Brodnik v. Lanham, Civil Action No. 1:11-0178

Decision Date01 August 2016
Docket NumberCivil Action No. 1:11-0178
PartiesRANDY MICHAEL BRODNIK, D.O., Plaintiff, v. ROBERT LANHAM, et al., Defendants.
CourtU.S. District Court — Southern District of West Virginia
I. Background

According to the Second Amended Complaint, at the time of the events giving rise to the instant Complaint, defendant Robert Lanham was employed as a special agent with the Internal Revenue Service. Complaint ¶¶ 8 and 10. As a result of a six-year investigation of plaintiff Randy Michael Brodnik, D.O. ("Brodnik") for income tax evasion, Lanham recommended that Brodnik be prosecuted. See id. at ¶ 10. On March 18, 2009, a federal grand jury returned a seven-count indictment against Brodnik charging him with conspiracy and six counts of income tax evasion. See id. at ¶ 11. On June 2, 2010, the grand jury returned a seven-count second superseding indictment charging Brodnik with one count of conspiracy, five counts of income tax evasion, and one count of corruptly endeavoring to impede and obstruct the due administration of the Internal Revenue laws. See id. at ¶ 13. After a three-week jury trial, Brodnik was acquitted of all charges. See id. at ¶¶ 14, 20.

According to the Complaint, at Brodnik's trial, Lanham testified that it was "debatable" that Brodnik had broken the law. See id. at ¶ 16. Brodnik further alleges that one of the government's witnesses, defendant Deborah Beck, testified at trial that she illegally accessed Brodnik's electronic mail and provided it to defendant Lanham. See id. at 17-18. Count I of the Complaint is brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and alleges the violation of Brodnik's constitutional rights. Count II of the Complaint alleges that defendant Brodnik made numerous wrongful disclosures of plaintiff's tax return information during the investigation, in violation of Internal Revenue Code § 7431. Counts III through VII are state law claims for civil conspiracy, invasion of privacy, outrage, intentional infliction of emotional distress, and malicious prosecution against defendants Lanham and Beck.

As to the state law claims against Brodnik, the court granted the motion of the United States to dismiss defendant Lanham and substitute the United States as a defendant. (ECF No. 56). Thereafter, by Order entered on August 6, 2015, the court dismissed without prejudice plaintiff's FTCA claims against the United States for failure to exhaust administrative remedies. (ECF No. 77).

Both Lanham and Beck have filed motions to dismiss.

II. Analysis
A. Lanham's Motions to Dismiss
1. FTCA Judgment Bar

Defendant Robert Lanham has moved to dismiss the Bivens claim brought against him on the ground that it is barred by the Federal Tort Claims Act ("the Act" or "FTCA") judgment bar, 28 U.S.C. § 2676. (ECF No. 78). By Order entered on August 6, 2015, the court dismissed with prejudice plaintiff's FTCA claims against the United States for failure to exhaust administrative remedies. (ECF No. 77). Plaintiff contends that the judgment bar rule does not operate as a bar to bringing his Bivens claim because the order dismissing his FTCA claims was not, according to him, a final judgment. Lanham, relying on a number of cases, including several from the Southern District of West Virginia, argues that 28 U.S.C. § 2676 is not limited to final judgments. According to Lanham, "judgment" means any judgment, final or not.

Shortly after Lanham filed his motion to dismiss, on November 6, 2015, the United States Supreme Court granted certiorari in Simmons v. Himmelreich, to answer the question whether a final judgment dismissing an FTCA case on the ground that relief is precluded by one of the FTCA's exceptions to liability, 28 U.S.C. § 2680, bars a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim. Simmons v. Himmelreich, 766 F.3d 576, cert.granted, 136 S. Ct. 445 (2015). Given Lanham's position that any judgment is barred by the FTCA judgment bar, Himmelreich had the potential to affect the court's decision with respect to the instant motion. On June 6, 2016, the Supreme Court issued its opinion in Himmelreich, concluding that the FTCA's judgment bar rule does not bar a Bivens suit against Bureau of Prisons employees where Himmelreich's earlier FTCA suit had been dismissed based upon the discretionary function exception. Simmons v. Himmelreich, 136 S. Ct. 1843, 1847-48 (2016).

