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

Supteme Court, U.S.

FILED

FC 30 2009

No. 09-294 eC 3

OFFICE QF THE CLERK |

IN THE

Suprence Court of the United States

AYSHA NUDRAT UNUS AND HANAA UNUS,

Petitioners,

Vv.

ROGER AARONS ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

REPLY BRIEF FOR THE PETTTIONERS

Nancy Luque Thomas C. Goldstein

LUQUE GERAGOS & AKIN, GUMP, STRAUSS,

MARINO LLP HAUER & FELD LLP

910 17th St., NW 1233 New Hampshire

Suite 800 Ave., NW

Washington, DC 20006 Washington, DC 20036

(202) 887-4000

Steven K. Barcntzen

THE LAW OFFICE OF

STEVEN BARENTZEN

1575 Eye St., NW

Suite 300

Washington, DC 20005 December 30, 2009

——————————=z—&—z{_q—————————ESESSE

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Te Ge Fe oeeciptereeeencciaivie i

I.

If.

THIS COURT SHOULD REVIEW THE

FOURTH CIRCUIT'S BROAD RULING

THAT THE FOURTH AMENDMENT

CATEGORICALLY PERMITS LENGTHY

HANDCUFFING DURING SEARCHES

IN NON-DANGEROUS CIRCUMSTANCES.............. 1

THIS COURT SHOULD REVIEW THE

FOURTH CIRCUIT'S HOLDING THAT

THE DISMISSAL OF AN FTCA CLAIM

REQUIRES THE DISMISSAL OF CLAIMS

AGAINST INDIVIDUAL DEFENDANTS

FEU CPU PRIS PRR SIE shrvnctnssenssnecsaniucenapwcavovensmededads 9

Se GIT pins cnsisstsvtncassnciecncaamnenean nceuesanapnaia niuataentaaae 3

PI isniiaciiskctaciirscasesicexensaeneenaiesniessms eee la

il

TABLE OF AUTHORITIES

Cases

erent VW. Eres, S14 U.S. 1 (199S)......cccccccsccccccccoeees r 4

Delaware v. Prouse, 440 U.S. 648 (1979).......c..cceeeeee 5

El-Amin v. Commonwealth, 607 S.E.2d 115

Nee os ivnnsesosteveneneccoceseosccsocessess 5

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

is ccinacensdnvscnssssnoscrevecstevesscsccscsoasee 11

Gladden v. Commonwealth, 400 S.E.2d 791

Neen ass cc scadecbarsanesscacconesseepoessses 6

Harris v. Commonwealth, 400 S.E.2d 191 (Va.

Nee. cccndevinnennsonenes 6

Hawaii v. Office of Hawaiian Affairs, 129 S.

Nee cscs sesennscernsecscacccosestons 7

Henry v. Commonwealth, 529 S.E.2d 796 (Va.

Neen ne ee ns wcuscncnncsecssaverderceccecoees 5

Herring v. United States, 129 S. Ct. 695 (2009)....... 8

Huddleston v. Dwyer, 322 U.S. 232 (1944)......00...... 7

Hudson vy. Michigan, 547 U.S. 586 (2006)................. 8

Int'l Longshoremen’s Ass’n v. Davis, 476 U.S.

Cee ecsnsunoncncosenccensecsscees 7

Ker v. California, 374 U.S. 23 (1963).........ccccceseeeeeees 6

Kreines v. United States, 959 F.2d 854 (9th Cir.

Nn i cconsecssnesscceceosscscscecceee 1]

Lebron v. Nat'l R.R. Passenger Corp., 513 U.S.

Neen ss cesnncencacresessscccoscoceses 10

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

. a ee wcwncevune 5,6

iil

Manning v. United States, No. 08-1595, cert.

denied, 130 S. Ct. 552 (Nov. 9. 2009)........... 10, 12

Marbury v. Madison, 5 U.S. (1 Cranch) 137

PM scvisscesdedembondeeascxasssecneaieeisaad nausea miananaaase 8

Maryland v. Garrison, 480 U.S. 79 (1987)... 9

Michigan v. Long, 463 U.S. 1032 (1983)............0.. 5

Michigan v. Summers, 452 U.S. 692 (1981) ......... 1.6

Miller v. United States, 357 U.S. 301 (1958)............. 6

Muehler v. Mena, 544 U.S. 692 (2005) ............. i, 5.6

Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam)...... 7

Ohio v. Robinette, 519 U.S. 33 (1996)................cccceeee 5

Oregon v. Guzek, 546 U.S. 517 (2006) ...................... 7

Pennsylvania v. Labron, 518 U.S. 938 (1996)

CT Ue sienna Soest echnccmminicie a cence elie amano 9

Three Affiliated Tribes v. Wold Eng'g, P.C., 467

US. TI Cocina eee 8

United States v. Nixon, 418 U.S. 683 (1974)............. 8

United States v. Photogrammetric Data Serv.,

Frac, 239 FF. ZTE CA C.D ED wvsverecscsnscvcsncicennes 6

Valladares v. Cordero, 552 F.3d 384 (4th Cir.

