Williams v. Fleming

• Decision Date: 26 February 2010
• Docket Number: No. 09-2410.,09-2410.
• Citation: 597 F.3d 820
• Parties: Jessie WILLIAMS, Plaintiff-Appellant, v. Jerry FLEMING, individually and in his official capacity, DefendantAppellee.
• Court: U.S. Court of Appeals — Seventh Circuit

597 F.3d 820

Jessie WILLIAMS, Plaintiff-Appellant, v. Jerry FLEMING, individually and in his official capacity, DefendantAppellee.

No. 09-2410.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 30, 2009.

Decided Feb. 26, 2010.

Ariel Weissberg, Weisberg & Associates Rakesh Khanna, Leo & Weber, Chicago IL, for Plaintiff-Appellant.

Jonathan C. Haile, Office of the United States Attorney, Chicago, IL, for Defendant-Appellee.

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

Jessie Williams was a customer of Family Bank & Trust Company in Blinois. Following a Federal Deposit Insurance Corporation (FDIC) routine examination in late 2005, Family Bank stopped making loans to Williams, supposedly at the behest of FDIC Associate Examiner Jerry Fleming. The alleged catalyst for Fleming's decision was a racially motivated bias against Williams and other African-Americans. In response, Williams sued Family Bank, the United States, and Fleming, alleging various causes of action arising under the Constitution, state law, and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80 (1946). The district court dismissed the claim against Family Bank because Family Bank was not a state actor, as is required for a properly pled Fifth Amendment violation. It also dismissed the claim against the United States because the FTCA expressly exempts the United States from suit in slander actions. As a consequence of the FTCA dismissal, the district court found that the FTCA's judgment bar applied to prohibit Williams's remaining Bivens suit against Fleming, resulting in a dismissal of his third and final claim from federal court. It is the dismissal of Fleming on the basis of the judgment bar that Williams challenges on appeal. We affirm.

I. Background

Jessie Williams was a customer of Family Bank with close to three million dollars in outstanding personal and business loans. In late 2005, the FDIC, led by Associate Examiner Jerry Fleming, conducted a routine safety and soundness examination at Family Bank. At the time of the examination, Williams was in good standing and had never been late with a payment.

Williams alleges that during the examination, Fleming made racially discrimina-597 F.3d 820

tory statements to Family Bank's President, James Zaring, about the city of Harvey, Illinois, and about the bank's practice of initiating loans in the predominantly African-American suburb. Fleming and other FDIC employees also supposedly made racially disparaging remarks about Williams specifically. Williams alleges that during this examination, Fleming ordered Zaring and Family Bank to refuse all further loans to Williams and other members of his community because of their race.

Williams alleges that as a result of these statements and the directive issued by Fleming, any subsequent loan applications that Williams submitted were not considered in the ordinary course of business and were instead denied immediately. Williams claims to have been denied credit by several other banking institutions as a direct result of Fleming's actions.

Williams filed a second amended complaint in April 2008 asserting a claim against Family Bank arising under the Fifth Amendment; a claim against Family Bank and, through the FTCA, against the United States, the basis of which was the Illinois Human Rights Act, which makes it a civil rights violation for a "financial institution" to unlawfully discriminate in the provision of credit; and a Bivens claim against Fleming based on the Fifth Amendment.

The district court dismissed Family Bank from the suit because it could not violate the Constitution as a non-state actor. The district court also granted the United States' motion to dismiss the FTCA claim against it in July 2008, finding that the FTCA's reservation of sovereign immunity in 28 U.S.C. § 2680(h) was applicable because it prohibits suit against the United States for "[a]ny claim arising out of... abuse of process, libel, slander, misrepresentation, deceit, or interference withcontractual rights." In determining the applicability of § 2680(h), the district court characterized Williams's claim as one for slander, because no independent tort of racial discrimination exists under Illinois law, and the essence of the claim alleged fit best under the rubric of slander. The district court found that, in any case, the FDIC did not act as a financial institution with regard to Williams, ¹ so Williams failed to state a claim under state law, which is a prerequisite to an FTCA claim. See, e.g. Doe v. United States, 976 F.2d 1071, 108283 (7th Cir.1992) (dismissing an FTCA claim because Illinois no longer recognized the underlying state tort of seduction).

