet. App. la-56a.

As relevant here, petitioners argued that the district

court erred in granting summary judgment to the

United States on their FTCA claims for assault-and-bat-

tery and false imprisonment, and that the judgment bar

did not apply to their First Amendment Bivens claim

because that claim did not arise out of the same subject

matter as their FTCA claims. The court of appeals re

jected those arguments.

The court observed that petitioners’ FTCA claims

were governed by “the substantive law of the state

where the alleged tort took place: in this case, the law

of the Commonwealth of Virginia.” Pet. App. 24a. The

court determined that, under Virginia law, petitioners’

false imprisonment and assault and battery claims would

each fail if the restraint on liberty or unwanted touching

was legally justified. Jd. at 24a-25a. Police officers’ use

of force or restraint is justified, under state law, if “rea-

sonable” in “execut{ing] their lawful duties.” /d. at 25a.

Thus, the court characterized the central question as

whether “the federal agent defendants acted reasonably

under Virginia law.” Jbid.

The court noted that, in a criminal case, the Virginia

Supreme Court had stated that an “officer’s conduct in

executing a search warrant is judged in terms of its rea-

sonableness within the meaning of the fourth amend-

ment to the United States Constitution and Article I,

§ 10 of the Constitution of Virginia.” /b¢d. (quoting

Lewis v. Commonwealth, 493 S.E.2d 397, 399 (Va. App.

1997)). Noting the priority of officer safety under Vir-

ginia law, id. at 26a, the court concluded that the federal

agents acted reasonably in the execution of the search

warrant. The court observed that the agents “were exe-

cuting a facially valid search warrant” that authorized

them to search for financial documents relating to fi-

nancing of international terrorism. /d. at 30a-3la. The

Court also concluded that, even though they were

“searching for financial documents only,” the agents

acted reasonably in handcuffing petitioners for a period

of slightly less than four hours during the search be-

cause the search was being conducted “at a residence

believed to contain evidence of money laundering by

entities suspected of assisting international terrorism,”

where, “[vliewed objectively, [they] did not know whe-

ther they would be confronted by resistance,” and be-

cause they encountered “hectic conditions” upon entry

that suggested that there was a “possibility that | peti-

tioners| would take some action that would make an un-

stable situation.” /d. at 3la-32a.

Finally, the court rejected petitioners’ argument that

the FTCA judgment bar did not preclude their Bivens

claims because those claims “are predicated on different

conduct and allege distinet injuries from the FTCA

claims.” Pet. App. 35a. The court rejected that narrow

construction of the judgment bar, holding that it pre-

cludes all Bivens claims “arising out of the same actions,

transactions, or occurrences” as the FTCA claim. /b6id.

(quoting Estate of Trentad2 ex rel. Aguilar v. United

States, 397 F.3d 840, 858 (10th Cir. 2005)). The court

‘xplained that the FTCA claims and Bivens claims

“arose out of the ‘same subject matter’ * * * —the exe-

cution of the Warrant—by the ‘employee of the govern-

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

at 36a (citation omitted). The FTCA judgment therefore

barred petitioners’ Bivens claims based on the execution

of the warrant. /bid.

ARGUMENT

Petitioners ask this Court (Pet. 9-21) to determine

whether the federal agents’ conduct in executing the

search warrant violated petitioners’ Fourth Amendment

rights. That issue is not directly presented here. The

court cf appeals addressed whether “the federal agent

defendants acted reasonably under Virginia law,” Pet.

App. 25a, a question of state law that does not warrant

this Court’s review. The court of appeals’ consideration

of the Fourth Amendment was subsumed entirely in

resolving the reasonableness of the agents’ actions un-

der state law. The court’s analysis of that question was

correct and does not conflict with any decision of this

Court or another court of appeals. Petitioners also seek

this Court’s review (Pet. 21-25) of the question whether

the judgment on an FTCA claim can bar a Bivens claim

asserted within the same suit. Petitioners did not raise

that argument in the cour: of appeals and should not be

permitted to raise it for the first time before this Court.

In any event, the court of appeals’ application of the

judgment bar is correct, and petitioners overstate the

extent of any circuit conflict. Review by this Court is

therefore unwarranted.

