Brownback v. King

(Slip Opinion)              OCTOBER TERM, 2020                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

.


SUPREME COURT OF THE UNITED STATES

                                       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, provided that the plaintiff alleges six statutory elements of an actionable
  claim. See 

(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 subject 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 officers
  individually under the implied cause of action recognized by Bivens v.
  Six Unknown Fed. Narcotics Agents, 

. The District Court
  dismissed his FTCA claims, holding that the Government was immune
  because the officers were entitled to qualified 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 officers were entitled to
  federal qualified 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. 5–10.
    (a) Similar to common-law claim preclusion, the judgment bar requires a final judgment “ ‘on the merits,’ ” Semtek Int’l Inc. v. Lockheed
 Martin Corp., 

. Here, the District Court’s summary
2                         BROWNBACK v. KING

                                  Syllabus

    judgment ruling dismissing King’s FTCA claims 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., 

, 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. 

 at 506–507. Pp. 5–7.
       (b) In passing on King’s FTCA claims, the District Court also determined that it lacked subject-matter jurisdiction over those claims. In
    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, 

. 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, 

, because King’s FTCA claims failed to survive a Rule 12(b)(6)
    motion to dismiss, the court also was deprived of subject-matter jurisdiction. Generally, 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 judgment on the merits that can trigger the
    judgment bar. Pp. 7–9.
917 F. 3d. 409, reversed.

   THOMAS, J., delivered the opinion for a unanimous Court. SOTOMAYOR,
J., filed a concurring opinion.
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                              Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that
     corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                    _________________

                                     No. 19–546
                                    _________________


  DOUGLAS BROWNBACK, ET AL., PETITIONERS v.
              JAMES KING
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE SIXTH CIRCUIT
                               [February 25, 2021]

  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 Government. 

; see also §1346(b). It also includes a provision, known as the judgment bar, which precludes “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 District Court’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 employment. Before 1946, a plaintiff could sue a federal employee
2                       BROWNBACK v. KING

                         Opinion of the Court

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
liability. Pfander & 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, 

, 619–620 (1912). Despite that immunity,
the Government often would provide counsel to defendant
employees 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.
   “In 1946, Congress passed the FTCA, which waived the
sovereign immunity of the United States for certain torts
committed by federal employees” acting within the scope of
their employment. FDIC v. Meyer, 

, 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,

. A claim is actionable if it alleges the six
elements 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 office or employment,
——————
 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.
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                      Opinion of the Court

       [6] under circumstances where the United
       States, if a private person, would be liable to
       the claimant in accordance with the law of
       the place where the act or omission occurred.” 

 (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 difficult to sue the employees themselves 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 judgment
(favorable or not) in an FTCA suit,” the bar is triggered, and
“he generally cannot proceed with a suit against an individual employee based on the same underlying facts.” Simmons v. Himmelreich, 

 (2016). The Act
thus opened a new path to relief (suits against the United
States) while narrowing the earlier one (suits against employees).
                             B
  This case involves a violent encounter between respondent James King and officers Todd Allen and Douglas
Brownback, members of a federal task force, who mistook
King for a fugitive. King sued the United States under the
FTCA, alleging that the officers committed six torts under
Michigan law. He also sued the officers individually under
the implied cause of action recognized by Bivens v. Six Unknown Fed. Narcotics Agents, 

 (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.
4                       BROWNBACK v. KING

                          Opinion of the Court

   The District Court dismissed King’s claims. As to his
FTCA claims, the court granted the Government’s summary judgment motion.2 It found that the undisputed facts
showed that the officers did not act with malice. The officers thus would have been entitled to state qualified immunity had Michigan tort claims been brought against them.
See Odom v. Wayne County, 

, 473–474, 

, 224–225 (2008). The court, following its own
precedent, ruled that the Government was immune because
it retains the benefit of state-law immunities available to
its employees. The court also ruled in the alternative that
King’s FTCA claims failed under Rule 12(b)(6) 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 qualified immunity. King appealed only the dismissal of his Bivens claims.
   As a threshold question, 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, 

, 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.” 

