Brownback v. King

P R E L I M I N A R Y P R I N T
Volume 592 U. S. Part 2
Pages 209–223
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
February 25, 2021
REBECCA A. WOMELDORF
reporter of decisions
Page Proof Pending Publication
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

Page Proof Pending Publication
OCTOBER
TERM, 2020
209
Syllabus
BROWNBACK et al. v. KING
certiorari
to the united states court of appeals for
the sixth circuit
No. 19–546. Argued November 9, 2020—Decided February 25, 2021
The Federal Tort Claims Act (FTCA) allows a plaintiff to bring certain
state-law tort claims against the United States for torts committed by
federal employees acting within the scope of their employment, pro-
vided that the plaintiff alleges six statutory elements of an actionable
claim. See 28 U. S. C. § 1346(b). Another provision, known as the
judgment bar, provides that “[t]he judgment in an action under section
1346(b)” shall bar “any action by the claimant” involving the same sub-
ject matter against the federal employee whose act gave rise to the
claim. § 2676. Respondent James King sued the United States under
the FTCA after a violent encounter with Todd Allen and Douglas
Brownback, members of a federal task force. He also sued the offcers
individually under the implied cause of action recognized by Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U. S. 388. The District Court
dismissed his FTCA claims, holding that the Government was immune
because the offcers were entitled to qualifed immunity under Michigan
law, or in the alternative, that King failed to state a valid claim under
Federal Rule of Civil Procedure 12(b)(6). The court also dismissed
King 's Bivens claims, ruling that the offcers were entitled to federal
qualifed immunity. King appealed only the dismissal of his Bivens
claims. The Sixth Circuit found that the District Court's dismissal of
King 's FTCA claims did not trigger the judgment bar to block his
Bivens claims.
Held: The District Court's order was a judgment on the merits of the
FTCA claims that can trigger the judgment bar. Pp. 214–219.
(a) Similar to common-law claim preclusion, the judgment bar re-
quires a fnal judgment “ `on the merits,' ” Semtek Int'l Inc. v. Lockheed
Martin Corp., 531 U. S. 497, 502. Here, the District Court's summary
judgment ruling dismissing King 's FTCA claims hinged on a quintes-
sential merits decision: whether the undisputed facts established all the
elements of King 's FTCA claims. See Arbaugh v. Y & H Corp., 546
U. S. 500, 510–511. The court's alternative Rule 12(b)(6) holding also
passed on the substance of King 's FTCA claims, as a 12(b)(6) ruling
concerns the merits. Id., at 506–507. Pp. 214–217.
(b) In passing on King 's FTCA claims, the District Court also deter-
mined that it lacked subject-matter jurisdiction over those claims. In

210 BROWNB
ACK v. KING
Opinion of the Court
most cases, a plaintiff 's failure to state a claim under Rule 12(b)(6) does
not
deprive a federal court of subject-matter jurisdiction. See Steel Co.
v. Citizens for Better Environment, 523 U. S. 83, 89. Here, however,
in the unique context of the FTCA, all elements of a meritorious claim
are also jurisdictional. Thus, even though a plaintiff need not prove a
§ 1346(b)(1) jurisdictional element for a court to maintain subject-matter
jurisdiction over his claim, see FDIC v. Meyer, 510 U. S. 471, 477, be-
cause King 's FTCA claims failed to survive a Rule 12(b)(6) motion to dis-
miss, the court also was deprived of subject-matter jurisdiction. Gener-
ally, a court may not issue a ruling on the merits when it lacks subject-
matter jurisdiction, see Steel Co., 523 U. S., at 101–102, but where, as here,
pleading a claim and pleading jurisdiction entirely overlap, a ruling that
the court lacks subject-matter jurisdiction may simultaneously be a judg-
ment on the merits that can trigger the judgment bar. Pp. 217–219.
917 F. 3d. 409, reversed.
Thomas, J., delivered the opinion for a unanimous Court. Sotomayor,
J., fled a concurring opinion, post, p. 219.
Michael R. Huston argued the cause for petitioners.
With him on the briefs were Solicitor General Francisco,
Acting Solicitor General Wall, Assistant Attorney General
Hunt, Deputy Solicitor General Wall, Deputy Assistant At-
torney General Mooppan, and Mark B. Stern.
Patrick M. Jaicomo argued the cause for respondent.
With him on the brief were Anya Bidwell and D. Andrew
Portinga.*
Justice Thomas delivered the opinion of the Court.
The Federal Tort Claims Act (FTCA) allows a plaintiff to
bring certain state-law tort suits against the Federal Gov-
*Briefs of amici curiae urging affrmance were fled for the American
Civil Liberties Union et al. by David D. Cole, Jennesa Calvo-Friedman,
Daniel S. Korobkin, and Miriam J. Aukerman; for the Cato Institute
et al. by Kelsi Brown Corkran, Thomas M. Bondy, Benjamin Chagnon,
Rachel G. Shalev, Clark M. Neily III, Jay R. Schweikert, and Jonathan
H. Feinberg; for the Law Enforcement Action Partnership by Robert A.
Long, Jr.; for Members of Congress by Angela C. Vigil and Joshua D.
Odintz; for Public Citizen by Allison M. Zieve, Kaitlin E. Leary, and Scott
L. Nelson; and for James E. Pfander et al. by Carter G. Phillips, Jeffery
T. Green, and Sarah O'Rourke Schrup.
Page Proof Pending Publication