1. Petitioners mischaracterize the court of appeals

as having ruled, “[w]ith respect to petitioners’ Fourth

Amendment claim,” that the federal agents’ actions were

constitutional. Pet. 5. The court of appeals did not rule

on the merits of petitioners’ Fourth Amendment claim,

which was asserted only against the individual agents,

holding instead that that claim was precluded by the

FTCA’s judgment bar. Pet. App. 36a. The part of the

court of appeals’ decision cited by petitioners as ad-

dressing their “Fourth Amendment claim,” see Pet. 5-7

(quoting Pet. App. 30a-33a), was in fact an analysis of

petitioners’ “false imprisonment and battery claims,”

Pet. App. 28a, under Virginia law, as made applicable

under the FTCA, 2d. at 24a-25a. The court of appeals’

resolution of that state law question was correct and

does not warrant this Court’s review.

a. Because the FTCA makes the United States’ lia-

bility turn on “the law of the place where the act or

omission occurred,” 28 U.S.C. 1346(b)(1), the relevant

question is whether “local law would make a ‘private per-

son’ liable in tort.” United States v. Olson, 546 U.S. 48,

44 (2005) (quoting 28 U.S.C. 1346(b)(1) (emphasis omit-

ted)). See Rzchards v. United States, 369 U.S. 1, 5, 11

(1962) (United States’ liability under the FTCA turns on

State tort law). Consistent with that principle, the court

of appeals correctly recognized that petitioners’ false

imprisonment and assault and battery claims were gov-

erned by “the substantive law of * * * the Common-

wealth of Virginia.” Pet. App. 24a. Under Virginia law,

it is neither false imprisonment nor assault or battery

for a police officer to restrain one’s liberty or engage in

unwanted touching if the officer’s conduct was legally

justified. /d. at 24a-25a (citing Jordan v. Shands, 500

S.E.2d 215, 218 (Va. 1998), and Koffman v. Garnett, 574

S.E.2d 258, 261 (Va. 2003)). Because police officers’ use

of force or restraint is justified, under Virginia law, if

“reasonable” in “execut[ing] their lawful duties,” zd. at

25a, the court correctly characterized the central ques-

tion in petitioners’ appeal as whether “the federal agent

defendants acted reasonably under Virginia law,” 2b7d.

The court of appeals’ discussion of this Court’s

Fourth Amendment precedent, see Pet. App. 28a-33a,

took place entirely within this framework of Virginia’s

common law torts of false imprisonment and battery, id.

at 28a. While the court of appeals noted that, in a crimi-

nal case, the Virginia Supreme Court had stated that an

“officer’s conduct in executing a search warrant is

judged in terms of its reasonableness within the mean-

ing of the fourth amendment to the United States Con-

stitution and Article I, § 10 of the Constitution of Vir-

ginia,” Pet. App. 25a (quoting Lewis v. Commonwealth,

493 S.E.2d 397, 399 (Va. App. 1997)), that does not

transform the legal question whether “the federal agent

defendants acted reasonably under Virginia law,” z2b2d.,

into a question of federal constitutional law that this

Court should review. Notably, the court of appeals be-

gan its analysis of the state-law reasonableness inquiry

with the premise “that Virginia has recognized that ‘the

safety of the officer when conducting his duties is of par-

amount importance,’” 7d. at 26a (quoting Harris v. Com-

monwealth, 400 S.E.2d 191, 194 (Va. 1991)). Likewise,

in assessing the reasonableness of the agents’ actions in

forcing entry into petitioners’ home with respect to that

aspect of petitioners’ assault claim, the court again re-

lied on Virginia law with respect to when such a forceful

entry is reasonable. /hid. (quoting Lewis, 493 S.EF.2d at

399).

This Court does not generally review a federal court

of appeal’s determination of a question of state law.

Huddleston v. Dwyer, 322 U.S. 232, 237 (1944); see Eu-

gene Gressman et al., Supreme Court Practice § 4.10, at

261 (9th ed. 2007). Although, in this case, the court of

appeals looked to federal constitutional law as instruc-

tive of the state law inquiry of legal justification and

reasonableness, Pet. App. 29a-3la, that discussion, as

described above, was filtered through the lens of Vir-

ginia’s emphasis on officer safety. Moreover, because

the ultimate question is whether “the federal agents

acted reasonably under Virginia law,” 7d. at 25a, this

Court would have to consider whether the officer’s con-

duct, even if ultimately determined to have been uncon-

stitutional, was nonetheless reasonable in light of the

law as it existed at the time of their conduct. Notably,

petitioners’ arguments in support of certiorari (Pet. 10-

13) rely heavily on an analysis of this Court’s decision in

Muehler v. Mena, 544 U.S. 98 (2005), a decision that

post-dates the conduct at issue here by three years. As

the district court observed in dismissing petitioners’