One court explained the significance of the FTCA judgment bar and the choices a plaintiff who seeks relief under the FTCA and Bivens must make.

A prospective plaintiff seeking redress against a federal official for injury has two distinct avenues of relief. He may file a common law tort claim against the United States under the FTCA and- or in the alternative - he may file a constitutional tort claim against the individual officer under Bivens.
In deciding whether to pursue a claim under the FTCA or under Bivens, or both, a plaintiff must consider the distinct advantages and drawbacks fo the two causes of action. First, the defendant in an FTCA action is the United States, whereas in a Bivens suit the defendant is the individual official. 28 U.S.C. §§ 1346(b) & 2674. The obvious advantage to pursuing an FTCA claim is that payment of a successful claim is assured through the deep pockets of the United States treasury; whereas a successful judgment against an individual defendant may not be satisfied if the defendant lacks sufficient assets. S. Rep. No. 588, at 2-3 (1973), reprinted in 1974 U.S.C.C.A.N. 2789. Second, while a jury trial is available in a Bivens suit, only a bench trial is permittedunder the FTCA. 28 U.S.C. § 2402. Third, punitive damages are available in a Bivens action but are not available under the FTCA. Id. § 2674. Finally, a judgment under the FTCA constitutes "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." 28 U.S.C. § 2676. Thus, if a plaintiff elects to pursue a remedy under the FTCA to judgment, he risks dismissal of any Bivensclaim if the Bivens claim arises from "the same subject matter" and is against the same "employee whose act or omission gave rise to the claim." Id. This is true whether the FTCA claim is brought before or after the Bivens claim, or if, as here, both claims are brought in the same suit. This is also true irrespective of whether the FTCA judgment is favorable to the plaintiff or the United States.

Sanchez v McLain, 867 F. Supp.2d 813, 816-17 (S.D.W. Va. 2011) (Johnston, J.); see also Unus v. Kane, 565 F.3d 103, 122 (4th Cir. 2009) ("Litigants frequently face tough choices - choices that rarely come without consequence. In these proceedings, the plaintiffs chose to pursue their claims against the federal agent defendants through Bivens as well as under the FTCA. As such, they risked having a judgment on the FTCA claims operate to bar their Bivens theories.").

The Federal Tort Claims Act "allows plaintiffs to seek damages from the United States for certain torts committed by federal employees." Himmelreich at 1845. The Act provides in pertinent part:

[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property,or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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.

28 U.S.C. § 1346(b)(1).

"In most cases, an FTCA action is the exclusive civil remedy available against government employees acting within the scope of their employment." Donahue v. Connolly, 890 F. Supp.2d 173, (D. Mass. 2012) (citing 28 U.S.C. § 2679(b)(1)). There is, however, an exception to the Act for claims alleging Constitutional violations. See id. Therefore, a plaintiff is permitted "to bring both an FTCA claim and Bivens claim against the individual defendants, and courts often bifurcate the proceedings to address the FTCA claim first." Id.

At issue in this case is § 2676 of the FTCA, the Judgment Bar which states:

The judgment in an [FTCA] action . . . 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 Act does not define "judgment". See Donahue, 890 F. Supp.2d at 179 ("Unfortunately, the Act does not define the key term `judgment,' in Section 2676."). Donahue suggested the following definition for "judgment" from the Fourth Edition of Black's Law Dictionary might be an appropriate one: "The official andauthentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination." Id. at 179-80 (quoting Black's Law Dictionary 977 (4th ed. 1951)). Donahue goes on to discuss the legislative history of the FTCA and concluded that "the judgment bar's legislative history undercuts [defendant]'s argument that the judgment bar ought to be applied to all judgments, no matter their import or quality." Id. at 182-83.

While the FTCA does not define the term "judgment," the Federal Rules of Civil Procedure do. Federal Rule of Civil Procedure 54(a) provides: "`Judgment' as used in these rules includes a decree and any order from which an appeal lies." As a general matter, "[a]n order dismissing a complaint without prejudice is not an appealable final order under § 1291 if `the plaintiff could save his action by merely amending his complaint.'" Goode v. Central Virginia Legal Aid Society, Inc., 807 F.3d 619, 623 (4th Cir. 2015) (quoting Domino...

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