Cite
as: 592 U. S. 209 (2021)
211
Opinion of the Court
ernment. 28 U. S. C. § 2674; see also § 1346(b). It also in-
cludes
a provision, known as the judgment bar, which pre-
cludes “any action by the [plaintiff], by reason of the same
subject matter, against the employee of the government
whose act or omission gave rise to the claim” if a court enters
“[t]he judgment in an action under section 1346(b).” § 2676.
The Sixth Circuit held that the D istr ic t Cour t's order
dismissing the plaintiff 's FTCA claims did not trigger the
judgment bar because the plaintiff 's failure to establish all
elements of his FTCA claims had deprived the court of
subject-matter jurisdiction. We disagree and hold that the
District Court's order also went to the merits of the claim
and thus could trigger the judgment bar.
I
A
The FTCA streamlined litigation for parties injured by
federal employees acting within the scope of their employ-
ment. Before 1946, a plaintiff could sue a federal employee
directly for damages, but sovereign immunity barred suits
against the United States, even if a similarly situated private
employer would be liable under principles of vicarious liabil-
ity. J. Pfander & N. Aggarwal, Bivens, the Judgment Bar,
and the Perils of Dynamic Textualism, 8 U. St. Thomas L. J.
417, 424–425 (2011); see also Philadelphia Co. v. Stimson,
223 U. S. 605, 619–620 (1912). Despite that immunity, the
Government often would provide counsel to defendant em-
ployees or indemnify them. Pfander, 8 U. St. Thomas L. J.,
at 425. In addition, Congress passed private bills that
awarded compensation to persons injured by Government
employees. Id., at 424, n. 39. But by the 1940s, Congress
was considering hundreds of such private bills each year.
Ibid.
1
“Critics worried about the speed and fairness with
which Congress disposed of these claims.” Id., at 426.
1
In 1939 and 1940 the 76th Congress considered 1,763 private bills, of
which 315 became law. Pfander, 8 U. St. Thomas L. J., at 424, n. 39.
Page Proof Pending Publication

212 BROWNB
ACK v. KING
Opinion of the Court
“In 1946, Congress passed the FTCA, which waived the
sovereig
n immunity of the United States for certain torts
committed by federal employees” acting within the scope of
their employment. FDIC v. Meyer, 510 U. S. 471, 475–476
(1994). The Act in effect ended the private bill system by
transferring most tort claims to the federal courts. See
Pfander, 8 U. St. Thomas. L. J., at 424, n. 39. Plaintiffs were
(and are) required to bring claims under the FTCA in federal
district court. Federal courts have jurisdiction over these
claims if they are “actionable under § 1346(b).” Meyer, 510
U. S., at 477. A claim is actionable if it alleges the six ele-
ments of § 1346(b), which are that the claim be:
“[1] against the United States, [2] for money damages,
. . . [3] for injury or loss of property, or personal injury
or death [4] caused by the negligent or wrongful act or
omission of any employee of the Government [5] while
acting within the scope of his offce or employment, [6]
under circumstances where the United States, if a pri-
vate person, would be liable to the claimant in accord-
ance with the law of the place where the act or omission
occurred.” Ibid. (quoting § 1346(b)).
While waiving sovereign immunity so parties can sue the
United States directly for harms caused by its employees,
the FTCA made it more diffcult to sue the employees them-
selves by adding a judgment bar provision. That provision
states: “The judgment in an action under section 1346(b) of
this title 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.” § 2676. “[O]nce a plaintiff receives a judg-
ment (favorable or not) in an FTCA suit,” the bar is trig-
gered, and “he generally cannot proceed with a suit against
an individual employee based on the same underlying facts.”
Simmons v. Himmelreich, 578 U. S. 621, 625 (2016). The
Page Proof Pending Publication