; but see Unus v. Kane, 

, 121–
122 (CA4 2009) (holding that summary judgment on the
plaintiffs’ FTCA claims triggered judgment bar with respect to Bivens claims). The Sixth Circuit then held that
the defendant officers were not entitled to qualified immunity and reversed the District Court.
——————
  2 Like the Sixth Circuit, we construe the District Court’s primary rul-

ing 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, 

 (CA6 2019) (quoting ECF Doc. 91, p. 1).
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                             Opinion of the Court

  We granted certiorari, 

 (2020), and now
reverse.
                               II
                               A
   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 subject matter against the
employee of the Federal Government whose act gave rise to
the claim. §2676. Here, the District Court entered a “Judgment . . . in favor of Defendants and against Plaintiff.” ECF
Doc. 92. The parties agree that, at a minimum, this judgment must have been a final judgment on the merits to trigger the bar, given that the “provision functions in much the
same way as [the common-law doctrine of claim preclusion].” Simmons, 

 (internal quotation
marks omitted).3 We agree.4


——————
   3 The terms res judicata and claim preclusion often are used inter-

changeably. See Lucky Brand Dungarees, Inc. v. Marcel Fashions Group,
Inc., 

, ___ (2020) (slip op., at 6). But res judicata “comprises
two distinct doctrines.” 

 The first is issue preclusion, also known as
collateral estoppel. 

 It precludes a party from relitigating an issue
actually decided in a prior case and necessary to the judgment. 

 The
second doctrine is claim preclusion, sometimes itself called res judicata.

 Claim preclusion prevents parties from relitigating the same
“claim” or “ ‘cause of action,’ ” even if certain issues were not litigated in
the prior action. 

 Suits involve the same “claim” or “ ‘ cause of action ’ ” if the later suit “ ‘ “aris[es] from the same transaction” ’ ” or involves
a “ ‘common nucleus of operative facts.’ ” 

   4 King argues, among other things, that the judgment bar does not ap-

ply 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
arguments, and “we are a court of review, not of first view.” Cutter v.
Wilkinson, 

 (2005). We leave it to the Sixth Circuit to address King’s alternative arguments on remand.
6                       BROWNBACK v. KING

                          Opinion of the Court

                                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 preclusion” a judgment must be “ ‘on the merits.’ ” Semtek Int’l
Inc. v. Lockheed Martin Corp., 

 (2001).
Under that doctrine as it existed in 1946, a judgment is “on
the merits” if the underlying decision “actually passes directly on the substance of a particular claim before the
court.” 

 at 501–502 (cleaned up).6 Thus, to determine if
the District Court’s decision is claim preclusive, we must
determine 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., 

, 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 qualified immunity for Government
employees who commit intentional torts but act in subjective good faith. See Odom, 

, 481–482, 

. And it concluded that, because the
undisputed facts here showed that the officers would have
——————
  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
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, 

.
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.
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                          Opinion of the Court

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 veracity,
the officers 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 merits. Cf. Arbaugh, 546 U. S., at 506–507. The District Court
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 overlapping questions about sovereign immunity and subject-matter jurisdiction. In such cases, the “merits and jurisdiction will sometimes come intertwined,” and a court can decide “all . . . of the merits issues” in resolving a jurisdictional question, or vice versa. Bolivarian Republic of
Venezuela v. Helmerich & Payne Int’l Drilling Co., 

, ___ (2017) (slip op., at 7). 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 determined that it lacked jurisdiction. But an on-themerits judgment can still trigger the judgment bar, even if
that determination necessarily deprives the court of subject-matter jurisdiction.
——————
  7 We express no view on the availability of state-law immunities in this

context. Compare Medina v. United States, 

 (CA4
2001), with Villafranca v. United States, 

, and n. 6
(CA5 2009).
8                    BROWNBACK v. KING

                       Opinion of the Court

   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 federal court of subject-matter jurisdiction. See Steel Co. v.
Citizens for Better Environment, 

 (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.’ ” 

 However, a plaintiff must plausibly allege all jurisdictional elements. See, e.g., Dart Cherokee Basin Operating Co. v. Owens, 

, 89 (2014). And in the unique context of
the FTCA, all elements of a meritorious claim are also jurisdictional. Meyer, 

