Brownback v. King

Summary

The District Court’s order dismissing King’s Federal Tort Claims Act claims was a judgment on the merits that can trigger the Act’s judgment bar to block his Bivens claims. See 28 U. S. C. §2676; Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388.

Text

PRELIMINARY PRINT 
Volume 592 U. S. Part 2 
Pages 209–223 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
February 25, 2021 
REBECCA A. WOMELDORF 
reporter of decisions 
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NOTICE: 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, 
[email protected], of any typographical or other formal errors.

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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 BROWNBACK 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. 
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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 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 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. 
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212 BROWNBACK v. KING 
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“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, 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 
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Opinion of the Court 
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 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). 
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214 BROWNBACK 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 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, 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].”

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Opinion of the Court 
Simmons, 578 U. S., at 630, n. 5 (internal quotation marks 
omitted).3 We 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 Dungarees, Inc. v. Marcel Fashions 
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 BROWNBACK v. KING 
Opinion of the Court 
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., 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). 
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Opinion of the Court 
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 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 
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218 BROWNBACK v. KING 
Opinion of the Court 
granted but also for a court to have subject-matter juris-
diction 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). 
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Sotomayor, J., concurring 
tion,” United States v. Ruiz, 536 U. S. 622, 628 (2002), a fed-
eral 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). 
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220 BROWNBACK 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-
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Sotomayor, J., concurring 
ing 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) (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). 
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222 BROWNBACK 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 
bring 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

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 592 U. S. Part 2 Pages 209–223 OFFICIAL REPORTS OF THE SUPREME COURT February 25, 2021 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to …

• #2

  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 alternati…

• #3

  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 Acti…

• #4

  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 BROWNBACK v. KING Opinion of the Court “In 1946, Congress passed the FTCA, which w…

• #5

  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 of…

• #6

  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 trigge…

• #7

  “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 thi…

• #8

  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).…

• #9

  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…

• #10

  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 …

• #11

  Page Proof Pending Publication 220 BROWNBACK 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 …

• #12

  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 s…

• #13

  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 ar…