Courthouse Steps Preview: Brownback v. King

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When it enacted the FTCA, Congress waived sovereign immunity and accepted vicarious liability for certain torts committed by federal employees. The judgment bar provision of the FTCA provides that the judgment in an FTCA action “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.”  

The question before the Court is whether this judgment bar provision is triggered in an action with both FTCA and constitutional claims, when an FTCA claim is dismissed for lack of subject matter jurisdiction. The Court will hear this case on November 9, 2020.  


Patrick Jaicomo, Attorney, Institute for Justice

Roman Martinez, Latham & Watkins LLP


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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at



Dean Reuter:  Welcome to a special Capital Conversations edition of The Federalist Society's Practice Group Teleforum Conference call as today, November 6, 2020, we discuss Brownback v. King.


I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call. Also, this call is being recorded for use as a podcast. It will be transcribed and placed on The Federalist Society's website.


We're very pleased to welcome two guests to our program today. Roman Martinez is Partner at Latham & Watkins here in Washington, D.C. And we're joined as well by Patrick Jaicomo, an Attorney for the Institute for Justice. We're going to get some opening remarks from each of them, a little bit of back and forth but as always, looking to you, the audience, for questions. So have those in mind for when we get to that portion of the program.


With that, Patrick Jaicomo, the floor is yours.


Patrick Jaicomo:  Thank you, Dean. As Dean mentioned, my name is Patrick Jaicomo. I'm an attorney with the Institute for Justice, and I will be arguing before the United States Supreme Court on Monday in the case of Brownback v. King.


We represent James King, the respondent in that case. And James King, in 2014, was a 21-year-old college student who was walking down the street in Grand Rapids, Michigan, when two men he didn't know approached him. These men were in plain clothes, had scruffy facial hair, were wearing caps and the like, and quickly began asking him questions and got him up against a black SUV, at which point one of them removed James King's wallet, and he yelled out, "Am I being mugged?" Tried to run away from the men he believed were mugging him but was quickly tackled, choked unconscious by one of the men, and then severely beaten in the head and face.


Bystanders who were watching this happen believed they were witnessing a mugging or worse and so called 911 to report that. Uniformed officers arrived on the scene shortly thereafter. And at that point, James was very stunned because the officers who arrived arrested him instead of the men who were mugging him because, as it turned out, the two men who mugged him were actually an FBI agent and a Grand Rapids Police detective who were working as members of a joint state federal fugitive task force.


These two men were looking for a fugitive who was wanted on a Michigan warrant for having committed a Michigan crime which centered on his breaking into his former boss's apartment to steal empty soda cans, which have a ten-cent bottle deposit in Michigan, as well as liquor.


The description the officers were working on was simply a white male between 5'10" and 6'3" wearing glasses. And James fell into that description but so did many, many other residents of Grand Rapids, Michigan.


So once the uniformed officers arrived, several things happened. First, they arrested James. Second, a uniformed officer actually went around to some of the witnesses and forced them to delete photographic and video-graphic evidence of what had happened. And third, they then transported James by ambulance to a hospital, where he was handcuffed to his hospital bed. And then he was taken from the hospital to jail where he spent the weekend on charges of resisting arrest and assaulting police officers because he had resisted what he believed was a mugging.


Once he was bailed out, James discovered that a local prosecutor would go ahead and proceed with criminal charges against him for trying to escape what happened. The prosecutor took James within nine months through a full criminal trial where James testified in his own defense. James was offered and declined a plea deal. And at the end of nine months, the jury returned a verdict of not guilty and acquitted James on all charges. In fact, after the announcement of the verdict, one of the jurists came into the courtroom and hugged James and apologized to him for what he had gone through.


Now, once James had concluded his criminal process, we filed a civil rights lawsuit on his behalf against these officers and the United States. And I'll pause here just to explain a relatively complicated concept of sovereign immunity.


So as many of you probably know, just as a basic fact on fact of how the law works, the government itself can't be sued unless it allows for itself to be sued. And in 1946, the United States government passed a water shed statute called the Federal Tort Claims Act that was the broadest waiver of sovereign immunity in American history.


And it sets out a number of tort claims for which you can sue the United States that results from the actions of the employees of the United States. And it's a very complicated statute, but essentially, there are six elements that a claim has to satisfy for there to be a waiver of sovereign immunity and the creation of jurisdiction. And then there are a number of exceptions that would remove the ability to bring such a claim under the FTCA.


I won't get into any more detail than that unless people ask questions about it. But James brought two sets of claims in his civil rights lawsuit. One was a set of claims against the United States under the Federal Tort Claims Act, arguing that the government had waived its sovereign immunity for torts committed by the officers against him, for example, assault and battery. Independent of those, in the same lawsuit, James also brought constitutional claims against both officers for having violated his Fourth Amendment rights, so unreasonable search, unreasonable seizure, and the use of excessive force.


The government defended the United States and the officers together. The local U.S. attorney took up the defense. And it argued that James' entire lawsuit should be thrown out for two reasons. First, the United States had not waived sovereign immunity and therefore, the district court lacks jurisdiction under the FTCA because James had not alleged facts that would've stated a legal claim under the FTCA. And second, that the officers were entitled to qualified immunity for the alleged violations of James' constitutional rights.