Fourth Amendment Bivens claims, the agents reason-

ably believed their conduct was permissible at the time

of their actions. Pet. App. 72a. In an analogous situa-

tion, the Ninth Circuit upheld dismissal of a plaintiff's

FTCA false arrest claim under California law, even

though the arrest was later determined to have violated

the plaintiffs First Amendment rights, because the offi-

eer’s conduct “was not a vioiation of clearly established

law” at the time, Galvin v. Hay, 374 F.3d 739, 758

(2004), and the officers therefore “had reasonable cause

to believe the arrest was lawful,” ibzd. (quoting Cal. Pe-

nal Code § 847(b)(1) (West 2008)).

Even if petitioners were correct that the court of ap-

peals’ analysis of Muehler was in tension with other

courts of appeals, but see pp. 15-16, znfra, the Court

should address that issue in a case in which the Fourth

Amendment question is cleanly presented, not where, as

here, the Fourth Amendment is relevant only to the ex-

tent 't sheds light on a question of state law—whether

“the federal agent defendants acted reasonably under

Virginia law” such that their actions were “justified”

within the meaning of Virginia false imprisonment and

battery law. Pet. App. 24a-25a.

b. The court of appeals’ decision was, in any event,

correct and does not, contrary to petitioners’ conten-

tions (Pet. 12-14, 16-21), conflict with this Court’s deci-

sion in Muehler or decisions of the Ninth and Tenth cir-

cuits. Further review of the court of appeals’ application

of this Court’s precedent to the particular facts of this

case is not warranted.

i. The court of appeals correctly concluded that fed-

eral agents acted reasonably in detaining petitioners

incident to the search of their residence for evidence

related to a terrorism investigation and in handcuffing

petitioners for slightly less than four hours. To the ex-

tent the Fourth Amendment was relevant to the avail-

ability of a cause of action under state law, the court of

appeals recognized Michigan v. Summers, 452 U.S. 692

(1981), and Muekhler v. Mena, 544 U.S. 93, 99-100 (2005),

as the leading authorities and correctly observed that,

under those decisions, the propriety of handcuffing indi-

viduals detained during a search depends on whether

“the governmental interests” in handcuffing “outweigh

the marginal intrusion” it imposes. Pet. App. 3la (quot-

ing Muehler, 544 U.S. at 99-100); see id. at 29a

(“[iJnherent in Summers’ authorization to detain an oc-

cupant of the place to be searched is the authority to use

reasonable force to effectuate the detention,” including

handcuffs) (quoting Muehler, 544 U.S. at 98-99).

The court of appeals concluded that, under the par-

ticular facts and circumstances of this case, the agents

acted reasonably in detaining petitioners incident to the

search and in imposing the additional inirusion of

handcuffing them during part of the search. Although

the agents were searching for “financial documents

only—and not for either weapons or persons—a reason-

able officer would have had legitimate safety concerns

under the[] circumstances.” Pet. App. 3la. The court

noted that the agents were executing the warrant “at a

residence believed to contain evidence of money laun-

dering by entities suspected of assisting international

terrorism,” which meant that, “[vJjiewed objectively, the

agents did not know whether they would be confrented

by resistance.” /d. at 3la-32a. In that context, and in

light of petitioners’ “excitement” and “agitated” state

when the agents entered the residence, the agents acted

reasonably by initialiy handcuffing petitioners. /d. at

32a. Nor, in light of petitioners’ behavior at the time of

entry, did the officers act unreasonably in keeping peti-

tioners in handcuffs while the agents executed the

“terrorism-related warrant.” /bid. The court stressed

that the agents had moved the handcuffs from the back

to the front to make petitioners more comfortable and

later, after reassessing the situation, removed the hand-

cuffs entirely. /d. at 32a-33a.