Cite
as: 592 U. S. 209 (2021)
213
Opinion of the Court
Act thus opened a new path to relief (suits against the
U
nited St ates) wh i le narrow i ng the ear l ier one (suits
against employees).
B
This case involves a violent encounter between respondent
James King and offcers Todd Allen and Douglas Brownback,
members of a federal task force, who mistook King for a fugi-
tive. King sued the United States under the FTCA, alleg-
ing that the offcers committed six torts under Michigan law.
He also sued the offcers individually under the implied cause
of action recognized by Bivens v. Six Unknown Fed. Narcot-
ics Agents, 403 U. S. 388 (1971), alleging four violations of
his Fourth Amendment rights. The defendants moved to
dismiss under Federal Rule of Civil Procedure 12(b)(1) for
lack of subject-matter jurisdiction and under Rule 12(b)(6)
for failure to state a claim. In the alternative, they moved
for summary judgment.
The District Court dismissed King 's claims. As to his
FTCA claims, the court granted the Government's sum-
mary judgment motion.
2
It found that the undisputed facts
showed that the offcers did not act with malice. The off-
cers thus would have been entitled to state qualifed im-
munity had Michigan tort claims been brought against
them. See Odom v. Wayne County, 482 Mich. 459, 473–474,
760 N. W. 2d 217, 224–225 (2008). The court, following
its own precedent, ruled that the Government was immune
because it retains the beneft of state-law immunities avail-
able to its employees. The court also ruled in the alter-
native that King 's FTCA claims failed under Rule 12(b)(6)
2
Like the Sixth Circuit, we construe the District Court's primary ruling
on the FTCA claims as a grant of summary judgment for the defendants
because its ruling relied on the parties “ `Joint Statement of Facts . . .
unless otherwise indicated.' ” King v. United States, 917 F. 3d 409, 416,
n. 1 (CA6 2019) (quoting ECF Doc. 91, p. 1).
Page Proof Pending Publication

Page Proof Pending Publication
214 BROWNB
ACK v. KING
Opinion of the Court
because his complaint did not present enough facts to state
a
plausible claim to relief for any of his six tort claims.
The court dismissed King 's Bivens claims as well, ruling
that the defendants were entitled to federal qualifed im-
munity. King appealed only the dismissal of his Bivens
claims.
As a threshold questi on, the Sixth Circuit assessed
whether the dismissal of King 's FTCA claims triggered the
judgment bar and thus blocked the parallel Bivens claims.
See King v. United States, 917 F. 3d 409, 418–421 (2019). It
did not, according to the Sixth Circuit, because “the district
court dismissed [King]'s FTCA claim[s] for lack of subject-
matter jurisdiction” when it determined that he had not
stated a viable claim and thus “did not reach the merits.”
Id., at 419; but see Unus v. Kane, 565 F. 3d 103, 121–122
(CA4 2009) (holding that summary judgment on the plain-
tiffs' FTCA claims triggered judgment bar with respect to
Bivens claims). The Sixth Circuit then held that the de-
fendant offcers were not entitled to qualifed immunity and
reversed the District Court.
We granted certiorari, 589 U. S. ––– (2020), and now
reverse.
II
A
The judgment bar provides that “[t]he judgment in an ac-
tion under section 1346(b)” shall bar “any action by the
claimant” involving the same subject matter against the em-
ployee of the Federal Government whose act gave rise to the
claim. § 2676. Here, the District Court entered a “Judg-
ment . . . in favor of Defendants and against Plaintiff.” ECF
Doc. 92. The parties agree that, at a minimum, this judg-
ment must have been a fnal judgment on the merits to trig-
ger the bar, given that the “provision functions in much the
same way as [the common-law doctrine of claim preclusion].”