PE) vcviscewnkivineacmacasaabenianas ended ae a 6

Yee v. Escondido, 503 U.S. 519 (1992).............. cece LO

Statutes

28 USS. 3 267 C evvicnactceenienn passim

Treatises

Supreme Court Practice (9th ed. 2007) ................ 7,8

IN THE

Supreme Court of the Hnited States

AYSHA NUDRAT UNUS AND HANAA UNUS,

Petitioners,

ROGER AARONS ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

REPLY BRIEF FOR THE PETITIONERS

3 THIS COURT SHOULD REVIEW THE

FOURTH CIRCUIT’S BROAD RULING THAT THE

FOURTH AMENDMENT CATEGORICALLY

PERMITS LENGTHY HANDCUFFING DURING

SEARCHES IN) NON-DANGEROUS = CIRCUM-

STANCES.

The petition for certiorari squarely presents

the conflict between the Fourth Circuit’s

construction of the Fourth Amendment and

Muehler v. Mena, 544 U.S. 692 (2005), and

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

as decisions of the Ninth and Tenth Circuits.

Given the obvious importance of the question

?,

Ga

presented, which may arise in any search by state

or federal officers, this Court’s intervention is

required. See Pet. 25-26.

1. The United States’ reliance on the fact that

agents were searching for “evidence related to a

terrorism investigation,” BIO 12, which it

presumably recites to suggest the agents faced

danger, misdescribes both the facts and the Fourth

Circuit's legal holding.

Factually, the dozen-plus agents faced no risk,

making it unreasonable to detain Dr. Unus’ wife

and daughter in handcuffs for four hours. The

court of appeals held that the handcuffing

satisfied the Fourth Amendment, notwithstanding

that the agents were not “concerned about the

Unus residence being connected to _ terrorism-

related activity, and that they did not anticipate

that the residence might house weapons or

dangerous persons.” I/d. 23a (emphasis added).

That was objectively right: no member of the

Unus family has a criminal record; and there was

no reason to believe weapons were at the

residence.

Nor did the search’s subject matter suggest

risk. The “evidence” to which the United States so

vaguely refers - which did not exist because the

allegations were a sham, Pet. App. lla n.8 - was

“related” to “terrorism” only in an attenuated

sense that suggested no danger: the government

suspected that the so-called Safa Group “route[d]

money” to groups related to terrorism; in turn, Dr.

Unus allegedly “maintains [Safa Group financial]

records at his house,” creating “‘probable cause to

believe that the evidence of [federal law]

violations’ would be found at the Unus residence

in the form of Safa Group financial records.” Pet.

3

App 8a-9a (alterations in original) (emphasis

added).

Consistent with the facts, the Fourth Circuit's

legal holding authorizes multi-hour handcuffed

detentions whenever the government’ seeks

evidence as inherently non-dangerous as financial

records. The government cannot identify any

language cabining the ruling below. To the

contrary, the court of appeals categorically held

that the authority to handcuff all occupants under

Summers and Mena is not limited to searches for

contraband or dangerous materials, but instead

“applies equally to situations where agents are

seeking evidence of federal crimes.” Pet. App. 29a

n.22. Whether officers search for records of tax

evasion, an antitrust conspiracy, or some other

white collar crime is completely irrelevant under

the Fourth Circuit’s holding, and no one can doubt

that the decision will be applied in precisely that

manner.

The other facts on which the government leans

similarly do not reduce the significant conflicts

created by the ruling below. In every search,

officers will “not know whether they would be

confronted by resistance.” BIO 13 (quoting Pet.

App. 3la-32a) (emphasis added). Resistance is

always possible in the wholly hypothetical sense it

might have arisen here, despite all expectations to

the contrary. But the premise of the ruling below

is that the objective circumstances gave no reason

to anticipate any resistance or danger from the

Unus family, and in fact petitioners gave no

resistance.

