Brownback v. King

This case was the third in which the U.S. Supreme Court granted review to consider the scope of 28 U.S.C. § 2676—the judgment bar of the Federal Tort Claims Act (FTCA). The FTCA allows individuals to sue the government for torts committed by government employees acting within the scope of their employment, and section 2676 stated 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.”

In this case, the plaintiff, alleging that he had been misidentified as a fugitive and brutally beaten by police officers, filed suit raising both FTCA claims against the government and Bivens claims (alleging violation of his constitutional rights) against the individual officers. After the government prevailed on the FTCA claims, it argued that the Bivens claims against the individuals were then barred by section 2676. The Sixth Circuit Court of Appeals ruled for the plaintiff, and the government successfully petitioned for Supreme Court review.

In the Supreme Court, Public Citizen filed an amicus brief in support of the plaintiff. The brief argued that section 2676 does not direct dismissal of other claims brought in the same action as an FTCA claim, even when the FTCA claim is disposed of before other claims in the case. This understanding of the judgment bar follows directly from its text, which does not bar “claims,” but rather bars an “action” based on the same facts as the FTCA “claim,” after “judgment in the action” in which the FTCA claim was brought.

The Court held that the decision in this case was a judgment on the merits of the FTCA claims that could trigger the judgment bar. The Court did not address the argument made in Public Citizen’s amicus brief, indicating in a footnote that it was an issue for the lower court to consider on remand. In a concurring opinion, Justice Sotomayor expressed the view that the argument merits “closer consideration” than courts have given it.

Accordingly, on remand to the Sixth Circuit, the court of appeals considered whether section 2676 directs dismissal of other claims brought in the same action as an FTCA claim. A panel of the court held that it does, relying on an earlier decision of the court. In November 2022, the plaintiff then petitioned for rehearing en banc, and Public Citizen filed an amicus brief in support of the petition.