Page Proof Pending Publication
Cite
as: 592 U. S. 209 (2021)
215
Opinion of the Court
Simmons, 578 U. S., at 630, n. 5 (internal quotation marks
omitted).
3
W
e agree.
4
B
This Court has explained that the judgment bar was
drafted against the backdrop doctrine of res judicata. See
ibid.
5
To “trigge[r] the doctrine of res judicata or claim pre-
clusion” a judgment must be “ `on the merits.' ” Semtek Int'l
Inc. v. Lockheed Martin Corp., 531 U. S. 497, 502 (2001).
Under that doctrine as it existed in 1946, a judgment is “on
the merits” if the underlying decision “actually `passes di-
rectly on the substance of a particular claim' before the court.”
Id., at 501–502 (brackets omitted).
6
Thus, to determine
3
The terms res judicata and claim preclusion often are used inter-
changeably. See Lucky Brand D ungarees, Inc. v. Marcel Fash io ns
Group, Inc., 590 U. S. –––, ––– (2020). But res judicata “comprises two
distinct doctrines.” Ibid. The frst is issue preclusion, also known as
collateral estoppel. Ibid. It precludes a party from relitigating an issue
actually decided in a prior case and necessary to the judgment. Ibid.
The second doctrine is claim preclusion, sometimes itself called res judi-
cata. Ibid. Claim preclusion prevents parties from relitigating the same
“claim” or “ `cause of action,' ” even if certain issues were not litigated in
the prior action. Ibid. Suits involve the same “claim” or “ `cause of ac-
tion' ” if the later suit “ ` “aris[es] from the same transaction” ' ” or involves
a “ `common nucleus of operative facts.' ” Ibid.
4
King argues, among other things, that the judgment bar does not apply
to a dismissal of claims raised in the same lawsuit because common-law
claim preclusion ordinarily “is not appropriate within a single lawsuit.”
18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure
§ 4401 (3d ed. Supp. 2020). The Sixth Circuit did not address those argu-
ments, and “we are a court of review, not of frst view.” Cutter v. Wilkin-
son, 544 U. S. 709, 718, n. 7 (2005). We leave it to the Sixth Circuit to
address King 's alternative arguments on remand.
5
The parties disagree about how much the judgment bar expanded on
common-law preclusion, but those disagreements are not relevant to our
decision. See n. 4, supra.
6
We use the term “on the merits” as it was used in 1946, to mean a
decision that passed on the substance of a particular claim. “[O]ver the
years the meaning of the term `judgment on the merits' `has gradually

216 BROWNB
ACK v. KING
Opinion of the Court
if the District Court's decision is claim preclusive, we must
deter
mine if it passed directly on the substance of King 's
FTCA claims. We conclude that it did.
The District Court's summary judgment ruling hinged on
a quintessential merits decision: whether the undisputed
facts established all the elements of King 's FTCA claims.
See Arbaugh v. Y & H Corp., 546 U. S. 500, 510–511 (2006).
The court noted that one element of an FTCA claim is that
the plaintiff establish that the Government employee would
be liable under state law. The court then explained that
Michigan law provides qualifed immunity for Government
employees who commit intentional torts but act in subjective
good faith. See Odom, 482 Mich., at 461, 481–482, 760 N. W.
2d, at 218, 229. And it concluded that, because the undis-
puted facts here showed that the offcers would have been
entitled to immunity from King 's tort claims, the United
States, by extension, was not liable under the FTCA.
7
The court's alternative Rule 12(b)(6) holding also passed
on the substance of King 's FTCA claims. The District
Court ruled that the FTCA count in King 's complaint did
not state a claim, because even assuming the complaint's ve-
racity, the offcers used reasonable force, had probable cause
to detain King, and otherwise acted within their authority.
“If the judgment determines that the plaintiff has no cause
of action” based “on rules of substantive law,” then “it is on
the merits.” Restatement of Judgments § 49, Comment a,
p. 193 (1942). A ruling under Rule 12(b)(6) concerns the
undergone change' ” and now encompasses some judgments “that do not
pass upon the substantive merits of a claim and hence do not (in many
jurisdictions) entail claim-preclusive effect.” Semtek, 531 U. S., at 502.
Regardless, the FTCA judgment in this case is an “on the merits” decision
that passes on the “substance” of King 's FTCA claims under the 1946
meaning or present day meaning of those terms.
7
We express no view on the availability of state-law immunities in this
context. Compare Medina v. United States, 259 F. 3d 220, 225, n. 2 (CA4
2001), with Villafranca v. United States, 587 F. 3d 257, 263, and n. 6
(CA5 2009).
Page Proof Pending Publication