Contrary to petitioners’ arguments (Pet. 12), Sum-

mers and Muehler do not authorize restraint of an occu-

pant during execution of a search warrant “only in the

context of searches for contraband.” Pet. 13. Although

the facts of Summers and Muehkler involved searches for

contraband, they stand for the broacor proposition that

the governmental interests in detaining and handcuffing

the occupants of a location while it is searched can, in

appropriate circumstances, outweigh the intrusion on

the individual’s liberty. Neither decision holds that con-

traband searches are the only context in which such con-

straints are appropriate. While Justice Kennedy’s con-

curring opinion observed that “police handeuffing dur-

ing searches” should “become[] neither routine nor un-

duly prolonged,” Muehler, 544 U.S. at 102, he recog-

nized that concerns for officer safety, the risk of inter-

ference, and delay of the search are all relevant factors

in assessing the reasonableness of the use of handcuffs.

Id. at 103. Justice Kennedy urged that the passage of

prolonged time “require[s]} revisiting the necessity of

handcuffing,” zb¢d., which is precisely what happened

here, where petitioners were initially handcuffed behind

their backs, later handcuffed in front, and later freed

from nandcuffs altogether when the agent in charge

deemed the situation warranted it. Pet. App. 32a-338a.

Neither Summers nor Muehler precludes the possi-

bility that significant governmental interests—such as

guarding against potentia! dangers posed by the subject

of the search’s ties to violent terrorist organizations, or

by the particular circumstances of resistance that the

officers on the scene confront—might make it reason-

able for agents to detain and handcuff the occupants of

a house during the execution of a warrant. The court of

appeals’ holding does not conflict with this Court’s pre-

cedent, and no further review is warranted.

ii. For similar reasons, the court of appeals’ decision

also does not conflict with decisions of the Ninth and

Tenth Circuits identified by petitioners. See Pet. 16-21

(citing eases). The subject-matter of the search of

course is relevant to deciding whether the governmental

interest in controlling the scene of the search through

handcuffing the occupants of the search location out-

weighs the burdens imposed on those individuals. And,

contrary to petitioners’ arguments, the court of appeals

in this case did not hold “that it made no difference that

the officers were executing a warrant seeking financial

records, as opposed to contraband,” Pet. 21: rather, the

court recognized the significance of the fact that the

evidence the officers were seeking consisted of financial

records related to “entities suspected of assisting inter-

national terrorism.” Pet. App. 3la-32a. Petitioners dis-

agree with the lower courts’ conclusion that officers in

the federal agents’ situation would have reason to be

concerned for their safety and their control of the search

scene while executing a warrant relating to terrorism

financing. But nothing in the decisions from the Ninth

and Tenth Circuits upon which petitioners rely suggests

that those courts would refuse to consider whether a

search might, under particular circumstances, present

a sufficient threat to governmental interests to justify

detention and handcuffing even though the search was

not for contraband. Like the Fourth Circuit, the Ninth

and Tenth Circuits recognize that the reasonableness of

detention pursuant to search, including handcuffing,

must be assessed in light of the circumstances of the

case. See Tekle v. United States, 511 F.3d 889, 849-850

(9th Cir. 2007); Denver Justice & Peace Comm., Ine. v.

City of Golden, 405 F.3d 923, 929, 929-931 (10th Cir.

2005), cert. dismissed, 546 U.S. 1146 (2006). Neither the

Ninth nor the Tenth Circuit has addressed the reason-

ableness of handcuffing in circumstances such as those

in this case. Nor is there any need for this Court to re-

view the court of appeals’ analysis of Fourth Amend-

ment precedent on the particular facts of this case, par-

ticularly because the Fourth Amendment analysis was

solely in aid of the ultimate question whether “the fed-

eral agent defendants acted reasonably under Virginia

law.” Pet. App. 25a.

2. Petitioners also contend (Pet. 21-25) that the

court of appeals erred in “holding that the FTCA’s judg-

ment bar applies to the dismissal of individual claims in

the same suit” as a claim against the United States un-

der the FTCA. Pet. 22. See Pet. 24 (citing conflict re-

garding whether “the judgment bar applies to contem-

poraneous Bivens claims”). Petitioners did not raise

that argument in the court of appeals. Review of peti-

tioners’ second question presented is therefore unwar-

ranted. See United States v. United Foods, Inc., 533

U.S. 405, 416-417 (2001) (petitioner should not be heard

to “assert new substantive arguments attacking, rather

than defending, the judgment when those arguments

were not pressed in the court whose opinion we are re-

viewing”).