The government moved to dismiss as soon as James filed the lawsuit, so there wasn't some extended discovery period. There was never a trial. Ultimately, the district court agreed with the government and threw out James' whole case. It said there wasn't jurisdiction under the Federal Tort Claims Act and that the officers were entitled to qualified immunity.


James appealed the judgement that the court entered to the Sixth Circuit Court of Appeals. But as far as the issues that James argued, he did not pursue the FTCA claim. He decided because the district court had held that it lacked jurisdiction, that created several different additional layers of trouble to get to the merits of that claim. And it was just simply inefficient to argue that as well as fighting the battle against qualified immunity.


In the Sixth Circuit, James King was able to persuade the Sixth Circuit that the district court was wrong about qualified immunity. The Sixth Circuit held that James had alleged a number of meritorious claims that the officers had violated his Fourth Amendment rights.


In response to James' appeal, the government argued that a provision of the FTCA called the judgment bar meant that because James King's claims failed under the FTCA, that should wipe out his constitutional claims as well. The Sixth Circuit disagreed with that analysis and ultimately remanded the case back to the district court so that it could proceed to trial on James' constitutional claims.


But before the case was able to proceed, the United States solicitor general filed a cert petition with the U.S. Supreme Court asking it to address the issues that the court will hear on Monday. And at this point, I'll hand it over to Roman to explain the government's arguments for why the Court should take the case and why the government should prevail.


Roman Martinez:  Great. Well, thank you, Patrick. And many thanks to The Federalist Society for having me and Patrick here today to talk about this very interesting case and then Patrick for taking some time out of your prep schedule because I know you're in the thick of it getting ready for Monday.


      Just by way of background about myself, I've argued -- I was in the Solicitor General's office for a number of years. And I had the fortune or misfortune, depending on how you characterize this, of defending the government in a handful of FTCA cases where the government, as in this case, was the petitioner in the Supreme Court.


      Unfortunately for me, or more precisely, unfortunately for the government in both of those cases, they resulted in what the government would think of as miscarriages of justice because the plaintiff in those cases who was trying to sue the government won. One of those cases, Simmons v. Himmelreich, is a case that plays into the arguments in this case. And I think it's just worth noting the interesting procedural posture here which is that the government had sought cert here. But unusually, that would mean in a Supreme Court case, they probably, all else being equal, have a 60 to 70 percent chance of winning because the petitioner usually wins.


      But I think there is a track record of FTCA cases where the government, even though it has persuaded the court to grant cert, has ended up losing. And so I just want to talk a little bit about the briefs that the government's filed and the basic argument that they've put forward here.


      So the government's core argument is based on the judgment bar. And the argument is essentially that because it prevailed at summary judgment, according to the lower courts, on the FTCA claim and because Mr. King is no longer appealing that FTCA claim, that there is a judgment on the FTCA claim that then bars the Bivens claim.


      And according to the government, this follows in a straightforward way from the plain language of the statute. So the statute says, and here, I'm quoting, "The judgment in an action under Section 1346(b)," which is in other words the judgment in an FTCA action, the government would say, "shall constitute a complete bar to any action by the claimant." So the judgment in the FTCA claim 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.


      So the government's basic textual argument here is that okay, we now have a judgment on the FTCA claim. So that counts as a judgment under Section 1346(b), under the statute. And then that operates as a complete bar to any action by the claimant against the individual employees. And so they would say you have currently pending an action by the claimant, the Bivens action, that's against the government -- sorry, that's against the individual employees. And therefore, the government would say under the plain terms of the judgment bar, the case has to be dismissed.


      Essentially, Mr. King had his chance. He litigated the FTCA claim. He's not disputing that that claim was dismissed properly, or it was resolved on summary judgment against him properly. You have that judgment. It bars the Bivens claim. And so that's basically their textual argument.


The government then reinforces that textual argument with a number of other points. First of all, precedent. They point out that in the Simmons v. Himmelreich case, the one I mentioned a few minutes ago, the Supreme Court said that the judgment applies when an FTCA claim is dismissed because "the plaintiff simply failed to prove his claim."


      And the government said that that applies squarely here because you have a summary judgment decision against Mr. King on the FTCA claim. It counts as a jurisdictional ruling when you get into the details of this in a little bit because it gets a little complicated, only because of the fact that the FTCA is written in a way that the merits determinations and the jurisdictional determinations under the statute overlap.


      And the statute is written in this odd way, and so even if it's true that technically the rejection of the FTCA claim was based on lack of jurisdiction, as Patrick mentioned, it's nonetheless also a merits determination because it's essentially the determination that Mr. King simply failed to prove his FTCA claim. So they say under that language of Simmons v. Himmelreich, that means that the judgment bar applies.


      The government also says that rejecting the Bivens claim now is consistent with the purpose of the judgment bar, which they say was to prevent duplicative litigation. And this is part of the government's broader thematic argument and what might be described as their general theory of the judgment bar, which is that its basic purpose is to create a remedial compromise where the government is basically saying that Congress essentially gave litigants a choice.


      You can bring a Bivens claim against individual employees, and the FTC doesn’t directly preclude you from doing that. There's some downside to doing that because you're suing the individual employees, and so in theory, you wouldn't necessarily automatically get the benefit of the judgment fund that the government had to pay out claims. And in theory, you're holding the individual employees individually liable.


