While assigned to an FBI task force, officers Douglas Brownback and Todd Allen mistakenly assumed that James King might be a suspect of the home invasion. They stopped King and when King struggled, the officers beat him. King filed a lawsuit against officers under Bivens against six unidentified named agents of the Federal Bureau of Narcotics – which enables individuals to sue federal officials for violating their constitutional rights – and against the United States under Section 1346 (b) of the Federal Tort Claims Act – Allows individuals to sue the United States for civil misconduct under the relevant state tort law committed by federal employees.
The district court ruled that King failed to provide the facts necessary to establish state criminal claims against the officers and dismissed the FTCA’s claims for lack of material jurisdiction. Regarding Bivens’ claims, the district court ruled that the officials were entitled to qualified immunity.
King petitioned the US Court of Appeals for the 6th Circuit for a review of the Bivens ruling. Before the case was settled, the 6th Circle requested a statement as to whether the FTCA “judgment bar” was preventing King from pursuing his Bivens claims. The FTCA judgment bar provides:
Judgment in any action under Section 1346 (b) of that title is an utter obstacle to any action by the applicant on the same ground against the government employee whose act or omission gave rise to the claim.
A split 6th circuit ruled that dismissal for lack of factual jurisdiction is not a “judgment” that would raise the FTCA judgment barrier. The majority of the panel argued that “[i]If the Federal Supreme Court does not have material jurisdiction, it lacks the power to judge a case. … Therefore, his dismissal due to a lack of factual jurisdiction does not have an exclusive effect. “
The federal government requested a Supreme Court review, and the judges granted that request in March. Much of Monday’s oral argument in the Brownback v King case centered on the issue that the court was actually asked to rule, as the government and King in many ways focused on different but related issues.
Justice Sonia Sotomayor put it in a helpful way: There is the “jurisdiction argument” – that a dismissal due to lack of factual jurisdiction does not have an exclusive effect. This was the basis for the 6th circuit involvement and makes up most of the government’s credit as to why the 6th circuit was wrong. And then there is the “same argument” that King is pushing – that the FTCA ruling does not apply to claims filed within the same lawsuit, which is an alternate basis for upholding the 6th Circuit decision.
Michael Huston, assistant to the attorney general, spoke out for the government. In claiming that the FTCA ruling applies to claims in the same lawsuit, Chief Justice John Roberts expressed doubts: “As you are reading the law, disposition of an FTCA claim locks Biven’s claims against the employee. But the law, of course, speaks of actions, not claims. “
Huston replied that if Congress only wanted to rule out future claims, Congress would have said “any action” and that by saying “any action”, Congress would have said “essentially synonymous with” claim “”.
Sotomayor, along with Judges Elena Kagan and Brett Kavanaugh, appeared to be skeptical of this reading of the Statute, and Kavanaugh reiterated that “the main problem is for you [that the statute] says ‘any act’, not ‘any claims’. “
However, it is unclear whether the court will eventually come to the “same case” issue. Judges Clarence Thomas, Samuel Alito, and Kavanaugh seemed hesitant about whether the court should consider the argument at all, as it was not the basis for the 6th Circle decision. The question submitted did not make it the dominant issue in the case. Most of the circuits that decided the problem decided against it, albeit in different ways.
Patrick Jaicomo from the Institute of Justice spoke out for King. The chief judge focused on the jurisdiction argument, claiming that contrary to Jaicomo’s reasoning, the court ruled that “if you make a decision on the matter, there is no established jurisdiction against the United States that you”. are treated equally. “In that view, the ruling would apply to a situation where a plaintiff failed to make an adequate FTCA claim. Jaicomo responded that in order to trigger the judgment, “a lawsuit must bring a valid cause of action,” which is consistent with the court’s treatment of the Sovereign Immunity Act.
Thomas reiterated his skepticism about whether the “same case” argument should be entertained and asked, “Why should we even consider your argument that the judgment bar does not apply when the claims are merged?” Jaicomo replied that the court said should examine this question not only because it “requires the language of the law” but also because “this question is embedded in the question brought by the government to the Tribunal”. Jaicomo emphasized that this argument was brought up below and is fully informed and ripe for reflection.
Pressing Jaicomo on the political implications of his position, Judge Stephen Breyer stated that according to Jaicomo’s reading of the FTCA, a plaintiff could receive damages from both the United States and the worker. Wasn’t that “exactly what was passed to quit?” Asked Breyer. Jaicomo replied that in fact Congress did not intend to stop reclaims against employees.
Sotomayor, on the other hand, had “practical difficulties with the government’s position on the same action”, noting that “the government encourages plaintiffs to submit, win, or lose their Bivens claims first, and then their FTCA claims to be submitted. “
Kagan asked Jaicomo what was wrong with the government’s position that “claim” is synonymous with “action” in FTCA jurisprudence. Jaicomo replied that the government’s definition was “way out of the mainstream,” referring to Black’s Law Dictionary.
Judge Neil Gorsuch called this textual argument “haunting” but returned to the threshold question raised by some of his colleagues: “Why should we consider this issue in this case, given the way it was developed in Circuit 6, at this point in time ? ”
After a hearing it is unclear whether the court will reach King’s argument “in the same case”. However, when the court does so, some of the judges seem to agree that he can read the FTCA verdict bar better.
Daniel Harawa, Argument Analysis: Two Ways in the Lawsuit for Unconstitutional Police Violence,
SCOTUSblog (November 10, 2020, 5:05 pm), https://www.scotusblog.com/2020/11/argument-analysis-two-paths-forward-in-lawsuit-alleging-unconstitutional-police-violence/