. 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 granted but also for a court to have subject-matter
jurisdiction over the claim. That means a plaintiff must
plausibly 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). Because
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
definition, for a court to act ultra vires.” 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 judgment on the merits that triggers the judgment
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                           Opinion of the Court

bar.8 A dismissal for lack of jurisdiction is still a “judgment.” See Restatement of Judgments §49, Comment a, at
193–194 (discussing “judgment . . . based on the lack of jurisdiction”). And even though the District Court’s ruling in
effect deprived the court of jurisdiction, the District Court
necessarily 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 jurisdiction,” United States v. Ruiz, 

 (2002),
a federal 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 judgment 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.
——————
   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 element, 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 non-merits
reasons, in which case it must dismiss the case under just Rule 12(b)(1).
   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, 

. 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,

, 94–95 (1998).
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                   SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES
                          _________________

                           No. 19–546
                          _________________


  DOUGLAS BROWNBACK, ET AL., PETITIONERS v.
              JAMES KING
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE SIXTH CIRCUIT
                      [February 25, 2021]

  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 5, 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,” preventing plaintiffs from bringing duplicative litigation
against first the United States and then its employees.
Simmons v. Himmelreich, 

 (2016);
see also 

 (“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 automatically precludes separate claims
2                    BROWNBACK v. KING

                    SOTOMAYOR, J., concurring

brought in the same action and arising from the same common nucleus of facts. This is a significant departure from
the normal operation of common-law claim preclusion,
which applies only in separate or subsequent suits following a final judgment. See, e.g., G. & C. Merriam Co. v. Saalfield¸ 

 (1916) (“Obviously, the rule for decision applies only when the subsequent action has been
brought”).
    King raises a number of reasons to doubt petitioners’
reading. Looking first to the text, the FTCA’s judgment bar
is triggered by “[t]he judgment in an action under section
1346(b).” 

. A “judgment” is “[a] court’s
final determination of the rights and obligations of the parties 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 final 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
(defining “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”). Individual demands for relief within a lawsuit, by
contrast, are “claims.” See Black’s Law Dictionary, at 311
(2019) (defining a “claim” as “the part of a complaint in a
civil action specifying what relief the plaintiff asks for”);
Black’s Law Dictionary, at 333 (1933) (defining 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 traditional meanings, “the judgment in an action under section
1346(b)” that triggers the bar is the final order resolving
every claim in a lawsuit that includes FTCA claims. When
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                       SOTOMAYOR, J., concurring

triggered, the judgment bar precludes later “action[s],” not
claims in the same suit. So read, the statutory judgment
bar “functions in much the same way” as claim preclusion,
“with both rules depending on a prior judgment as a condition precedent.” Will v. Hallock, 

 (2006).1
   Turning next to the FTCA’s purpose and effect, under
King’s reading, the judgment bar also serves the same, familiar functions as claim preclusion: “avoiding duplicative
litigation” by barring repetitive suits against employees
without “reflecting a policy that a defendant should be scot
free of any liability.” 

 Petitioners’ interpretation, by
contrast, appears inefficient. Precluding claims brought in
the same suit incentivizes plaintiffs to bring separate suits,
first against federal employees directly and second against
the United States under the FTCA. See Sterling v. United
States, 

, 1228–1229 (CA7 1996) (holding that
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
——————
  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 presumably would have done so expressly.” Russello v. United States, 

 (1983).
  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., 

 (1971) (“[T]he law . . . does not permit
a plaintiff to recover double payment”).
4                   BROWNBACK v. KING

                   SOTOMAYOR, J., concurring

a showing that the officers’ behavior was objectively unreasonable, while the District Court held that the state torts
underlying King’s FTCA claims require subjective bad
faith. If petitioners are right, King’s failure to show bad
faith, which is irrelevant to his constitutional claims,
means a jury will never decide whether the officers violated
King’s constitutional rights when they stopped, searched,
and hospitalized 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” actions, 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 resources while allowing tort claimants to decide
whether to bring FTCA claims at all.
   There are naturally counterarguments to those counterarguments, and so on, but further elaboration here is unnecessary. As the Court points out, “ ‘we are a court of review, not of first view.’ ” Ante, at 5, n. 4 (quoting Cutter v.
Wilkinson, 

 (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.