Manning v. U.S.

• Decision Date: 06 October 2008
• Docket Number: No. 07-1427.,No. 07-1120.,07-1120.,07-1427.
• Citation: 546 F.3d 430
• Parties: Steven MANNING, Plaintiff-Appellant, Cross-Appellee, v. UNITED STATES of America, Defendant-Appellee, and Robert Buchan and Gary Miller, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

546 F.3d 430

Steven MANNING, Plaintiff-Appellant, Cross-Appellee, v.UNITED STATES of America, Defendant-Appellee, and Robert Buchan and Gary Miller, Defendants-Appellees, Cross-Appellants.

No. 07-1120.

No. 07-1427.

United States Court of Appeals, Seventh Circuit.

Argued May 14, 2008.

Decided October 6, 2008.

Philip S. Beck(argued), Bartlit, Beck, Herman, Palenchar & Scott, Jonathan I. Loevy, Jon Rosenblatt, Loevy & Loevy, Chicago, IL, Theodore B. Olson, Gibson, Dunn & Crutcher, Washington, DC, for Plaintiff-Appellant, Cross-Appellee.

Thomas P. Walsh(argued), Jonathan C. Haile(argued), Office of the United States Attorney, Chicago, IL, for Defendants-Appellees, Cross-Appellants.

Before BAUER, FLAUM and MANION, Circuit Judges.

BAUER, Circuit Judge.

If a federal law enforcement officer commits a tort, the victim has two distinct avenues of relief: he may pursue a constitutional tort claim against the individual officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619(1971), or he may pursue a common law tort claim against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346,2671-80.The latter avenue is subject to an important caveat.Under 28 U.S.C. § 2676, a judgment in an FTCA action acts as 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.

Steven Manning pursued both avenues of relief in this case.His Bivens claims against two FBI agents succeeded, but his FTCA claim against the United States failed.The district court, finding that the FTCA judgment bar applied, vacated Manning's favorable judgment on his Bivens claims.Manning appealed.Because we agree that the FTCA judgment barred Manning's Bivens claims against the agents, we affirm.

I.BACKGROUND

Steven Manning, a former Chicago police officer and FBI informant, was convicted of kidnapping in Missouri and murder in Illinois.He received a life sentence for the kidnapping charge and a death sentence for the murder charge.Both convictions were overturned.The Illinois Supreme Court reversed his murder conviction, People v. Manning,182 Ill.2d 193, 695 N.E.2d 423, 230 Ill.Dec. 933(1998), and the Eighth Circuit granted habeas relief on the kidnapping conviction, Manning v. Bowersox,310 F.3d 571(8th Cir.2002).Manning has not been retried in either case.

Manning filed suit against FBI agents Robert Buchan and Gary Miller, alleging that their conduct in the investigation and prosecution of the Missouri and Illinois cases violated his rights.He sought relief under Bivens and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c).In the same action, he filed suit against the United States under the FTCA for common law torts of malicious prosecution and intentional infliction of emotional distress.Prior to discovery, Buchan and Miller moved for summary judgment based on absolute and/or qualified immunity.The district court denied these motions, and we affirmed.Manning v. Miller,355 F.3d 1028(7th Cir.2004).The case returned to the district court for discovery and trial.

The two claims were tried together in a combined, though bifurcated, trial.Claims under the FTCA may not be tried to a jury, 28 U.S.C. § 2402, so district court judges often bifurcate trials where FTCA claims are joined with other claims.The district court in this case followed that procedure: the claims against Buchan and Miller were tried before a jury, and the claims against the government were tried simultaneously before the court.

On January 24, 2005, a jury found for Manning on his Bivens claims, awarding over $6.5 million in damages against the two agents.The jury made specific findings that one or both of the agents fabricated or caused to be fabricated certain material evidence, and then concealed this and other material matters from Manning and the prosecutors who handled the cases.The jury found for the agents on the RICO claims.