Similarly, residents will almost inevitably be

initially “excite[d]” and “agitated,” id. (quoting Pet.

App. 32a), particularly when officers break into the

4

home with a battering ram and guns drawn, as the

court of appeals itself acknowledged in correctly

describing the entry as a “harrowing experience”

for petitioners, Pet. App. 28a. Given thai there

were over a dozen armed federal agents on the

scene, once calm was promptly restored, the

hours-long continued handcuffing of two women

suspected of no wrongdoing and who presented

no danger was unreasonable.

2. The United States’ argument that review is

inappropriate because petitioners’ claims under

the Federal Tort Claims Act require them to prove

that the agents committed a tort under Virginia

law lacks merit.

a. As the United States explains, “[u]nder

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.” BIO 10.

“Justification,” which is the only disputed element

of petitioners’ claims, is a question of federal law

because a_ seizure that violates the Fourth

Amendment obviously is not reasonable or “legally

justified.” The government repeatedly made

precisely that point below: “Because the

Commonwealth’s law requires that, in order to

recover for assault, battery or false arrest, the

evidence establish that the detention or touching

lacked adequate legal justification, at least insofar

as it applies in a case such as this in which the

conduct of a law enforcement officer is at issue,

the Commonwealth's law of torts incorporates the

Fourth Amendment's excessive force analysis.”

Gov't C.A. Br. 35 (emphasis added). See also id. 35-

36 (addressing “the Fourth Amendment analysis

by which the question of ‘legal justification’ is to

be resolved” (emphasis added)).'

The Fourth Circuit thus correctly explained

that “[a] police officer’s conduct in executing a

search warrant is judged in terms of_ its

reasonableness within the meaning of the fourth

amendment to the United States Constitution and

Article I, § 10 of the Constitution of Virginia.” Pet.

App. 25a (quoting Lewis v. Commonwealth, 493

S.E.2d 397, 399 (Va. 1997)).2 Accordingly, in

deciding petitioners’ “false imprisonment and

battery claims,” the court of appeals did not cite

Virginia law, but instead rested its ruling

exclusively on the “consistent(] recogni[tion] that

the Fourth Amendment protects a citizen's right to

be free from unreasonable seizures.” Pet. App.

29a (emphasis added). In turn, every precedent

that the Fourth Circuit applied in evaluating

petitioners’ claims, id. 28a-33a, addressed only the

Fourth Amendment, not state law: Muehler v.

' Thus, while the FTCA does not technically address a

“Fourth Amendment claim,” BIO 9 (quoting Pet. 5) (emphasis

added), it does turn entirely on the Fourth Amendment’s

meaning.

The Virginia Constitution’s privacy provision is “co-

extensive” with the Fourth Amendment. El-Amin _ v.

Commonwealth, 607 S.E.2d 115, 116 n.3 (Va. 2005); accord

Henry v. Commonwealth, 529 S.E.2d 796, 798 (Va. App.

2000). That parallelism is common, and this Court

consistently reviews such cases; the government does not

contend otherwise. See, e.g., Ohio v. Robinette, 519 U.S. 33,

37 (1996); Pennsylvania v. Labron, 518 U.S. 938, 941 (1996)

(per curiam); Maryland v. Garrison, 480 U.S. 79, 83-84 (1987);

Michigan v. Long, 463 U.S. 1032, 1043-44 & n.10 (1983);

Delaware v. Prouse, 440 U.S. 648, 651-53 (1979).

6

Mena; Michigan v. Summers, Valladares v. Cordero,

552 F.3d 384 (4th Cir. 2009); and United States v.

Photogrammetric Data Serv., Inc., 259 F.3d 229

(4th Cir. 2001).

The United States nonetheless claims that the

Fourth Circuit relied on “the priority of officer

safety under Virginia law,” BIO 7, which the

government pitches as a “/nlotablfe]” basis for

declining review, id. 10, because the court’s Fourth

Amendment analysis suppesedly “was filtered

through the lens of Virginia’s emphasis on officer

safety,” id. 11. That would be a_ substantial

argument if it were true, but in fact it is pure

invention. The single sentence in question noted

the reliance of a “Virginia” court on “the safety of

the officer,” Pet. App. 26a (quoting Harris v.