Cite
as: 592 U. S. 209 (2021)
217
Opinion of the Court
merits. Cf. Arbaugh, 546 U. S., at 506–507. The District
Cour
t evaluated King 's six FTCA claims under Rule 12(b)(6)
and ruled that they failed for reasons of substantive law.
C
The one complication in this case is that it involves over-
lapping questions about sovereign immunity and subject-
matter jurisdiction. In such cases, the “merits and jurisdic-
tion will sometimes come intertwined,” and a court can
decide “all . . . of the merits issues” in resolving a juris-
dictional question, or vice versa. Bolivarian Republic of
Venezuela v. Helmerich & Payne Int'l Drilling Co., 581 U. S.
170, 178 (2017). That occurred here. The District Court
passed on the substance of King 's FTCA claims and found
them implausible. In doing so, the District Court also de-
termined that it lacked jurisdiction. But an on-the-merits
judgment can still trigger the judgment bar, even if that
determination necessarily deprives the court of subject-
matter jurisdiction.
The District Court did lack subject-matter jurisdiction
over King 's FTCA claims. In most cases, a plaintiff 's failure
to state a claim under Rule 12(b)(6) does not deprive a fed-
eral court of subject-matter jurisdiction. See Steel Co. v.
Citizens for Better Environment, 523 U. S. 83, 89 (1998).
“Dismissal for lack of subject-matter jurisdiction . . . is
proper only when the claim is so . . . `completely devoid of
merit as not to involve a federal controversy.' ” Ibid.
However, a plaintiff must plausibly allege all jurisdictional
elements. See, e. g., Dart Cherokee Basin Operating Co. v.
Owens, 574 U. S. 81, 89 (2014). And in the unique context
of the FTCA, all elements of a meritorious claim are also
jurisdictional. Meyer, 510 U. S., at 477. So even though a
plaintiff need not prove a § 1346(b)(1) jurisdictional element
for a court to maintain subject-matter jurisdiction over his
claim, see ibid., a plaintiff must plausibly allege all six FTCA
elements not only to state a claim upon which relief can be
Page Proof Pending Publication

218 BROWNB
ACK v. KING
Opinion of the Court
granted but also for a court to have subject-matter juris-
dic
tion over the claim. That means a plaintiff must plausi-
bly allege that “the United States, if a private person,
would be liable to the claimant” under state law both to
survive a merits determination under Rule 12(b)(6) and
to establish subject-matter jurisdiction. § 1346(b)(1). Be-
cause King 's tort claims failed to survive a Rule 12(b)(6)
motion to dismiss, the United States necessarily retained
sovereign immunity, also depriving the court of subject-
matter jurisdiction.
Ordinarily, a court cannot issue a ruling on the merits
“when it has no jurisdiction” because “to do so is, by very
defnition, for a court to act ultra vires.” Steel Co., 523 U. S.,
at 101–102. But where, as here, pleading a claim and plead-
ing jurisdiction entirely overlap, a ruling that the court lacks
subject-matter jurisdiction may simultaneously be a judg-
ment on the merits that triggers the judgment bar.
8
A dis-
missal for lack of jurisdiction is still a “judgment.” See
Restatement of Judgments § 49, Comment a, at 193–194 (dis-
cussing “judgment . . . based on the lack of jurisdiction”).
And even though the District Court's ruling in effect de-
prived the court of jurisdiction, the District Court necessar-
ily passed on the substance of King 's FTCA claims. See
Part II–B, supra. Under the common law, judgments were
preclusive with respect to issues decided as long as the court
had the power to decide the issue. See Restatement of
Judgments § 49, Comment b, at 195–196. Because “a federal
court always has jurisdiction to determine its own jurisdic-
8
In cases such as this one where a plaintiff fails to plausibly allege an
element that is both a merit element of a claim and a jurisdictional ele-
ment, the district court may dismiss the claim under Rule 12(b)(1) or Rule
12(b)(6). Or both. The label does not change the lack of subject-matter
jurisdiction, and the claim fails on the merits because it does not state a
claim upon which relief can be granted. However, in other cases that
overlap between merits and jurisdiction may not exist. In those cases,
the court might lack subject-matter jurisdiction for nonmerits reasons, in
which case it must dismiss the case under just Rule 12(b)(1).
Page Proof Pending Publication