      But the government says look, what the FTCA did was to create a new remedy. And in fact it said it was a historic waiver of sovereign immunity, and essentially, in exchange for the waiver of sovereign immunity and the ability to bring an FTCA claim directly against the government, which has deep pockets, you are then going to be as a plaintiff, you're going to be precluded. You have to -- you can't relitigate the same facts twice if you lose the FTCA claim. And so they basically -- their theory of a judgment bar is that it enforces this remedial compromise, this remedial choice that the FTCA gives for claimants.


      The final point I'll make before turning it back over to Patrick just to explain his counterarguments on these various points is I think one thing that is helpful to the government is that they have the weight of Court of Appeals authority behind them. So they point out that their approach to the judgment bar and its relationship in this kind of context where you have parallel FTCA and Bivens claims going has been essentially adopted by all of the courts of appeal that have addressed the issue.


      And I think Patrick can correct me or he can nitpick with the government's characterization, but I think the government's asserting that there are basically six courts of appeal that have weighed in on this, other than the court below, and that all of them have essentially adopted the government's theory.


      So, Patrick, just turn it back over to you so you can tell everyone why the government's wrong.


Patrick Jaicomo:  Thanks, Roman. I'll be happy to do that. As Roman identified, the real argument in this case ultimately comes down to the language of two provisions of the Federal Tort Claims Act. Primarily, the judgment bar, which I'll quote again just to help identify what the issues are but also for the sake of jurisdiction. As Roman mentioned, the peculiar thing about the FTCA that makes it unlike almost any other provision that Congress has passed is that in Section 1346(b), through the exact same six elements, Congress does three things.


      First, it waives its sovereign immunity. Second, it explicitly provides jurisdiction. And third, it sets the elements of the cause of action. So that puts the FTCA in a very small category of statutory provisions where there is this direct overlap of concepts of jurisdiction and concepts of the elements of the claims. So there's a quite bit of confusion that's been created by that and some of it will bear on this case. I'll come back to that momentarily.


      But the heart of this case is the dispute, as Roman said, over this provision, 28 U.S.C. 2676 called the judgment bar. And I'll just read a portion of that again. It says, "The judgment in an action under Section 1346 of this title shall constitute a complete bar to any action by the claimant." It continues on after that.


      Our position in this case is as the Supreme Court has said in the last two cases that it's addressed the judgment bar, including the Simmons case which Roman argued, was that that provision incorporates to some extent or another the common law concept of race judicata, which for lawyers is a term that's definitely stuck in the back of your brain but ultimately, it's claim preclusion which prevents someone from litigating a lawsuit against someone, losing or winning, and then bringing the same lawsuit again over and over and over.


      And so the point is to have finality of judgments and to ensure efficient court practices. Our argument is that through the language of the judgment bar, which uses several common law phrases that refer to race judicata including the phrase complete bar, the phrase same subject matter, and the title, which is judgment of the bar, what the judgment bar does is simply import this concept of race judicata into the FTCA. And that the reason that's important as we make three primary points in our briefing to the Supreme Court and why it wouldn't apply in this case is this.


      First, under the common law and the judgment bar's reference to the judgment, not a judgment, and the judgment in an action, not a judgment on a claim, what that means is that the judgment bar never applies to claims brought in a single lawsuit. And that's how common law race judicata has historically operated with zero exceptions.


      So if you bring inconsistent claims in a single lawsuit and you don't win all of them, that doesn’t doom all of the good claims. You can bring ten claims, nine of them can fail. As long as one succeeds, you have a cause of action. And so our position is that through the language of the judgment bar itself and the common law that it incorporates, the judgment bar can't apply to claims brought in the same action.


      The second and third arguments are both predicated on jurisdiction, which gets us back, to some degree, the peculiarity of Section 1346 tying jurisdiction and elements together. And our point on that is that applying the same common law concepts of race judicata and looking to the language of the judgment bar which refers to the judgment in an action under Section 1346, that requires that the action's judgment had been entered by a court with competent jurisdiction under the FTCA.


      And if a court lacks jurisdiction for any reason, it has no authority to enter the judgment that would trigger the judgment bar. In this case, there are three different ways that we can see that the district court did not enter a judgment with jurisdiction that would trigger the judgment bar.


      The first is that the basis for the government's requested dismissal of the FTCA claims was that James King had failed to establish subject matter jurisdiction under Rule 12(b)(1). And that was the predicate for the dismissal of the district court's dismissal of the FTCA claim.


      Now, a wrinkle in this case is that here, the district court said I'm dismissing James King's case because he has failed to satisfy the jurisdictional requirements of the FTCA but alternatively, he's also failed to state a claim. And so our point to that is once the district court said it lacks jurisdiction, it can't move on to the elements and provide anything other than dicta because it has now divested itself of judicial authority under Article III of the United States Constitution. And reaching beyond jurisdiction into the merits when the court lacks jurisdiction is something that courts can't do just as a function of being courts.


      The second line is derived from a case called FDIC v. Meyer where the court addressed the jurisdiction of the FTCA and explained that a case doesn’t come within the FTCA's jurisdiction unless it alleges facts that set forth a legally valid cause of action under the FTCA. And in this case, even if the court were able to move to its alternative argument, its ultimate holding was that James King failed to state such a claim. He failed to allege facts that would be sufficient to bring a claim under the FTCA.