Commonwealth, 400 S.FE.2d 191, 194 (Va. 1991));

but it manifestly did not describe that as a

proposition of “Virginia law,” contra BIO 7

(emphasis added), for the understandable reason

that the case decided only “whether a_ police

officer violated the Fourth Amendment's

prohibition against unreasonable searches and

seizures.” 400 S.E.2d at 192.°

* The United States makes the identical glaring error in

claiming that the ruling below “relied on Virginia law” with

respect to petitioners’ assault claim, BIO 11, though the

government's point would be irrelevant even if true, because

the petition concerns petitioners’ distinct claims for battery

and false imprisonment. See Pet. App. 26a (quoting Lewis v.

Commonwealth, 493 S.E.2d 397, 399 (Va. App. 1997)

(quoting, in turn, Gladden v. Commonwealth, 400 S.E.2d 791,

793 (Va. App. 1991) (applying, in turn, not state law but Ker

v. California, 374 U.S. 23 (1963), and Miller v. United States,

357 U.S. 301 (1958)).

7

b. Contrary to the government’s submission

that this Court should not decide questions of

federal law “in aid of the ultimate question

whether” state law was violated, BIO 16, this Court

consistently and regularly grants review in just

these circumstances. See, e.g., Hawaii v. Office of

Hawaiian Affairs, 129 S. Ct. 1436, 1442-43 & n.2

(2009) (state law claim for “breach of trust”

required interpretation of federally enacted

Apology Resolution); Oregon v. Guzek, 546 U.S.

517, 521 (2006) (evidence’s “relevance” under state

statute required determining scope of federal

constitutional right to introduce’ mitigating

evidence); Ohio v. Reiner, 532 U.S. 17, 20 (2001)

(per curiam) (right to immunity under state statute

based on application of Fifth Amendment right

against self-incrimination); Jnt’l Longshoremen’s

Ass'n. v. Davis, 476 U.S. 380, 388 (1986) (state law

determination of waiver depended on antecedent

interpretation of federal labor law); Arizona vy.

Evans, 514 U.S. 1, 7, 10 (1995) (interpretation of

“the Arizona good-faith statute, Ariz. Rev. Stat.

Ann. § 13-3925 (1993),” turned on interpretation

of Fourth Amendment).

We are aware of no counter-examples that

would support the government’s novel contrary

position that federal law rulings in this frequently

recurring posture should forever evade this

Court’s review. The United States’ invocation of

the Stern & Gressman treatise for the proposition

that “[tlhis Court does not generally review a

federal court of appeal’s determination of a

question of state law,” BIO 11 (citing Supreme

Court Practice § 4.10, at 261 (9th ed. 2007) (citing,

in turn, Huddleston v. Dwyer, 322 U.S. 232, 237

(1944)), is misplaced because the question here is

8

the meaning of the Fourth Amendment, not state

law. The relevant point, which the government

ignores, is that it is “‘well established’” that this

Court will decide a “federal question that has been

incorporated in the state law.” Supreme Court

Practice § 3.23, at 212 (quoting Three Affiliated

Tribes v. Wold Eng’'g, P.C., 467 U.S. 150, 152

(1984)).

Nor does the government identify any

pragmatic basis for denying review. To the

contrary, this Court's role is critical. At the urging

of the United States, the Court has recently heavily

emphasized _ civil suits, rather than the

exclusionary rule, as the favored remedy for

Fourth Amendment violations. E.g., Herring v.

United States, 129 S. Ct. 695 (2009); Hudson yv.

Michigan, 547 U.S. 586 (2006). Petitioners brought

just such claims, and did so in the only way

possible: as common law tort claims under the

FTCA, together with a parallel Fourth Amendment

Bivens claim that the court of appeals held was

precluded by the dismissal of the FTCA claims.

But now the: United States reverses course and

implausibly argues that - notwithstanding that

petitioners’ FTCA claims turn entirely on whether

the agents’ conduct violated the Fourth

Amendment because the only disputed issue is

whether the lengthy handcuffing was “legally

justified” - it is the state courts, rather than this

Court, that are the final arbiter cf the federal

Constitution’s meaning in this federal lawsuit.

However, “it is the province and duty of this Court

‘to say what the law is.”” United States v. Nixon,

418 U.S. 683, 705 (1974) (citing Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).

9

IT. THIS COURT SHOULD REVIEW THE

FOURTH CIRCUII’S HOLDING THAT THE

DISMISSAL OF AN FTCA CLAIM REQUIRES THE

DISMISSAL OF CLAIMS AGAINST INDIVIDUAL

DEFENDANTS IN THE SAME ACTION.