A. Before the court of appeals, petitioners only chal-

lenged application of the judgment bar to their First

Amendment claim, arguing that “{petitioners’] First

Amendment claims do not relate to the ‘same subject

matter’ as |[petitioners’| common law claims that were

dismissed on summary judgment.” Appellants’ Reply

Br. 4 (quoting 28 U.S.C. 2676).° Petitioners went on to

argue that “(t]he subject matter of [petitioners’] First

Amendment claims is violation of their rights to freely

exercise their religion” in connection with their prayers,

whereas “the subject matter of [petitioners’] common

law clz ns [was] the agents’ assault, battery and impris-

onment. of [petitioners] in handcuffs.” /bid. Because,

petitioners maintained, the First Amendment claims

stemmed from different “actions” and different “inju-

ries,” the judgment bar should not apply. /bid. Peti-

tioners did not contend, as they do in this Court, that the

fact that the Bivens and FTCA claims were litigated in

the same suit rendered the judgment bar inapplicable,

Pet. 22.

The court of appeals addressed the argument peti-

tioners advanced, 2.e., that their Bivens claims were

“predicated on different conduct and allege distinct inju-

ries from the FTCA claims,” Pet. App. 35a, and properly

rejected petitioners’ attempt to narrow the reach of the

judgment bar in that fashion. The court recognized that

“(ijn order for § 2676 to have effect, it must encompass

all of the claims that could have been brought with re-

gard to the conduct at issue against the responsible ‘em-

ployee of the government.” /bid. (quoting Section

2676); see 7d. at 34a-35a (Bivens claims are “by reason

of the same subject matter” so long as they “aris[e] out

of the same actions, transactions, or occurrences” as an

FTCA claim). Because “the district court properly

awarded summary judgment to the United States on the

ITCA claims,” and “[|t]hose claims arose out of the

‘same subject matter’ as the * * * Bivens subclaims,”

“ Petitioners did not address the judgment bar in their opening Brief

of Appellants.

th> <“:vens claims were precluded under Section 2676 by

“the court’s summary judgment award on the FTCA

claais.” Jd. at 36a (quoting 28 U.S.C. 2676).

Petitioners do not contend that the court of appeals’

holding with respect to the “same subject matter” re-

quirement conflicts with any decision of this Court or of

any other court of appeals. Rather, petitioners urge this

Court to addresss a different issue, whether “the

FTCA’s judgment bar applies to the dismissal of individ-

ual claims in the same suit” or is instead “limited to the

dismissal of FTCA claims in a separate action.” Pet. 22.

Petitioners urge that “[t]he Sixth and Seventh Circuits

expressly rejected the Ninth Circuit’s holding in

Kreines [v. United States, 959 F.2d 834 (1992),| and

found that the judgment bar applies to contemporaneous

Bivens claims regardless of who prevails on the FTCA

claim.” Pet. 24. Notably, petitioners do not contend

that the court of appeals’ decision in this case expressly

rejected Kreines, which petitioners’ court of appeals

briefs did not cite, or that the decision below even men-

tioned that purported circuit conflict. Petitioners should

not be permitted to attack the court of appeais’ decision

in this Court based on a new argument that it failed to

raise below.

B. In any event, the court of appeals was correct to

apply the judgment bar in this case, even though the

Bivens and FTCA claims were brought in the same suit,

and there is no clear conflict among the courts of ap-

peals on that issue that would warrant this Court’s re-

view even if the question were properly presented in this

case.

i. The FTCA grew out of “a feeling that the Govern

ment should assume the obligation to pay damages for

the misfeasance of employees in carrying out its work.”

Dalehite v. United States, 346 U.S. 15, 24 (1953), par-

tially overruled on other grounds by Rayonier Inc. v.

United States, 352 U.S. 315 (1957). Before the FTCA’s

enactment, parties injured by a government employee’s

actions were forced to seek relief through private bills

in Congress, zbid., or by suing the government employee

in his individual capacity, United States v. Gilman, 347

U.S. 507, 511 n.2 (1954) (quoting testimony of Assistant

Attorney General Francis M. Shea). Such suits consti-

tuted “a very real attack upon the morale of the ser-

vices” because most government employees were “not in

a position to stand or defend large damage suits.” /hid.

