Tomorrow’s argument in Will v. Hallock

The Supreme Court will hear argument Monday concerning when a plaintiff who sued the federal government for an alleged constitutional violation is barred from suing individual government employees for the same conduct. The Court has also directed the parties to argue whether the Second Circuit was correct to hear an appeal on the issue even though no final judgment had been issued in the case.

Will v. Hallock arises under the Federal Tort Claims Act, which authorizes suit against the United States for many torts by government employees. As the Federal Tort Claims Act giveth, however, so it taketh away, by limiting plaintiffs’ ability to sue government employees in their individual capacities. The Act’s “judgment bar” states 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.” The judgment bar clearly prohibits plaintiffs from bringing tort suits against government employees when they have won or lost a FTCA suit against the government on their claim’s merits. But the courts of appeals disagree over whether the judgment bar also takes effect when a suit against the government was dismissed because it was not authorized under the FTCA at all.

Assistant to the Solicitor General Douglas Hallward-Driemeier will argue for the government that the plaintiffs’ suit against government employees in this case was barred. Allison M. Zieve of Public Citizen Litigation Group will argue for respondents Susan Hallock and Ferncliff Associates that the lawsuit was permitted. The opening briefs are available here. The government’s reply brief is available here.

Will v. Hallock arises out of a child pornography raid gone awry. Customs agents seized computers and business records belonging to Susan Hallock and her home business because they suspected her husband of possessing child pornography. Her husband, however, appears to have been a victim of identity theft. Hallock alleges that his credit card number was used without his authorization on a child pornography Internet site. No child pornography was found on the seized computers and no charges were filed, but Hallock claims that when her equipment was returned, much of it was damaged and unusable, and she was forced to shut down her software company.

Hallock’s lawsuit against the federal government claiming a violation of her Fifth Amendment rights ran up against the FTCA’s limitations. While the Act provides federal jurisdiction and waives sovereign immunity for many tort claims, it excludes other claims, including those arising from “the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” The district court concluded that Hallock’s FTCA claims fell within this exception and dismissed them for lack of subject matter jurisdiction. Before the district court did so, however, Hallock filed a second lawsuit against the federal agents who participated in the search and seizure.

The government argues that the plain language of the FTCA bars Hallock’s second suit. It argues that the order dismissing her claims against the government qualifies as a “judgment,” and that the initial suit was brought “under” the FTCA even if Hallock could not recover on her claim. The government argues that the Court has previously interpreted phrases like the judgment bar’s provision for suits “under” the FTCA to include cases where recovery was ultimately precluded by the Act’s exceptions.

Hallock, in turn, argues that her suit against the government does not trigger the judgment bar because it involved neither a “judgment” nor an action under the FTCA. She argues that the judgment bar was simply intended to clarify that res judicata forbids plaintiffs who have sued the government from re-litigating decided claims by bringing suit against government employees. According to Hallock, res judicata does not prevent plaintiffs from litigating claims that were never decided on their merits. Turning to the language of the statute, Hallock argues that where a prior lawsuit did not involve a decision on the merits, no “judgment” bars a subsequent suit against government employees. Furthermore, she argues, her initial lawsuit does not involve a claim “under” the FTCA because the Court held that the FTCA did not apply to her case and dismissed it for lack of subject matter jurisdiction.

The Second Circuit agreed with Hallock that her action did not trigger the judgment bar, “because the action was not properly brought under the Federal Tort Claims Act in the first place and is a nullity.” “We hold that for the judgment bar to apply, the action must first be a proper one for consideration under the Federal Tort Claims Act,” the Second Circuit wrote. The appeals court noted that its holding conflicted with a decision of the Seventh Circuit.

The parties will also argue whether the Second Circuit had jurisdiction to hear an interlocutory appeal after the district court denied the government’s summary judgment motion on the judgment-bar issue. Cohen v. Beneficial Industrial Loan Corp. permits parties to immediately appeal the “small class” of issues that are collateral to the merits of the underlying case and finally determined by the court below and “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Hallock argues that the order denying summary judgment in this case flunks Cohen because it is not “effectively unreviewable on appeal from a final judgment.” She suggests that the judgment bar’s closest analog is the doctrine of res judicata, and the Court has held that res judicata determinations do not meet the “effectively unreviewable” standard.

In contrast, the government argues, and the Second Circuit agreed, that the judgment bar confers a right to avoid litigation entirely, and that the right would be lost if the defendants could not appeal a judgment-bar decision before the end of trial. The government argues that the judgment bar’s protection most closely resembles the qualified immunity given to government employees acting in good faith and the state sovereign immunity protected by the Eleventh Amendment. Parties that are denied those immunities may appeal immediately.