The Petition demonstrated that this Court

should grant certiorari to resolve the widely

acknowledged circuit conflict over whether the

FTCA’s judgment bar, 28 U.S.C. § 2876, applies to

claims against individual defendants when an

FTCA claim in the same action is dismissed.

!. The government's principal submission

that petitioners waived this argument by not

raising it in the court of appeals, BIO 16-18, is

disingenuous because it omits that the judgment

bar was not the basis for the ruling from which

petitioners appealed.‘ Instead, tie government

invoked the judgment bar as an alternative basis

for affirming the dismissal of petitioners’ Bivens

claims, and even then discussed the statute’s

meaning in only a single paragraph. See App.,

infra. Petitioners led their reply brief with a

section responding to the government’s reliance

on the judgment bar. Pet. C.A. Br. Part I-A. The

' See Pet. App. 19a, 2la (Bivens claims were dismissed on

qualified immunity and limitations grounds); id. 10la-02a

(after dismissing petitioners’ FICA claims on the ground that

the agents’ conduct was not “inherently unreasonable given

all of the factors involved,” district court ruled that

petitioners’ motion for reconsideration of the dismissal of

their First Amendment Bivens claim was “moot” because the

FTCA rationale meant “that the activities of the officers were

reasonable under the circumstances known to the officers at

the time they took their action”),

10

court of appeals then squarely decided the issue

giving rise to the question presented. It held, as

the government has advised this Court, that a

“FTCA judgment [does] bar [a] Bivens judgment in

the same suit.” BIO 7, Manning v. United States,

No. 08-1595, cert. denied, 130 S. Ct. 552 (Nov. 9.

2009).

Because the court of appeals thus “passed

upon” the question presented, and because it

would be unreasonable to hold that petitioners

were required to brief not merely the judgment

bar (which they did), but also every subsidiary

issue possibly implicated by the government’s

passing invocation of that alternative ground for

affirmance, this Court has jurisdiction and

petitioners did not “waive” the issue. In Lebron v.

Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995), the

Court applied its “traditional rule is that ‘[o]nce a

federal claim is properly presented, a party can

make any argument in support of that claim;

parties are not limited to the precise arguments

they made below.’” Id. (citing Yee v. Escondido,

503 U.S. 519, 534 (1992)) (emphasis added).

Further, “even if this were a claim not raised by

petitioner below, we would ordinarily feel free to

address it, since it was addressed by the court

below. Our practice ‘permit(s] review of an issue

not pressed so long as it has been passed

upon....’” Id. (collecting cases) (emphasis in

original).

Because the only effect of denying review

would be to allow this recurring circuit conflict to

fester, certiorari should be granted.

2. Review also is warranted because this case

perfectly illustrates the implausibility of the

government's reading of the judgment bar. It is

11

undisputed that petitioners could not have

invoked the FTCA to press their First Amendment

Bivens claim that the agents interfered with their

religious obligations, because that claim has no

common law analog. See Pet. 24. Directly contrary

to even the United States’ one-sided explication of

the judgment bar’s purpose, petitioner had zero

“opportunity” to “sue a financially responsible

defendant” for the agents’ unconstitutional

conduct, BIO 19, so that the judgment bar here

does not protect against “further litigation arising

out of the same incident,” id. 20, but instead

entirely extinguishes petitioners’ right to pursue

that claim at all.

This Court’s intervention is required because

the Ninth Circuit would have permitted petitioners

to pursue their Bivens claims. The United States

acknowledges that Kreines v. United States, 959

F.2d 854 (9th Cir. 1992), “hold[s] that when the

government prevailed on a plaintiff’s FTCA ciaim,

Section 2676 did not bar the plaintiff from

recovering on a Bivens claim brought within the

Same suit.” BIO 22. The assertion that Kreines

reflects “an intra-circuit conflict,” id., is meritless.

As the United States acknowledges, id., Kreines

expressly distinguishes prior Ninth Circuit

authority. See 959 F.2d at 838. The government’s

submission that Gasho v. United States, 39 F.3d

1420, 1437 (9th Cir. 1994), cert. denied, 515 USS.

1144 (1995), “cast doubt on” Kreines, BLO 23, is

startling: on that very page, Gasho actually

reaffirms the holding of Kreines that “an FTCA

judgment in favor of the government [does} not

bar the Bivens claim when the judgments are

‘contemporaneous’ and part of the same action.”