They also represented a burden on government re-

sources, because “the Government, through the Depart-

ment of Justice, [was] constantly being called on * * *

to go in and defend” federal employees from suit. /bid.

Since the I’T'CA’s enactment, the judgment bar has

been an integral part of the statutory scheme. Section

2676 provides that “[t|]he judgment in an action under

[the FTCA] shall constitute a complete bar to any action

by the claimant, by reason of the same subject matter,

against the employee of the government whose act or

omission gave rise to the claim.” 28 U.S.C. 2676. In

other words, once the FTCA action is the subject of a

judgment, that judgment cuts off the claimant's ability

to pursue relief against government employees individu-

ally. By enacting the FTCA, Congress offered plaintiffs

the opportunity, subject to certain limits, to sue a finan-

cially responsible defendant. Through the judgment

bar, Congress ensured that, if a claimant chose to pur-

sue an FTCA action against the United States, the judg-

ment in that suit would protect federal employees

against the threat and distraction of litigation, and pro

tect as well the government from having to expend its

resources defending against further litigation arising

out of the same incident. See Gilman, 347 U.S. at 51]

n.2.

Consistent with the provision’s purposes, the courts

of appeals have uniformly acknowledged that the judg-

ment bar applies even when the plaintiff brings her

claims against the United States and claims against the

individual federal employee in a single lawsuit, Numer-

ous courts had so recognized before enactment of the

Westfall Act in 1988, when federal employees could still

be sued for common law torts committed within the

scope of their employment. See, e.g., Aetna Cas. & Sur.

Co. v. United States, 570 F.2d 1197, 1201 (4th Cir.) CLA]

judgment against the United States would automatically

bar the entry of any contemporaneous or subsequent

judgment against [the government employees].”), cert.

denied, 439 U.S. 821 (1978); Gilman v. United States,

206 F.2d 846, 848 (9th Cir. 1953) (“[T]he moment judg-

ment was entered against the Government, then by vir

tue of § 2676 * * * the employee [who had been

impleaded] was no longer primarily answerable to the

claimant,—he was not answerable at all.”), aff'd, 347

U.S. 507 (1954); United States v. Lushbough, 200 F.2d

717, 721 (8th Cir. 1952) (“The District Court, having

awarded a judgment in favor of [plaintiff] in his action

aguinst the United States, could not in the face of the

explicit provisions of [Section 2676] order judgment

against [the government employee] in favor of [the

plaintiff] in the same action.”).

The courts of appeals have continued to apply that

rule after the Westfall Act’s adoption. Although Con-

gress excepted Bivens claims from the Westfall Act’s

exclusivity and substitution provisions, 28 U.S.C.

2679(b)(2)(A), it made no such exception to the judgment

bar, as to which Congress’s concern about defending

multiple claims against the United States and individual!

employee defendants remains the same. And the courts

of appeals have continued to apply the judgment bar

when plaintiffs join in a single suit their FTCA claims

against the United States and Bivens claims against

federal employees individually. See, e.g., Manning v.

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

130 8S. Ct. 552 (2009); Harris v. l/nited States, 422 F.3d

322, 334 (6th Cir. 2005) (“In accordance with the consis-

tent application of the judgment bar over the fifty years

since its enactment, we have held that [Section 2676]

applies even when the claims were tried together in the

same suit.”) (quotation marks and citation omitted); #’s-

tate of Trentadue ex rel. Aguilar v. United States, 397

F.3d 840 (10th Cir. 2005) (applying Section 2676 to bar

a Bivens judgment entered prior to the FTCA judgment

in the same suit); Rodriguez v. Handy, 873 F.2d 814, 816

(5th Cir. 1989) (holding that plaintiff’s FTCA judgmen

against the United States barred his Bivens judgment

in the same suit); see also Denson v. United States, 574

F.3d 1318, 1334 n.50 (Lith Cir. 2009) (noting that “[a]

majority of courts have construed § 2676 as barring a

plaintiff’s Bivens claims, irrespective of whether the

Bivens and FTCA claims were brought in the same law-

suit”).

ii. Petitioner contends (Pet. 22-23) that in Areines v.