      So those are the two simplest to understand arguments as far as why the district court didn't have jurisdiction. Here, to Roman's point about the government saying summary judgment, summary judgment, we have a fundamental disagreement because the government's position is even if something is jurisdictional, it can also be on the merits. And our position is if something is both jurisdictional and on the merits, the jurisdictional impact is what controls.


      And so just to clarify once more, the government itself asked for a jurisdictional dismissal. On appeal to the Sixth Circuit, the government repeatedly said the case was decided under Rule 12, not under Rule 56. And only now at the merits stage, the government calling what happened in the district court a summary judgment ruling.


      Now, to the last and broadest jurisdictional argument for why the FTCA has no application here and therefore the judgment bar doesn’t apply, the fact that Section 1346 perfectly overlaps jurisdiction and elements, as I mentioned, creates an odd situation. And about a decade ago, the Supreme Court decided a case called Arbaugh where it said if Congress makes an element jurisdictional, we will treat that element as jurisdictional.


      Now, in that case, the Court was addressing something under Title VII, not the FTCA. But in a footnote at the end of the case, it explained that there were many instances where Congress had made certain factual findings jurisdictional and among the provisions cited was Section 1346. And then a few years later, in another case that Roman actually argued, this Arbaugh decision was applied to the FTCA in the case called Kwai Fun Wong.


      Now, that case was actually about whether the statute of limitations for an FTCA claim was jurisdictional. And the Supreme Court held that it wasn't, but its reasoning was crucial which was the reason the Court said the statute of limitations was not jurisdictional was that it didn't speak in jurisdictional terms and more importantly, for our case next Monday, that the statute of limitations was a provision separate from Section 1346 which was the jurisdictional provision.


      Now, that's a very broad understanding of jurisdiction. But nevertheless, that is what the Arbaugh case suggests. And so just to clarify for everyone, we think the most easily administered rule here would be to simply take the line from the Meyer case which says that jurisdiction attaches once a case proceeds past Rule 12 and actual factfinding is done. So that way, a failure to allege a claim would be jurisdictional, but a failure to prove a claim would not.


And coming all the way back -- sorry. I know this is all very highly technical stuff. That means that we have essentially to completely independent arguments for why the judgment bar doesn’t stop James King from litigating this one and only lawsuit he's filed. The first, and I think simplest, is that the judgment bar doesn’t apply to claims in the same lawsuit. So just in the same way that if you brought a lawsuit for both assault and battery and the court held that you hadn't proved a battery, but you had proved an assault, that holding of no battery would not kill the good assault claim.


      And the second is that when a court says it lacks jurisdiction under the FTCA, it necessarily cannot enter a preclusive judgment per the language of Section 2676 and per basic concepts of race judicata as it existed for over a century, a common law before the FTCA was enacted.


      So that’s the operation of our textual argument on the judgment bar and why James King should not be stopped from finishing the one and only lawsuit that he's filed arising out of this incident with the officers.


      Now, to circle back to the remedial compromise that Roman mentioned. Yes, the government's position is effectively -- it has to agree with us that the FTCA doesn't create an actual election of remedies because the Supreme Court has very clearly stated on several occasions, you can bring a Bivens claim and you can bring an FTCA claim. One doesn’t stop you from bringing the other.


      The government has now devised this remedial compromise theory which says okay, it's not really an election of remedies. You can bring a Bivens claim and you can bring an FTCA claim. You can bring them in separate lawsuits. You can bring them in the same lawsuit. But the second that an FTCA judgment enters, that kills your Bivens claims. And it doesn’t matter whether a judgment before then was entered in Bivens, after was entered in Bivens, or simultaneously.


      And so essentially, the government's position is that if you choose to bring both claims, the Bivens claim is effectively illusory unless you can do something to make sure the FTCA claim doesn’t go to judgment or is not dismissed for any reason. How exactly a plaintiff would do that or what strategy they could devise ex ante, the government doesn’t offer. And it seems impossible because obviously, a plaintiff can't decide when or how a defendant will bring motions, when or how a court will decide those motions, even if you get through the district court phase, how the circuit court might address the competing issues. So it really leaves a lot of confusion if this is how the judgment bar is applied.


And in the Simmons decision, one of the reasons the court said it would not apply the judgment bar was because it said that that application would do nothing to stop duplicative litigation and would produce the, as the Court said, strange result of incentivizing plaintiffs to first sue individual employees under Bivens, see how long they can proceed with that before they need to file a lawsuit under the FTCA to preserve the statute of limitations, and then keep the balls juggling in the air until a Bivens claim can either be decided or at least very closely scrutinized for a plaintiff to decide which claim is a better claim.


      And so I know that this is a lot of very technical stuff. But in very short simple understanding, our position is just James King, like any plaintiff would if they were trying to litigate efficiently, brought all the claims he thought he had against all the defendants that he thought he could name. Some of those claims failed, as commonly happens in litigation. And just because those claims failed, that shouldn't kill the claims that don't fail. And the claims that don’t fail in this case are very important constitutional claims.


      And I think the thing that really highlights the overarching importance of this case is that James King already did something that's very difficult for plaintiffs to do, which is to overcome qualified immunity. The district court granted the officers' qualified immunity, and the Sixth Circuit reverse on that issue, that is not something that circuit courts do lightly in this current era of the qualified immunity doctrine.