The government similarly fails to account for

12

district court rulings faithfully applying Kreines.

See Pet. 23. Eighteen years after Kreines, and

sixteen after Gasho, there is no prospect that the

Ninth Circuit will depart from its long-settled

position.

Nor can Kreines’ holding be trivialized as a

mere “exception” to a more general rule that the

judgment bar applies to FTCA and Bivens claims

brought in a single case. Contra BiO 21-22. When

the plaintiff prevails on a FICA claim, ordinary

principles of remedy law already preclude a

duplicative recovery under Bivens. The judgment

bar thus has its principal effect wher the plaintiff

instead loses the FTCA claim, as in this case. As

the many decisions giving rise to the circuit

conflict demonstrate, that scenario recurs

regularly.

a Finally, there is no merit to. the

government's passing reliance on the denial of

certiorari in No. 08-1595, Manning v. United States,

supra. That case presented a question on which

the courts of appeals are not divided: whether the

judgment bar ever applies to FTCA and Bivens

claims in the same suit. No. 08-1595 Pet. i. The

circuit conflict presented by this petition was

sufficiently tangential in Manning that the petition

there urged it as a basis for review only in a single

paragraph, Pet. 11, and the United States in turn

addressed it only in a footnote, BIO 11 n.3.

Further, the petitioner in Manning sought a double

recovery: not only did his FTCA and Bivens claims

overlap, but he was offered (but declined) the

option to dismiss the FTCA claim and preserve his

Bivens judgment. Finally, unlike Manning, this

case permits the Court to consider the disposition

of petitioners’ FTCA and Bivens claims together,

13

and thus to address the interaction of those claims

that lies at the heart of the judgment bar.

CONCLUSION

For the foregoing reasons, as well as those

stated in the petition, certiorari should be granted.

Respectfully submitted,

Nancy Luque Thomas C. Goldstein

LUQUE GERAGOS & AKIN, GUMP, STRAUSS,

MARINO LLP HAUER & FELD LLP

910 17th St., NW 1333 New Hampshire

Suite 800 Ave., NW

Washington, DC 20006 Washington, DC 20036

(202) 887-4000

Steven K. Barentzen

THE LAW OFFICE OF

STEVEN BARENTZEN

1575 Eye St., NW

Suite 300

Washington, DC 20005 December 30, 2009

APPENDIX

Appendix

Excerpt from Government's Court of Appeals Brief

Section 2676 of title 28 provides

The judgment in an action under

section 1346(b) of this title shall

constitute a complete bar to any

action by the claimant, by reason of

the same subject matter, against the

employee of the government whose

act or omission gave rise to the claim.

In Freeze v United States, 343 F.Supp.2d 477

(M.D.N.C. 2004, aff'd 131 Fed.Appx. 950 (4" Cir.

2005), 2005 WL 1220900, the district court noted

that

The judgment bar applies regardless of

the outcome of the underlying FTCA

action. See Hoosier Bancorp of Indiana,

Inc. v. Rasmussen, 90 F.3d 180, 184-85

(7" Cir.1996) (“There is no indication

that Congress intended that section

2676 to apply only to favorable FICA

judgments.” This judgment _ bar

precludes even constitutional claims

against federal employees. Id. (“ ‘ any

FTCA judgment, regardless of its

outcome, bars a subsequent Bivens

action on the same conduct that was at

issue in the prior judgment’ “ (quoting

Gasho v. United States, 39 F.3d 1420,

1437 (9" Cir.1994))).

2,

=

See also Aetna casualty & Surety Co. v. United

States, 570 F.2d 1197, 1200 (4" Cir.), cert. denied,

439 U.S. 821 (1978). Section 2676 bars a Bivens

claim against a government employee “arising out

of the same actions, transactions, or occurrences”

as an FTCA claim. Harris v. United States, 422 F.3d

322, 333 (6" Cir.2005); Serra v. Pichardo, 786 F.2d

237, 239 (6" Cir.1986); see also Arevelo v. Woods,

811 F:2d 487, 490 (9" Cir.1987). Indisputably,

plaintiffs’ First and Fourth Amendment claims

arise from the conduct of one or more of the

members of the search team, all of whom were

federal employees acting within the scope of their

federal employment. Thus, entry of judgment in

the United States’ favor on the plaintiffs’ claims

under the FTCA precluded “any action” by the

plaintiffs “against the employee of the government

whose act or omission gave rise to the claim.”