United States, 959 F.2d 854 (1992), the Ninth Cireuit

departed from the consensus of the courts of appeals

that an FTCA judgment bars Bivens claims brought in

the same action. But the Ninth Circuit, like the other

courts to consider the issue, has held that Section 2676

does apply when Bivens and FTCA claims are brought

in the same action; at most, Areines carved out an ex-

ception to that rule. And in any event, the reasoning be-

hind Kreines’s exception is inconsistent with prior Ninth

Circuit precedent and has been undermined by subse-

quent decisions of that court as well. That inconsis-

teney, which amounts to an intra-circuit conflict within

the Ninth Circuit, does not warrant this Court’s review.

See Wisniewski v. United States, 353 U.S. 901, 902

(1957) (per curiam).

As noted above, long before Kreines, the Ninth Cir-

cuit had recognized that an FTCA judgment bars a

judgment against the federal employee even though the

claims were brought simultancously in the same suit.

See Arevalo v. Woods, 811 F.2d 487, 490 (1987) (“The

moment judgment was entered against the government,

then by virtue of section 2676, [the federal employee]

was no longer answerable to [plaintiff] for damages,”

though both claims were raised in a single action.);

Gilman, 206 F.2d at 848 (“[T]he moment judgment was

entered against the Government, then by virtue of

§ 2676 * * * the employee was no longer primarily

answerable to the claimant,—he was not answerable at

all.”).

In Kreines, the panel acknowledged that Arevalo had

held that, pursuant to Section 2676, an FTCA judgment

“barred a contemporaneous Livers judgment against a

federal employee” in the same suit. Kreznes, 959 F.2d at

838. The Kreines court established an exception to that

rule, holding that when the government prevailed on a

plaintiff’s FTCA claim, Section 2676 did not bar the

plaintiff from recovering on a Bivens claim brought

within the same suit. /bid. The court reasoned that

Section 2676 was “ambiguous on the question of whether

an FTCA judgment favorable to the government bars a

contemporaneous Bivens judgment.” /bid. Because the

court viewed the primary purpose of Section 2676 was

preventing dual recoveries arising from subsequent liti-

gation, the court concluded that Section 2676 should not

bar a contemporaneous Bivens recovery when the gov-

ernment prevailed on the plaintiff’s FTCA claim.

Two years after Kreines, however, the Ninth Circuit

limited Kreines to its facts anc — ast doubt on its reason-

ing. See Gasho v. United States, 39 F.3d 1420, 1437

(1994), cert. denied, 515 U.S. 1144 (1995). Gasko con-

cerned the application of the judgment bar to a plain-

tiffs ABzvens claims when the plaintiff had already

brought and lost FTCA claims in a separate suit. The

court held that “(t]he language [of Section 2676] is not

‘ambiguous’ or ‘vague,’” and that—contrary to Kreines’

reasoning—the provision’s plain language dictated that

the judgment bar should apply regardiess of whether

the plaintiff had prevailed or lost on the FTCA claims.

Ibid. (“The statute speaks of ‘judgment’ and suggests no

distinction between judgments favorabie and judgments

unfavorable to the government.”). The court also cast

doubt on Kreines’s reading of Section 2676's legislative

history, concluding that because Congress was con-

cerned not only with preventing dual recoveries, but also

with protecting the government’s resources in defending

itself and its employees, the concerns animating the

judgment bar are implicated even when there is no dou-

ble recovery. /bid. Thus, although Gasho concerned the

application of Section 2676 to a subsequent suit, rather

than to claims within a single suit (as in Kreines), Gasho

casts doubt on the validity of Kreines’s reasoning that

Section 2676 is ambiguous and that its application within

a Single suit should depend on whether the FTCA judg-

ment was favorable or unfavorable to the plaintiff.

In light of Gasho, and given that the Ninth Circuit

has not applied Kreznes’s holding in any subsequent de-

cision, it is entirely possible that the Ninth Circuit will

reconsider its position should the opportunity arise.

That is particularly so given the consensus that has

broadened since Kreines was decided, to the effect that

Section 2676 applies to claims in “any action,” regardless

of whether the claims are brought within one action or

the plaintiff prevailed on the FTCA claims.

The Court recently denied a petition for certiorari

raising the same issue as the second question presented

by petitioners. See Manning v. United States, 130

S. Ct. 552 (2009). There is no reason for a different re-

sult in this case, especially because petitioners failed to

raise the issue before the court of appeals.

CONCLUSIGN

The petition for a writ of certiorari should be denied.

Respectfully submitted.