Cite
as: 592 U. S. 209 (2021)
219
Sotomayor, J., concurring
tion,” United States v. Ruiz, 536 U. S. 622, 628 (2002), a fed-
era
l court can decide an element of an FTCA claim on the
merits if that element is also jurisdictional. The District
Court did just that with its Rule 12(b)(6) decision.
9
***
We conclude that the District Court's order was a judg-
ment on the merits of the FTCA claims that can trigger
the judgment bar. The judgment of the United States
Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.
Justice Sotomayor, concurring.
I join the Court's opinion because I agree that the District
Court dismissed King 's Federal Tort Claims Act (FTCA)
claims on the merits. Importantly, the Court does not today
decide whether an order resolving the merits of an FTCA
claim precludes other claims arising out of the same subject
matter in the same suit. Although the parties briefed the
issue, it was not the basis of the lower court's decision. See
ante, at 213, n. 4. I write separately to emphasize that, while
many lower courts have uncritically held that the FTCA's
judgment bar applies to claims brought in the same action,
there are reasons to question that conclusion. This issue
merits far closer consideration than it has thus far received.
King argues that the judgment bar merely “supplements
common-law claim preclusion by closing a narrow gap,” pre-
9
The District Court did not have the power to issue its summary judg-
ment ruling because that decision was not necessary for the court “to
determine its own jurisdiction.” Ruiz, 536 U. S., at 628. The court
should have assessed whether King 's FTCA claims plausibly alleged the
six elements of § 1346(b)(1) as a threshold matter, and then dismissed those
claims for lack of subject-matter jurisdiction once it concluded they were
not plausibly alleged. See Steel Co. v. Citizens for Better Environment,
523 U. S. 83, 94–95 (1998).
Page Proof Pending Publication

220 BROWNB
ACK v. KING
Sotomayor, J., concurring
venting plaintiffs from bringing duplicative litigation against
frst
the United States and then its employees. Simmons v.
Himmelreich, 578 U. S. 621, 630, n. 5 (2016); see also ibid.
(“At the time that the FTCA was passed, common-law claim
preclusion would have barred a plaintiff from suing the
United States after having sued an employee but not vice
versa”). On petitioners' view, however, the judgment bar
provides that any order resolving an FTCA claim automati-
cally precludes separate claims brought in the same action
and arising from the same common nucleus of facts. This
is a signifcant departure from the normal operation of
common-law claim preclusion, which applies only in separate
or subsequent suits following a fnal judgment. See, e. g.,
G. & C. Merriam Co. v. Saalfeld, 241 U. S. 22, 29 (1916) (“Ob-
viously, the rule for decision applies only when the subse-
quent action has been brought”).
King raises a number of reasons to doubt petitioners' read-
ing. Looking frst to the text, the FTCA's judgment bar
is triggered by “[t]he judgment in an action under section
1346(b).” 28 U. S. C. § 2676. A “judgment” is “[a] court's
fnal determination of the rights and obligations of the par-
ties in a case.” Black's Law Dictionary 1007 (11th ed. 2019);
see also 1 H. Black, Law of Judgments § 1, p. 2, n. l (1891)
(“ `A judgment is the fnal consideration and determination
of a court . . . upon the matters submitted to it' ”). Decisions
disposing of only some of the claims in a lawsuit are not
“judgments.”
Similarly, once the judgment bar is triggered, it precludes
“any action by the claimant.” § 2676. An “action” refers to
the whole of the lawsuit. See Black's Law Dictionary, at 37
(defning “action” as a “civil or criminal judicial proceeding ”);
Black's Law Dictionary 43 (3d ed. 1933) (“The terms `action'
and `suit' are now nearly, if not entirely, synonymous”). In-
dividual demands for relief within a lawsuit, by contrast, are
“claims.” See Black's Law Dictionary, at 311 (2019) (defn-
Page Proof Pending Publication

