The Supreme Court today considered whether James King has any recourse against the cops who tackled, choked and beat him after they mistook him for a suspect who looked nothing like him. The federal government argued that King cannot pursue his constitutional claims against a detective and an FBI agent because his lawsuit also included tort claims against the United States, which a federal judge dismissed for lack of jurisdiction. Institute for Justice attorney Patrick Jaicomo, who represents King, argued that the government’s reading of the Federal Tort Claims Act (FTCA) contradicts the plain language and intent of the 1946 statute.
The FTCA, the law at the center of Brownback v. King, allows people to sue the federal government for torts committed by people acting on its behalf. King invoked the law because Grand Rapids detective Todd Allen and FBI agent Douglas Brownback were serving on a joint state-federal fugitive task force when they assaulted him in 2014, when he was a 21-year-old college student. But U.S. District Judge Janet Neff concluded she did not have FTCA jurisdiction over the case because the cops’ actions did not meet the criteria for a tort action under Michigan law. Neff also dismissed King’s Fourth Amendment claims against Allen and Brownback after concluding that they were protected by qualified immunity, which bars federal lawsuits against government officials when their alleged misconduct did not violate “clearly established” law.
Last year, the U.S. Court of Appeals for the 6th Circuit revived King’s claims against Allen and Brownback, saying they did not deserve qualified immunity. The appeals court said Allen and Brownback therefore could be sued under Bivens v. Six Unknown Federal Narcotics Agents, a 1971 decision in which the Supreme Court authorized constitutional claims against federal officers.
The 6th Circuit’s decision was a mistake, Assistant to the Solicitor General Michael Huston told the justices today, because the FTCA says “the judgment in an action under section 1346(b) of this title”—which gives federal courts exclusive jurisdiction over the tort claims authorized by the law—”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.” Since King’s FTCA claims failed, Huston said, his Bivens claims were also barred.
Jaicomo presented two main arguments against this interpretation of the statute. First, he said, the FTCA’s judgment bar, which is designed to prevent duplicative litigation, does not apply to claims filed as part of the same lawsuit. Second, Jaicomo said, a court’s conclusion that it lacks subject-matter jurisdiction does not constitute “the judgment in an action” under the FTCA; rather, as the 6th Circuit concluded, it means that the court has declined to enter a judgment.
The first argument seemed to get some traction with Chief Justice John Roberts.
“The statute speaks of ‘actions,’ not ‘claims,'” he noted while questioning Huston. “It was and is very well established [under common law] that there is no bar with respect to claims in the same action. If Congress were going to make such a dramatic departure from that rule, the obvious word to use is right there: It’s ‘claims.’ And yet they didn’t do that.”
Justice Elena Kagan amplified that point when it was her turn to question Huston. “I’m wondering whether your understanding of this provision makes it into something that the language suggests it’s not,” she said. “If I understand your position correctly, you’re really turning this into an election of remedies provision. In other words…once somebody files an FTCA claim, then really they can’t bring a Bivens claim anymore. And the only way to bring a Bivens claim is just to forgo the FTCA claim.” While “that might make sense as a policy matter,” Kagan suggested, “the statute doesn’t read like that. I mean, Congress knows how to write a provision like that. Instead this statute reads like a preclusion statute, and preclusion, as the chief justice began the argument by saying, always applies between suits and not within a single suit.”
Huston argued that action in the FTCA’s judgment bar should be read as synonymous with claim. He cited a contemporaneous law dictionary that defined action as “a demand for relief in court.” In response, Jaicomo said Huston was relying on a definition of action that is “definitely well outside the mainstream.” In a 2017 case, Jaicomo noted, the Supreme Court cited the 1933 edition of Black’s Law Dictionary, which said “the terms ‘action’ and ‘suit’ are…nearly, if not entirely, synonymous.” Jaicomo also cited evidence that neither Congress nor the Court has understood the FTCA as requiring plaintiffs to choose between claims under that law and other remedies.
While questioning Jaicomo, Justice Sonia Sotomayor suggested that accepting the government’s interpretation of the law would lead to “very inefficient” outcomes. “What the government is encouraging plaintiffs to do is to file their Bivens claims first, win or lose, then file their FTCA claims,” which “seems somewhat time-consuming.” She added that “it also makes a difference whether a district court decides whether it’s going to decide the Bivens claims first.” Jaicomo agreed that the results would be inefficient and irrational, noting that “there is no way” for a plaintiff to know ahead of time what he should do to “litigate these claims in parallel, even though Congress and this Court have both said they can be litigated in parallel.”
Jaicomo argued that the difference between claims within a single lawsuit and claims in two separate lawsuits is “embedded” in the question posed by the government’s appeal of the 6th Circuit’s decision: “whether a final judgment in favor of the United States in an action brought under [the FTCA], on the ground that the claimant failed to establish the liability of the United States on the torts that he alleged, bars claims under [Bivens] that are brought by the same claimant, based on the same alleged injuries, and against the same governmental employees involved in the claimant’s unsuccessful FTCA action.”
Despite the interest in the distinction between an “action” and a “claim,” the Court may not end up resolving that issue. Several justices suggested they were inclined to favor a ruling limited to a narrower question: whether the district court’s dismissal of King’s FTCA claims for lack of jurisdiction, which King did not appeal, counts as a final judgment that triggers preclusion. The 6th Circuit thought it did not, and that, in addition to its conclusions about qualified immunity, was the appeals court’s basis for keeping King’s lawsuit alive.
While the issues raised by Brownback v. King may seem abstruse, the implications for King are clear: If the Court decides the 6th Circuit got it wrong, he will not be allowed even to try holding Allen and Brownback accountable for appalling conduct—conduct that the appeals court said a jury could reasonably decide violated his Fourth Amendment rights. According to the government, that is the outcome demanded by a law Congress passed to help victims of government abuse.