SCOTUS Throws Bone to Plaintiffs on Federal Tort Claims

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By Melissa Heelan Stanzione

June 6 — A federal prisoner's suit against individual prison employees may proceed because it isn't barred by an earlier dismissal of a separate, related claim against the government, a unanimous U.S. Supreme Court held June 6 ( Simmons v. Himmelreich, 2016 BL 179234, U.S., No. 15-109 , 6/6/16 ).

The Federal Tort Claims Act's judgment bar provision doesn't apply to claims dismissed for falling within the act's exceptions section, the court held, affirming the Sixth Circuit.

For a case that presented a “complex statutory scheme,” the Supreme Court issued a “very clean opinion that will give good guidance to circuit courts,” Amy Kullenberg, an attorney who specializes in criminal law, told Bloomberg BNA June 6.

The court doesn't expect its opinion to open the floodgates to new suits, but the opinion shows some leniency to pro se litigants, who are at a disadvantage when filing suits, Kullenberg said.

Bright-Line Rule

The Court found a “bright-line rule” and applied it, Kullenberg said.

The justices “think this is not super-complicated,” she said.

“This case was simple for the court,” Allison M. Zieve, an attorney with Public Citizen Litigation Group, told Bloomberg BNA June 6.

The group filed an amicus brief on behalf of Himmelreich.

FTCA Provisions

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

FTCA Provisions at Issue


  •  28 U.S.C. §2680: Discretionary Function Exception—protects government employees from liability when part of their statutory duty relies on individual decision making
  •  28 U.S.C. §2676: Judgment Bar—bars multiple actions based on the same subject matter from being brought against the same person


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.

Inmate Beaten

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.

Plain-Text Result

“Congress says what it means and means what it says,” Justice Sonia Sotomayor wrote for the court.

We have no reason to doubt the plain-text result in this case, the court said.

The exceptions section of the FTCA says that the provisions of its chapter—Chapter 171—don't apply to claims based on performance of a discretionary duty, it said.

The judgment bar is also a provision of Chapter 171, the court said.

Thus, “the plain text of the ‘Exceptions' section” dictates that the judgment bar doesn't apply to a case such as this one—based on performance of a discretionary function, it said.

Because the judgment bar doesn't apply to Himmelreich's first suit, “Himmelreich is correct,” and his second suit against individual prison employees should be allowed to proceed, the court said.

This is a “pretty straightforward opinion,” Zieve said.

“The court's analysis of why it's right is really two paragraphs and the next section is just why the government's arguments are wrong,” she said.

‘Parade of Horribles.'

The government believes that this interpretation will induce a “parade of horribles,” the high court said.

The government argued that a finding that the judgment bar doesn't apply to claims in the FTCA's “exceptions” section would result in a “cavalcade” of filings that would harm the public fisc.

“To the contrary,” the court said.

The case “deals only with the judgment bar provision,” which prevents duplicative litigation, it said.

This interpretation “allows the statute to operate in an utterly sensible manner,” the court said.

Limited Holding

The court's policy considerations for its holding are apparent in the opinion, Kullenberg said.

If Himmelreich's case had been dismissed because the prison employees weren't negligent, Himmelreich wasn't harmed or he didn't prove his claims, he shouldn't have “a second bite at the money-damages apple,” the court said.

They wanted to strike a balance between offering prisoners access to the courts and preventing “crippling caseloads,” Kullenberg said.

Such summary judgment dismissals are much closer to rulings on the merits, Kullenberg said.

But Himmelreich's claim “never got close to something on the merits,” she said.

Policy Consideration

Another policy consideration involves courts' long-standing tradition to be lenient to pro se litigants like Himmelreich, who have limited access to information and are often confronted with interpreting complex statutory schemes, she said.

There's an obvious disparity between the parties—the prisoners on one side and the government on the other side—in these cases, Kullenberg said.

Litigants often don't even know how to classify their cases, and the courts often do it for them.

Sotomayor is aware of the lack of control such plaintiffs have over their cases, when, toward the end of the opinion, she acknowledges that the district courts control when a case gets processed and heard, Kullenberg said.

Claim Preclusion Analogy

The case doesn't resolve whether the judgment bar applies when an FTCA case has been dismissed for a non-merits reason unrelated to the exceptions, such as dismissal for failure to exhaust administrative remedies, Zieve said.

In a footnote analogizing the common-law doctrine of claim preclusion—which prevents duplicative litigation—to the judgment bar, the court gives guidance to lower courts on how the bar functions outside the context of the exceptions provision, Zieve said.

In the footnote, the court “strongly indicates that the judgment bar does not apply to non-merits dismissals without claim preclusive (res judicata) effect,” she said.

“The discussion in the body of the opinion” also supports this conclusion, she said.

“A dismissal under the ‘Exceptions' section would not be entitled to claim-preclusive effect; just so, the roughly analogous judgment bar should not foreclose a second suit against individual employees,” the court said.

This would be “passing strange,” it said.

The government didn't respond to a request for comments.

Roman Martinez of the Department of Justice represented the petitioners.

Christian G. Vergonis of Jones Day, Washington, argued for Himmelreich.

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

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

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