      And if the government hasn't appealed that issue on its petition to the Supreme Court, it's essentially bringing the case up with that built into what has happened and is now asking the Court to find another way to preclude the officers from actually seeing the inside of a courtroom and to stop James from getting his case to a jury.


      And ultimately, what this is about is whether the government is able to find another way to prevent a plaintiff from having a day in court on their constitutional claims. And I'll let Roman tell me some things.


Roman Martinez:  Yeah. No, no. Just maybe what I'll do is just very quickly just talk about the government's two responses on the two main points that Patrick made and then maybe just broaden out a little bit with a couple of bigger picture thoughts about the case, if that works for you, Patrick.


Patrick Jaicomo:  Sure.


Roman Martinez:  So just that -- I think Patrick's done a great job in laying out the issues in the back and forth. And I should say, by the way, I think that Patrick and his team have done just a fantastic job in the briefing in this case. They really have laid out a judgment bar as race judicata theory. They've done it in a very nice way, and I think they've tailored the argument and improved the arguments at every step from the arguments that were made below. And I think they've just done a fantastic job. So I would encourage anyone who's interested in the FTCA to read the briefs in this case.


      I think the government would have two responses. First of all, on Patrick's argument about the judgment bar not applying to claims that are in the same case. I think Patrick is probably right that -- or is right, that that is -- that would be the normal claim preclusion rule. I think the government's basic argument is that well, we have a statute here that's governing this, and the statute expressly says that the judgment in an FTCA claim is a bar to any action by the claimant.


      And so the government would say look, we've got statutory language. The only question in this case is whether the Bivens action is an action by the claimant that qualifies. And clearly, it is an action, and so the word in the statute bars any action. Therefore, the claim is barred. So that would be the government's response on that point.


      And then on the other slightly more complicated and trickier issues relating to whether a jurisdictional dismissal counts to trigger the judgment bar, I think the government's basic point is that look, it doesn't really matter whether you classify the rejection of Mr. King's FTCA claim as jurisdictional or not because the key thing is that it reflected a merits determination as well, or at least it may be only a merits determination but certainly, at least a merits determination.


      And that I think the government would say that a consequence of Patrick's argument is that the FTCA judgment bar would almost never apply in circumstances where the government wins the FTCA claim because basically, when the government's winning the FTCA claim, it's always going to be on a basis that would qualify as a jurisdictional element -- a jurisdictional determination in some sense. And therefore, under Patrick's theory, basically, the judgment bar is neutered because it only -- it never helps the government when they actually win the FTCA claim, and it allows people to get a second bite at the apple.


      And then they would point to a statement in the Simmons v. Himmelreich decision which seems to indicate that the judgment bar applies regardless of whether the FTCA judgment is favorable to the claimant or not favorable to the claimant, which seems to acknowledge that sometimes the government is going to be able to invoke the judgment bar when it wins on the FTCA claim.


      So that's kind of in the weeds, and we've got in the weeds. I think just stepping back from the case, a couple of bigger pictures points that I think are worth noting. One is I do think that the challenges that this case poses and the oddness of the case flows from a couple of things. One is the fact that the FTCA, Patrick and I have both commented on, is sort of unique in conflating the jurisdictional issues or elements with the merit's elements.


      And that just creates a lot of weirdness when you're talking about doctrines like race judicata that seem to turn on the classification of a prior decision as being jurisdictional or not. I also think another oddness of the statute is that the judgment bar provision was drafted in 1946. Bivens actions weren't recognized for several decades later until the early '70s.


      And so although Congress has amended the statute in a couple ways since then that might shed light on the relationship between the judgment bar and Bivens claims, it doesn't strike me, and I don't think Patrick would disagree, that it's probably not the case that when Congress sat down to write the words that are at issue here in the judgment bar, it was envisioning this parallel Bivens litigation.


      And so we're trying to figure out how to interpret the statute in applying it to a context, this parallel Bivens type of action, that didn't really exist when the statute was drafted. And that just creates some weirdness and some challenges.


      The second bigger picture point I'll make is that I do think this case may offer an interesting window into textualism and how the Court, and especially the new Supreme Court we now have with Justice Barrett, is going to approach textualism. Both sides have robust arguments about the statutory language.


      I think the government's argument about the phrase any action is textually grounded. It's also, though, based on a pretty literal discussion of the text and reliance on the text. And Patrick's argument is also textually grounded, but I think it takes into account the broader context. And that's why I think his arguments about race judicata are so important.


      And so I think this case might implicate interesting, if not quite divisions, at least tensions or different ways that textualist justices might approach a case where even though they're coming at it from a textualist framework, there might be different ways to apply textualism.


      We saw something maybe similar in the Bostock case, the LGBT discrimination case last term, where Justice Gorsuch applied a very literal textualism. And the dissenters would have applied a slightly more contextualized textualism when looking at the meaning of the phrase. And I think you could see something similar here. And it'll just be interesting to see how, especially the more textually oriented justices, approach Patrick's first argument, which really does turn on the meaning of any action.


