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

If you read the briefs in Simmons v. Himmelreich, you know that it could be tricky to figure out when a court’s dismissal of a federal prisoner’s Federal Tort Claims Act case forecloses his parallel Bivens claim. 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 title shall not apply to” over a dozen different types of claims that are altogether exempt from the FTCA. (This includes Himmelreich’s 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. That’s 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 Himmelreich’s 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 Himmelreich’s parallel Bivens claim. 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 wouldn’t apply to Section 2680 claims. In particular, the FTCA’s definitions section wouldn’t 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 wouldn’t apply. According to the government, this would lead to absurdities (in the case of the FTCA’s 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 wouldn’t apply to Section 2680 claims, either. But it’s not clear that these lead to significant problems under the FTCA.) Chief Justice John Roberts pushed back against Christian Vergonis, arguing on Himmelreich’s behalf, on these points, suggesting that he wasn’t persuaded by Himmelreich’s literal reading of Section 2680.

The Court also spent significant time trying to figure out if Himmelreich’s Section 2680 argument runs contrary to the result in United States v. Smith. The government argued that if Section 2680 means precisely what it says (as Himmelreich claims), then Smith came out wrong. But Smith doesn’t address the question in this case, and it doesn’t compel the result. The arguments didn’t produce any further clarity on Smith or suggest that Smith might sway anyone’s vote. In the end, Smith is probably neutral: the government’s Smith argument alone doesn’t 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 plaintiff’s Bivens claim should be dismissed if filed after his FTCA claim, but not if filed before it. Ginsburg emphasized that the FTCA claim and the Bivens claim were different – the former looking to the government, but the latter looking to the individual officer – and why that means that Himmelreich’s Bivens claim 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 FTCA’s judgment bar didn’t answer the case. He also asked whether the Court should even address Himmelreich’s Section 2680 argument, given that the Sixth Circuit didn’t rule on it.

Based on the arguments, we could be looking at a four-to-four split, with the Court’s 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 Circuit’s ruling in favor of Himmelreich in place. But it would also leave Himmelreich’s Section 2680 argument – and the larger question whether a prisoner’s dismissed FTCA claim can foreclose his parallel Bivens claim – open and on the table.