On March 23, 2005, Manning moved to have judgment entered on the jury's verdict in the Bivens claims.Manning noted in the motion that, even though the FTCA claim was still pending before the court, a simultaneous entry of judgments on the FTCA claim and the Bivens claims might trigger the FTCA judgment bar.Defendants did not object to the motion.On March 25, 2005, the district court ordered the clerk to enter judgment in favor of Manning on the Bivens claims.¹

On September 26, 2006, the district court found in favor of the United States on Manning's FTCA claims.The court concluded that excluding the evidence fabricated by the FBI agents, probable cause still existed to prosecute Manning for both the kidnapping and the murder, thereby defeating the malicious prosecution claim.The court also found that Manning failed to meet his burden of persuasion on the intentional infliction of emotional distress claim.Following this ruling, the agents moved to vacate the judgment against them under Federal Rule of Civil Procedure 59(e), claiming that the FTCA judgment bar compelled vacatur of the prior judgment in the Bivens claims.The district court granted the motion and vacated the judgment against Buchan and Miller.This timely appeal followed.

II.ANALYSIS

Manning argues on appeal that the district court improperly interpreted § 2676 to nullify the jury's verdict on the Bivens claim.The FBI agents filed a conditional cross-appeal of the adverse jury verdict, arguing that, in the event that we reversed the district court's ruling on the judgment bar, the agents were entitled to judgment as a matter of law, as well as absolute or qualified immunity.We review questions of law, such as issues of statutory interpretation, de novo.Samuel C. Johnson 1988 Trust v. Bayfield County, Wis.,520 F.3d 822, 828(7th Cir.2008).

Our inquiry focuses on the FTCA judgment bar, which provides:

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.

28 U.S.C. § 2676.Manning concedes that the district court entered a "judgment" on the merits of his FTCA claim.He also does not dispute that the FTCAandBivens claims were "of the same subject matter," which courts have read to mean "arising out of the same actions, transactions, or occurrences."SeeEstate of Trentadue ex rel. Aguilar v. United States,397 F.3d 840, 858(10th Cir.2005)(citingSerra v. Pichardo,786 F.2d 237, 239-40(6th Cir.1986)).Rather, he argues that the judgment bar should not apply to claims raised in the same action, and, alternatively, that the judgment bar should not apply retroactively to nullify a previous Bivens judgment.

We have had limited occasion to address the interplay between the FTCA judgment bar and claims under Bivens.In Hoosier Bancorp of Indiana, Inc. v. Rasmussen,90 F.3d 180(7th Cir.1996), a case relied upon by both parties, we determined that § 2676 applied to both favorable and unfavorable judgments on FTCA claims.Following the Ninth Circuit's rationale in Gasho v. United States,39 F.3d 1420, 1437(9th Cir.1994), we observed that "[p]laintiffs contemplating both a Bivens claim and an FTCA claim will be encouraged to pursue their claims concurrently in the same action, instead of in separate actions."Hoosier Bancorp,90 F.3d at 185(internal quotations omitted).We did not, in that case, expressly address either argument raised by Manning here.

A.Application of § 2676 to Claims in Same Suit

Manning argues the FTCA judgment bar should not apply to claims brought in the same suit, contending that neither the language of the statute nor the congressional intent allows the construction relied upon by the district court, and that the construction would contradict Supreme Court and our precedent.

Manning first points to the text of § 2676, which bars other "actions," but not claims within the same action.By stating that "[t]he judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant," Manning posits that § 2676 bars all other "actions" — i.e., other lawsuits—but not claims within the same suit.

We decline to accept the interpretation of § 2676 offered by Manning.Courts must apply a statute as written when the language is plain and unambiguous.SeeDodd v. United States,545 U.S. 353, 359, 125 S.Ct. 2478, 162 L.Ed.2d 343(2005)("[W]hen the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms."(quotingHartford Underwriters Ins. Co. v. Union Planters Bank, N. A.,530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1(2000))(internal quotation marks omitted)).Section 2676 provides that an FTCA judgment acts as a bar to "any action."Under the plain meaning of that term, this must be read to include claims brought within the same action, as a claim is necessarily part of an action.Thus when the district court in this case entered a judgment in the FTCA claim, that judgment became a "judgment in an action under" the FTCA which "constitute[d] a complete bar to any action by the claimant," and Manning's Bivens claims fell under the ambit of "any action."

The common usage of the term "action" supports this reading, as "action" incorporates all elements of a civil suit, including the claims within that suit.See Black's Law Dictionary 31 (8th ed.2004)(defining "action" as "[a] civil or criminal judicial proceeding" and equating it with "action at law," defined as a "[a] civil suit stating a legal cause of action and seeking only a legal remedy");Gillespie v. Equifax Information Services, L.L.C.,484 F.3d 938, 941(7th Cir.2007)("We frequently look to...