      And then the final comment I'll make is this case also offers a window into the Court's -- the degree to which the Court is trending Libertarian. I think one of the interesting developments in the last few years has been with Justice Gorsuch seems to have a libertarian type streak in him. And I think the facts of this case as laid out by Patrick here and also in his briefs in a really compelling way, they just show you kind of rooting for Patrick's client because it just seems so unfair that someone would just be stopped on the street based on a description by people who are not in uniform.


      And then you would sympathize with someone who's stopped and then gets into an altercation because he thinks he's being mugged. And I kind of feel like this case would trigger a libertarian leaning or push the libertarian button for those judges who have that button. And I think one thing that'll be interesting to see is whether we haven't -- I'm not sure we've seen Justice Kavanaugh on libertarian type issues yet, but we'll see how he responds. But I'm especially interested in Justice Barrett just because I don't know how she would react to this kind of fact pattern.


      So I will leave it there and kick it back to Patrick in case you have any other bigger picture comments. But thanks again for having me and I look forward to any questions that folks have.


Patrick Jaicomo:  Yeah. Thanks, Roman. I'll just say a few short things. I will go point by point. For everyone who's hoping to find my secret answers to the comments that Roman made, you're going to have to tune in on Monday because we're doing oral argument over the phone and it will be livestreamed on C-SPAN.


      But I think the big picture things here are that we are in a fundamental disagreement with the government over two things. First, really has to do with this background cannon of textual interpretation that Congress legislates with a common law backdrop. Now, this is a point the Supreme Court on many occasions stated and in reading law by Justice Scalia and Bryan Garner, this is something that's stated and that's that Congress legislates with the understanding of the common law.


And that's more of a compelling argument here than it otherwise would be because not only is that the case, but here, Congress actually used a number of terms of art that are taken directly form the common law. Complete bar is one of them that mean race judicata.


      And so really, for both of our points, the government's position is the judgment bar might be kind of like race judicata in that a judgment creates a preclusion. But other than that, it has nothing to do with common law race judicata. And our position is no, this is common law race judicata. That’s what Congress was codifying here for a number of historically significant reasons.


      And even if it weren't as clear as it is, the enormous departure from the common law that the government is offering requires extraordinary evidence and for Congress to have been explicit in doing that. So in particular, the application of a bar to claims brought together as a single action is a concept that's completely unknown to the common law, which developed for hundreds of years and in America, from the Founding up until 1946. The common law understanding would've never considered claims to be barred by one another in a single action.


      And the second big picture thing is just as we both said now, we've got this peculiar situation where jurisdiction elements are intertwined in Section 1346. And ultimately, for the government to prevail, the jurisdictional language of Section 1346 needs to be read to have absolutely no impact whatsoever. So if by saying these things are jurisdictional, Congress meant anything, we should prevail in this case.


And the government's position that even if it's jurisdictional, the merits can still be reached is, as I think I mentioned earlier, should be very problematic to, for example, Justice Thomas, who on many occasions has very vocally said when a court lacks jurisdiction, it can't reach beyond jurisdiction and do anything because that would expand the power of the courts which is restricted by the grants of jurisdiction that Congress gives. And that's how our constitutional system is set up.


      So those are big high-level legal issues that underlie our interpretation of the judgment bar. And, of course, the big policy issues that will result from this is essentially whether the Court will allow the government to have another wide sweeping doctrine of immunity that will be able to be used in this instance against claims against any sort of federal worker.


      So, here, we're dealing with an FBI agent and someone who is deputized a special U.S. marshal. But this rule would apply with equal force to any federal employee and anyone working with a federal employee. And the big problem from our perspective -- and IJ just launched its project on immunity and accountability which deals with this case, qualified immunity, various other forms of immunity and special protections that government workers have.


      The big concern is that all of these things allow government officials to violate the Constitution and face zero repercussions for it. So they can explain why there's a good policy for that. I personally think the Constitution sets a line that can't be crossed for the government. And so we're very concerned any time a situation arises where the ultimate conclusion is yeah, there might've been a constitutional violation here, but you can't do anything about it.


      And this case would present another tool like qualified immunity to allow government officials to violate the Constitution and face no consequences for that. So with that, I will -- I think we're ready to answer anybody's questions. And we're happy to stick around through the end of the hour.


      Thank you so much to Federalist Society for hosting this. And it's been really great meeting you, Roman, and thank you for joining me on this call.


Roman Martinez:  Absolutely.


Dean Reuter:  Terrific. Well, this is Dean. Let's open the floor to questions. I'll ask a question of Roman. And I don't think you really addressed this head on, and that's the definitiveness, I suppose, with which Patrick spoke about a court getting into merits after a finding of no jurisdiction. That just strikes me as really, really odd.


      Is the case law pretty clear on that? It does seem to me fundamental to the whole functioning of courts that there be a case in controversy and there be jurisdiction. And if the court itself finds no jurisdiction, how does it then go on to discuss merits?


Roman Martinez:  Yeah. So I think it's a great question, and I think Patrick framed it in a compelling way as well. I think the government actually has a good answer to it which is that this is not a circumstance in which a court would've found no jurisdiction but then would've gone onto the merits and done something in addition to that. This is very different from that because here, the court is essentially making one decision and it is both simultaneously a jurisdictional ruling and a merit's ruling.


      And so I just don't think this presents the -- I don't think anyone would disagree that a court without jurisdiction can't make a merit's ruling. The only possible exception or the wrinkle would be if the jurisdictional decision is itself a merit's ruling. Then, I think the court actually has to resolve the merits in order to resolve jurisdiction. And it's just one decision.