In November 2008, Fleming filed a motion to dismiss based on the FTCA's judgment bar, 28 U.S.C. § 2676, arguing that the court's FTCA judgment for the United States barred Williams's individual capacity claim against Fleming. In April 2009 the district court granted the motion to dismiss, finding that the FTCA's judgment bar was applicable. It reached this conclusion by referencing our decision in Hoosier Bancorp of Indiana v. Rasmussen, 90 F.3d 180 (7th Cir. 1996), where we affirmed a district court decision that concluded that a dismissal based on the discretionary function exception contained in § 2680(a) was a "judgment" for purposes of § 2676.²Because a "judgement" is all that § 2676 requires as a prerequisite to its operation the district court in the instant case similarly found that a dismissal on the basis of § 2680(h) was a judgment, thereby barring Williams's Bivens claim. This appeal followed.

II. Analysis

Generally, an individual may not sue the United States for tortious conduct committed by the government or its agents. United States v. Navajo Nation — U.S.-, 129 S.Ct. 1547, 1551, 173 L.Ed.2d 429 (2009) ("The Federal Government cannot be sued without its consent."). In 1946, Congress created the FTCA, one purpose of which was to compensate individuals by allowing suit against the United States for torts committed during the commission of a federal employee's official duties. See 28 U.S.C.A. § 2671, Stat. Notes, Sec. 2 of Pub.L. 100-694(b). But, understanding the importance of sovereign immunity, Congress chose to limit the types of tortious conduct for which the government could be sued. See Brandes v. United States, 783 F.2d 895, 896 (9th Cir. 1986). Not only does the FTCA reserve the government's immunity for specifically enumerated torts, 28 U.S.C. § 2680, but also it provides various procedural mechanisms that help preserve sovereign immunity, see, e.g., 28 U.S.C. §§ 2675-77. One such mechanism is the judgment bar, found at 28 U.S.C. § 2676.

The judgment bar recognizes that the purpose of sovereign immunity is to protect the United States not simply from the financial consequences of suit, butalso from the burden of defending against suit. See, e.g., Hoosier Bancorp, 90 F.3d at 184. Accordingly, the judgment bar 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. The judgment bar therefore preserves sovereign immunity by protecting the United States from defending against separate lawsuits arising from the same conduct. Gasho v. United States, 39 F.3d 1420, 1437 (9th Cir.1994).

Although we held in Hoosier Bancorp that " 'any FTCA judgment, regardless of its outcome, bars a subsequent Bivens action on the same conduct that was at issue in the prior judgment, '" 90 F.3d at 185 (quoting Gasho, 39 F.3d at 1437), that case focused on whether a judgment must have been favorable for application of the judgment bar. Id. We have not yet addressed the precise question of whether a judgment under the FTCA must be "on the merits" for the judgment bar to apply. Nor do we reach that question today.

Instead, we base our decision on our holding in Collins v. United States, 564 F.3d 833, 838 (7th Cir.2009), where we explained that the exceptions contained in § 2680 are mandatory rules of decision rather than restrictions on a court's subject matter jurisdiction. See also Reynolds v. United States, 549 F.3d 1108, 111112 (7th Cir.2008) (" 'The statutory exceptions enumerated in § 2680(a)-(n) to the United States's waiver of sovereign immunity... limit the breadth of the Government's waiver of sovereign immunity, but they do not accomplish this task by withdrawing subject-matter jurisdiction from the federal courts.'") (quoting Parrott v.United States, 536 F.3d 629, 634 (7th Cir. 2008)).

Because we are reviewing the district court's interpretation of the judgment bar de novo, Manning v. United States, 546 F.3d 430, 432 (7th Cir.2008), we may affirm on any ground supported in the record, Hager v. City of West Peoria, 84 F.3d 865, 872 (7th Cir.1996); see also Roland v Langlois, 945 F.2d 956, 962 n. 11 (7th Cir.1991). Although we ultimately agree with the district court's resolution of the case, we reach that outcome through different reasoning. The district court held that the dismissal of the suit against the United States under § 2680(h) was for lack of subject matter jurisdiction. We...