No Bologna Here:SCOTUS Digests Complex FTCA Case

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By Melissa Stanzione

March 22 — Federal prisoners' access to courts could be limited by how the U.S. Supreme Court interprets provisions of the Federal Tort Claims Act that were in dispute during oral argument March 22.

The case boils down to statutory interpretation: Does a dismissal for lack of subject-matter jurisdiction—as opposed to a determination on the merits—under the discretionary function exception of the FTCA qualify as a judgment subject to the FTCA's judgment bar?

The FTCA allows private individuals to sue the government for most torts committed by individuals acting on behalf of the U.S.

The discretionary function exception, at 28 U.S.C. §2680, protects government employees from liability when part of their statutory duty relies on individual decision making.

The judgment bar, at 28 U.S.C. §2676, bars multiple actions based on the same subject matter from being brought against the same person.

If the Supreme Court opts for a strict interpretation of Section 2680, federal prisoners' access to the courts could be greatly limited. A looser interpretation would force the government to defend many more lawsuits.

‘Very Complicated' Issue

The issue under Section 2680 “is very complicated,” Justice Samuel A. Alito Jr. said.

Here, Walter Himmelreich was serving time for producing child pornography when he was severely beaten by another inmate, who previously warned prison officials he would “smash” a pedophile.

Himmelreich sued prison officials under the FTCA and later filed a separate Bivens claim, alleging an Eighth Amendment violation.

A Bivens action is a claim against federal officials in their individual capacities for violating a person's constitutional rights.

The U.S. Court of Appeals for the Sixth Circuit ultimately held that the district court's dismissal of the FTCA suit for lack of subject-matter jurisdiction under the discretionary function exception—one of the exceptions listed in Section 2680—wasn't a “judgment” that would trigger the FTCA's judgment bar to preclude the Bivens suit.

Section 2680 says that “the provisions of this chapter and section 1346(b) of this title shall not apply to” several claims exempted from the FTCA, such as the discretionary function exception.

The “chapter” referred to is Chapter 171 of Title 28, which is comprised of Sections 2671 to 2680 and includes the judgment bar, Section 2676.

Apples, Cherries and Bologna

Roman Martinez, arguing for the government, said you can't file two claims for the same alleged injury.

“You can't take a second bite out of the apple,” Martinez said.

The Bivens claim here could have been filed first to avoid the judgment bar, Martinez said. “The courtroom door is never closed to a Bivens claim,” Martinez, of the Solicitor General's Office, said.

What does “judgment” mean to you? Alito asked Martinez.

“In your reply brief, you say that perhaps a technical or a procedural judgment is not a judgment under the judgment bar provision. So what does that mean? It is a technical or procedural judgment?” Alito said.

“We weren't trying to cherry pick definitions,” Martinez said.

When a case is resolved for the government on the basis of a Section 2680 exception, it's a jurisdictional and substantive adjudication of the claim, he said.

The language of 2680 says that “the provisions of this chapter don't apply to categories of potential claims,” Martinez said, distinguishing claims from judgments.

The judgment bar operates on the basis of FTCA judgments, not claims, which “are obviously different,” Martinez said.

Martinez continued, “A claim is an assertion of a legal right before it's been adjudicated or while it's being adjudicated—”

“That's slicing the bologna really thin,” Justice Elena Kagan interrupted to laughter.

Literal Reading of FTCA

Christian G. Vergonis, who represented Himmelreich, argued that a plain reading of Section 2680 showed that the judgment bar didn't apply.

The “ ‘shall not apply' directive of Section 2680” makes perfectly clear that the act's other provisions—sections 2671-2680—don't apply. “This unambiguously includes the judgment bar,” Vergonis, of Jones Day, Washington said.

Section 2680 “has a lot of terms that would be subject to some litigation or confusion,” Chief Justice John G. Roberts Jr. said.

Under your argument, the statute's definitional provisions are “off the table,” Roberts said.

They're not, Vergonis said, “because definitions govern statutory terms.”

And that's not slicing the bologna thin at all, Vergonis said.

What if you have a claim against a U.S. contractor and you're saying not to look to the definitions to determine who's a contractor because that provision doesn't apply? Roberts asked.

The definition can be used to understand Section 2680 and “once you have that understanding, the substantive provisions don't apply,” Vergonis said.

Similar Arguments?

Martinez said something “very similar” to Vergonis's argument that the definitional section applies because definitions apply to terms and not claims, Kagan said.

“He said that the judgment bar applies to judgments, not claims. So if you're right as to that, why isn't he right as well?” she asked.

“It's not the context of where you need to read a definition in order to sensibly apply the words of the provision,” Vergonis said.

“So you want us to decide this case based on a literal reading of 2680?” Alito asked.

The Sixth Circuit didn't decide the case on that ground so we don't have to, do we? he asked.

We could simply decide whether the Sixth Circuit was right by applying “the same literal reading” as you do and hold that “a judgment is a judgment, and not necessarily on the merits,” because—as the argument has shown—the issue under 2680 “is very complicated,” Alito said.

The two issues are intertwined “and it would be very artificial for the court to ignore the text of one of those provisions and focus solely on the text of the other provision,” Vergonis said.

To contact the reporter on this story: Melissa Stanzione in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

The argument transcript is at