Argument analysis: Court splits on viability of Bivens claim after FTCA dismissal

If you read the briefs inSimmons v. Himmelreich, you know that it could be tricky to figure out when a courts dismissal of a federal prisoners Federal Tort Claims Act case forecloses his parallelBivensclaim. The issue involves no fewer than four interlocking FTCA provisions that together create quite a puzzle.

But for all the potential technicalities and complications in the case, the oral arguments turned on a surprisingly straightforward question: Does the plain language of just one FTCA provision, the exceptions provision, explicitly allow a parallel claim?

The question harkens back to the lead argument that Walter Himmelreich made in his merits brief. He pointed to Section 2680 of the FTCA, titled Exceptions, which says that [t]he provisions of this chapter and section 1346(b) of this titleshall not apply to over a dozen different types of claims that are altogether exempt from the FTCA. (This includes Himmelreichs FTCA claim, dismissed under the discretionary-function exception in Section 2680.) This means that the government has not waived immunity for these claims, and that the FTCA offers no cause of action, liability, or relief for them.

But by a literal reading, it also means that there is no bar to a non-FTCA claim arising out of the same events that falls within a Section 2680 exception. Thats because the provisions of this chapter in Section 2680 include the FTCA judgment bar itself. In other words, the plain language of Section 2680 exempts from the excepted claims (like Himmelreichs FTCA claim) the very FTCA provision that bars a person like Himmelreich from filing a parallel claim. If this is right and the plain language seems to support it then the exceptions provision explicitly allows Himmelreichs parallelBivensclaim. This may be the cleanest path to victory for Himmelreich, and it seemed to have the support of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

While the argument seems straightforward, there are some problems, according to the federal government. For example, if this reading of Section 2680 is right, then other key sections of the FTCA similarly wouldnt apply to Section 2680 claims. In particular, the FTCAs definitions section wouldnt apply, and the section precluding state tort suits against federal agencies that could otherwise be subject to suit under their sue-and-be-sued authority wouldnt apply. According to the government, this would lead to absurdities (in the case of the FTCAs definitions section) and massively expand[ed] direct liability for the government, contrary to the intent of the FTCA (in the case of the section precluding state tort suits against federal agencies with sue-and-be-sued authority). (The provision applying the Federal Rules of Civil Procedure and the appellate review provision wouldnt apply to Section 2680 claims, either. But its not clear that these lead to significant problems under the FTCA.) Chief Justice John Roberts pushed back against Christian Vergonis, arguing on Himmelreichs behalf, on these points, suggesting that he wasnt persuaded by Himmelreichs literal reading of Section 2680.

The Court also spent significant time trying to figure out if Himmelreichs Section 2680 argument runs contrary to the result inUnited States v. Smith. The government argued that if Section 2680 means precisely what it says (as Himmelreich claims), thenSmithcame out wrong. ButSmithdoesnt address the question in this case, and it doesnt compel the result. The arguments didnt produce any further clarity onSmithor suggest thatSmithmight sway anyones vote. In the end,Smithis probably neutral: the governmentsSmithargument alone doesnt seem likely to change any positions on the Court.

Other arguments were in play, but barely. For example, Sotomayor opened with a line of questions for the government about why something as arbitrary as timing should matter that is, why a plaintiffsBivensclaim should be dismissed if filedafterhis FTCA claim, but not if filedbeforeit. Ginsburg emphasized that the FTCA claim and theBivensclaim were different the former looking to the government, but the latter looking to the individual officer and why that means that HimmelreichsBivensclaim is not subject to claim preclusion. And Justice Samuel Alito, leaning in the opposite direction, against Himmelreich, asked several times, and in several different ways, why a plain reading of the term judgment in the FTCAs judgment bar didnt answer the case. He also asked whether the Court should even address Himmelreichs Section 2680 argument, given that the Sixth Circuit didnt rule on it.

Based on the arguments, we could be looking at a four-to-four split, with the Courts more liberal Justices siding with Himmelreich and his Section 2680 argument, and the more conservative Justices siding with the government and its judgment-bar argument. (Justice Anthony Kennedy asked just two questions, but they seemed to lean against Himmelreich.) That would leave the Sixth Circuits ruling in favor of Himmelreich in place. But it would also leave Himmelreichs Section 2680 argument and the larger question whether a prisoners dismissed FTCA claim can foreclose his parallelBivensclaim open and on the table.