      And so I also think, just to comment on Patrick's points, the reason this whole jurisdictional classification matter, as I understand it in this case, is because there's this background principle of race judicata law that says that jurisdictional dismissals don't count for race judicata purposes.


      And that's generally true, but I think that those decisions and all that precedent establishing that principle are really geared towards situations and arise from those situations where the jurisdictional determination is something distinct from the merits. And so it's not at all clear that that rule would apply in a circumstance like this one in which the jurisdictional determination and the merits determination are one in the same.


      And I think if you think about the principles of race judicata and the core goal of not allowing people to relitigate issues or relitigate claims, if you bring a claim and the court says in one decision, we've looked at the claim and we've concluded that X, Y, Z is true and the legal consequence of X, Y, Z is true, being true is that there's no jurisdiction and your claim failed on the merits, and both of those things flow from the finding, then it seems to me that it's not clear why under any principle at law, even under race judicata, you would be able to bring the same claim again. And I just think that normal rule about jurisdictional dismissals not being preclusive, it's not clear at all that it would apply in that kind of somewhat unique circumstance.


Patrick Jaicomo:  Yeah. If I could just chime in really quickly.


Dean Reuter:  Patrick, go right ahead, Patrick.


Patrick Jaicomo:  Okay, great. So there's no doubt, everyone's on the same page that the FTCA is bizarre in that it does this jurisdiction merits thing at the same time. And so I think you have your finger on the pulse in the same way we do, Dean, which is to say of course, jurisdiction is the most fundamental thing about a court because that's where the court becomes a court. Otherwise, it's just a guy or a gal sitting in a robe and saying things.


      And so the two things that I would say in this case particular are first, yes, Roman's correct that there aren't very many situations where merits and jurisdiction are intertwined, and so there's not an enormous amount, certainly a common law, of case laws to address this sort of situation. But there have been a handful of cases that involve sovereign immunity, both to the United States and of foreign states, where the court has said of course, there will be some fact finding that is necessary to decide whether the sovereign has waived its immunity.


      But when a court wades into those factual determinations and ultimately concludes that it lacks jurisdiction, the jurisdictional aspect of his ruling prevailed. And so the holding of the factual portion of that's not preclusive because if it is, that simply allows courts without jurisdiction to reach the merits anyway and just do it in conjunction with deciding jurisdiction and thereby circumventing the ability of Congress to restrict jurisdiction of courts.


      But I think in the most practical sense that the more problematic application, in this case, is that what actually happened here was the government argued for 12(b)(1) dismissal for lack of jurisdiction and 12(b)(6) dismissal for failure to state a claim.


      Now, we think a failure to state a claim is jurisdictional, but setting that aside, what the district court held here was I do lack jurisdiction, but even if I didn't, this also fails to state a claim under Rule 12(b)(6). And so through the Sixth Circuit and the merit's briefing, the government has characterized that decision as this.


The district court entered judgment on two independent bases: one, that it lacked jurisdiction and then independent of that, that there was also a failure on the merits to state a claim. And our position is, as the Sixth Circuit held, once the court says it lacks jurisdiction, it's done. It has to put its pencil down and its hands up because it's not a court as to that issue anymore.


And so ultimately, I think, Dean, your impulse is correct. But I recognize that Roman's arguments have some weight to them.


Dean Reuter:  Well, let me ask you a question this way. Patrick, is Congress then able, by linking some merits things and jurisdiction together as they pass a statute, are they able to erase the need for jurisdiction for courts to reach merits issues going forward? And are there other statutes like this that do that?


Patrick Jaicomo:  So there are a small number of statutes like this. I mentioned another one that is called the Foreign Sovereign Immunities Act that has merits and jurisdiction explicitly intertwined in a way that's similar to the way the FTCA is setup. There aren't any other that I can think of that have this perfect overlay like the FTCA does.


      But to the core of your question, yes, the Court has stated Congress is free to set jurisdiction how it wants, where it wants, and deal with it however it likes. And that was the core holding in the Arbaugh case that I mentioned a lot earlier, which was that although Congress typically doesn't tie merits to jurisdiction, it certainly has the authority to do that. And when it does, courts will treat the decisions made in that overlapping section as jurisdictional decisions because that is always the primary concern of a court.


Dean Reuter:  Right. Well --


Roman Martinez:  Could I --


Dean Reuter:  Go ahead, Roman. Roman Martinez, go right ahead, please.


Roman Martinez:  Yeah. Yeah. This is Roman. Not to belabor the whole jurisdictional thing, but I do think, to me at least, and this is -- we'll see where the court is, but I think this debate about jurisdiction and merits is pretty technical and pretty confusing. I kind of think just on a comparative basis, the government had some good points on that.


      One thing that we haven't talked as much about and I just want to acknowledge a very compelling argument that I think Patrick has that he mentioned earlier which is even if you were to agree with the government on their very literal interpretation of any action and even if you were to agree with the government on what they're saying about this jurisdiction merits thing, the government's position does end up in a very bizarre place because the government is backed into this corner, I think, where they are having to argue that the way this should somehow work is that oh yeah, of course you can bring both claims but you just can't let the FTCA claim go to judgment.