Cite
as: 592 U. S. 209 (2021)
221
Sotomayor, J., concurring
ing a “claim” as “the part of a complaint in a civil action
speci
fying what relief the plaintiff asks for”); Black's Law
Dictionary, at 333 (1933) (defning a “claim” as “any demand
held or asserted as of right” or “cause of action”).
Thus, giving the judgment bar's two key terms their tradi-
tional meanings, “the judgment in an action under section
1346(b)” that triggers the bar is the fnal order resolving
every claim in a lawsuit that includes FTCA claims. When
triggered, the judgment bar precludes later “action[s],”
not claims in the same suit. So read, the statutory judg-
ment bar “functions in much the same way” as claim preclu-
sion, “with both rules depending on a prior judgment as a
condition precedent.” Will v. Hallock, 546 U. S. 345, 354
(2006).
1
Turning next to the FTCA's purpose and effect, under
King 's reading, the judgment bar also serves the same, fa-
miliar functions as claim preclusion: “avoiding duplicative lit-
igation” by barring repetitive suits against employees with-
out “refecting a policy that a defendant should be scot free
of any liability.” Ibid. Petitioners' interpretation, by con-
trast, appears ineffcient. Precluding claims brought in the
same suit incentivizes plaintiffs to bring separate suits, frst
against federal employees directly and second against the
United States under the FTCA. See Sterling v. United
States, 85 F. 3d 1225, 1228–1229 (CA7 1996) (holding that
1
Nearby § 2672 could further support this interpretation. That section
provides that an administrative settlement with the United States “shall
constitute a complete release of any claim against the United States and
against the employee of the government” who committed the tort. Unlike
the judgment bar, § 2672 uses unambiguous language (“release of any
claim”) to ensure that settlements with the United States both preclude
future litigation and resolve pending claims against federal employees.
Had Congress intended to give both provisions the same effect, “it pre-
sumably would have done so expressly.” Russello v. United States, 464
U. S. 16, 23 (1983).
Page Proof Pending Publication

Page Proof Pending Publication
222 BROWNB
ACK v. KING
Sotomayor, J., concurring
judgment in a prior direct action did not preclude a later
FTCA
suit against the United States).
2
Petitioners' interpretation also produces seemingly unfair
results by precluding potentially meritorious claims when a
plaintiff 's FTCA claims fail for unrelated reasons. Here, for
example, King 's constitutional claims require only a showing
that the offcers' behavior was objectively unreasonable,
while the District Court held that the state torts underlying
King 's FTCA claims require subjective bad faith. If peti-
tioners are right, King 's failure to show bad faith, which
is irrelevant to his constitutional claims, means a jury
will never decide whether the offcers violated King 's consti-
tutional rights when they stopped, searched, and hospital-
ized him.
There are, of course, counterarguments. On the text,
petitioners point out that it would be strange to refer to the
entire lawsuit as “an action under section 1346(b)” even after
the Court has decided all the claims brought under the
FTCA. Better, they argue, to read “judgment in an action
under section 1346(b)” to mean any order resolving all the
FTCA claims in the suit. They urge further that claims in
the same suit should be among the covered actions because
the bar precludes “any action,” rather than “subsequent” ac-
tions, which is the typical formulation of claim preclusion.
As to the judgment bar's purpose, petitioners contend that
the FTCA gives tort claimants a choice that comes with a
cost: They can sue the United States and access its deeper
pockets, but, if they do, then the outcome of the FTCA claims
resolves the entire controversy. This preserves federal re-
2
Some courts have held that precluding claims in the same action pre-
vents plaintiffs from recovering for the same injury from both the United
States and the federal employee. The law, however, already bars double
recovery for the same injury. See, e. g., Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U. S. 321, 348 (1971) (“[T]he law . . . does not permit a
plaintiff to recover double payment”).

Cite
as: 592 U. S. 209 (2021)
223
Sotomayor, J., concurring
sources while allowing tort claimants to decide whether to
br
ing FTCA claims at all.
There are naturally counterarguments to those counterar-
guments, and so on, but further elaboration here is unneces-
sary. As the Court points out, “ `we are a court of review,
not of frst view.' ” Ante, at 213, n. 4 (quoting Cutter v. Wil-
kinson, 544 U. S. 709, 718, n. 7 (2005)). While lower courts
have largely taken petitioners' view of the judgment bar, few
have explained how its text or purpose compels that result.
In my view, this question deserves much closer analysis and,
where appropriate, reconsideration.
Page Proof Pending Publication