      And to me, that's really one of the very strongest arguments Patrick has for why -- regardless of some of these legal technicalities on the text and the jurisdictional question, why a court might look at this and just think that was a bizarre place to end up. And that might, I think, could conceivably color how they analyze the text and how they analyze the other issues. I don't think Patrick will disagree with me on that point, but I just wanted to flag it because I do think it's easy in this case to get lost in the technical weeds and to -- it's important to keep in mind the end place that the government's theory leads to which is a kind of a not very satisfying place, it seems to me.


Patrick Jaicomo:  Yeah. I do agree with Roman on that point. And I think one of the really interesting things about what the government's demanding the interpretation of the judgment bar does here is that it creates an enormous amount of litigation and a more complicated type of litigation for not only plaintiffs in courts but for the government itself to defend because ultimately what would come to pass if the government's correct is that plaintiffs would spread their claims out across as many lawsuits as they can, stagger it in such a way that the judgment in the FTCA action or dismissal of an FTCA claim doesn’t ever happen so the plaintiff will be forced to, for example, try to stay part of the case or to engage in some sort of delays in discovery or to figure out some way to interlocutorily appeal a Bivens claim while the FTCA claim is still pending.


      And any lawyer listening to these scenarios is thinking how in the world, if I'm sitting down and thinking about filing a complaint, would I get around these problems? And I don't think that there is an answer, and if there is, the government certainly hasn't offered it up.


      And so, yes, in the Simmons case, it was a different analysis, but the court was very concerned with this concept of just expanding litigation for litigation sake just so the government can use the judgment bar as a tool to get out of liability for constitutional claims.


Dean Reuter:  I still don't see any questions in the audience. Our lines are open. Both of you, or each of you, I think have mentioned one or two Supreme Court justices by name. I'm wondering if -- what you're thinking is on Justice Alito and where he might be on this, a former prosecutor and I think often seems to come down on the side of law enforcement in cases.


      Is there a particular way of approaching this bench, Patrick? And are you framing arguments to try and get what you think is the central judge or the most important judge, the pivotal justice? And if you don't want to disclose that, that's fine. We can move on to something else.


Patrick Jaicomo:  Well, I think Roman's kind of already touched on this point earlier. And first, before I get into that, I'll say we're approaching this case from a purely textual application of how common law is read into the text. And so we're bringing a very straightforward analysis to this. We're not asking the Court to set aside any language in any of these provisions or supersede it with some policy considerations.


      But to your question, I think as Roman mentioned earlier, obviously, the simplified wisdom in Supreme Court litigation is that the Court takes cases to reverse them. But in these procedural cases and in particular in these FTCA cases, the Court has been anything but predictable in how it's going to decide the cases.


And so just to highlight for everyone, the only two cases that it really engaged with the judgment bar were a case called Will v. Hallock and Simmons v. Himmelreich. And both of those decisions came out on grounds different than the parties really argued over. Both of them essentially came out in favor of the respondent plaintiffs, in one way or another. And both of them were unanimous decisions.


And so actually, I believe when Will was decided, Alito joined the court but was not participating in that decision, but he did join the unanimous decision in Simmons. And so although this is a police brutality case, the government accountability case, I think it's very unlikely that we see any sort of ideological breakdown based on that just because the issues ultimately in this case have a lot more to do with civil procedure and textual interpretation than they do anything related to the policies behind whether police officers should have more or less leeway when it comes to enforcing the law and balancing that with honoring the requirements of the Constitution.


Dean Reuter:  Very good. I still don’t see any questions. We're almost out of time. With that, let me give you each a chance just to express a final thought. And maybe let's go in reverse order than we opened. Roman Martinez, a final thought here?


Roman Martinez:  Yeah. I just want to say thank you again. And I think we've basically covered the tricky legal issues and also the broader policy issues. So I'll just close by wishing Patrick good luck on his argument, and I look forward to hearing how it goes.


Dean Reuter:  Patrick Jaicomo, final thought?


Patrick Jaicomo:  Yeah. Thank you, Roman. It's been great speaking with you today. And thanks to The Federalist Society for hosting this event. I'll just say we've gotten into the nitty gritty, all the textualist arguments that should really fire the synapses for The Federalist Society colleagues that we have here on the line.


      But from a very 30,000 foot view of what's going on here, ultimately, this case is about whether a completely innocent 21-year-old college student who got beaten up in the street is ever able to have a real day in court with the jury deciding whether what happened to him violated the Constitution.


      And so if you look at it from that perspective, the government's arguing James King should never have a day in court. And all that James King is arguing and the Institute for Justice in representing him is saying is let him have his day in court. If the police can come in and they can defend what they did and show that it was constitutional, so be it. But a jury should decide this case. It shouldn't be decided through these special protections that are carved out that only applies to government workers.


Dean Reuter:  Well, very good. I'm afraid we're going to leave it right there. My thanks to both our guests today, Roman Martinez and Patrick Jaicomo. We certainly appreciate your time and your expertise, your insights. I want to thank the audience as well, mention that the National Lawyers Convention registration is open to everyone. It's free and online, unless you want CLE, then there's a small charge for that. But also, remind the audience to monitor emails and the website for upcoming Teleforum Conference calls. But until the next call, we are adjourned. Thank you very much everyone.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at