Manning, Steven v. United States

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 07-1120 and 07-1427

S TEVEN M ANNING,
Plaintiff-Appellant,
Cross-Appellee,
v.

U NITED S TATES OF A MERICA,
Defendant-Appellee,
and

R OBERT B UCHAN and G ARY M ILLER,

Defendants-Appellees,
Cross-Appellants.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 372—Matthew F. Kennelly, Judge.

A RGUED M AY 14, 2008—D ECIDED O CTOBER 6, 2008

Before B AUER, F LAUM and M ANION, Circuit Judges.
2 Nos. 07-1120 and 07-1427

B AUER, 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.
Nos. 07-1120 and 07-1427 3

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 investi-
gation 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 inten-
tional 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 gov-
ernment 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
4 Nos. 07-1120 and 07-1427

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

1
In an odd twist—ultimately without any impact on this
case—the clerk apparently did not follow the court’s order and
failed to enter the judgment on the jury’s verdict until after it
entered the judgment on the FTCA claim. We subsequently
granted the district court leave to correct this clerical error,
and the district court entered judgment on the jury’s verdict
nunc pro tunc to March 25, 2005.
Nos. 07-1120 and 07-1427 5

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 improp-
erly 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 FTCA and Bivens claims
6 Nos. 07-1120 and 07-1427

were “of the same subject matter,” which courts have
read to mean “arising out of the same actions, transactions,
or occurrences.” See Estate of Trentadue ex rel. Aguilar v.
United States, 397 F.3d 840, 858 (10th Cir. 2005) (citing
Serra 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]lain-
tiffs 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 argu-
ment 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
Nos. 07-1120 and 07-1427 7

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 claim-
ant,” Manning posits that § 2676 bars all other “ac-
tions”—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 writ-
ten when the language is plain and unambiguous. See
Dodd 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.” (quoting Hartford Under-
writers 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,
8 Nos. 07-1120 and 07-1427

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 dictionaries to
determine the plain meaning of words.”). Manning’s
Bivens claims existed as part of a “civil judicial proceeding”
at the time that the court entered judgment on the FTCA
claim. By acting as a bar to any action, § 2676 bars the
claims within that action. This reading of the meaning of
the term “action” also makes sense within the context of
the entire statute. Though Congress could have been
more explicit in indicating the application of § 2676 to
claims in the same suit as the FTCA claim, the choice of
broad language—“a complete bar to any action”—makes
clear that the bar was intended to apply to such claims.
See Serra, 786 F.2d at 239.
Manning’s interpretation of § 2676 strains the plain
language of the statute by suggesting that the term
“action” does not include the claims within that action. A
claim is a part of the broader term action, and we do not
see how the judgment bar could be read to preclude
the whole while preserving its parts. An interpretation
that § 2676 was intended to bar only subsequent law-
suits by the same party arising out of the same set of
facts does not find adequate support in the text.
No court has interpreted § 2676 in the manner put forth
by Manning; to the contrary, courts have consistently
Nos. 07-1120 and 07-1427 9

found that an FTCA judgment bars a Bivens claim raised
in the same suit. See Harris v. United States, 422 F.3d 322
(6th Cir. 2005); Estate of Trentadue ex rel. Aguilar v. United
States, 397 F.3d 840 (10th Cir. 2005); Engle v. Mecke, 24
F.3d 133 (10th Cir. 1994); Arevalo v. Woods, 811 F.2d 487 (9th
Cir. 1987); Serra, 786 F.2d at 241; see also Clifton v. Miller,
139 F.3d 901 (7th Cir. 1998) (unpublished opinion); Ortiz
v. Pearson, 88 F.Supp.2d 151, 167 (S.D.N.Y. 2000). Like
these courts, we find that “it is inconsequential that the
[Bivens and FTCA] claims were tried together in the
same suit.” Serra, 786 F.2d at 241.
Manning complains that to hold that the judgment
bar applied in this case would contradict our ruling in
Hoosier Bancorp, where, Manning argues, we instructed
plaintiffs to bring both claims simultaneously in the
same lawsuit. Manning overstates our directive. In
Hoosier Bancorp, we encouraged plaintiffs with claims
under Bivens and the FTCA to pursue those claims con-
currently in the same suit. 90 F.3d at 185. We never stated
that plaintiffs with both claims must pursue both claims
to judgment in order to recover any damages; more to
the point, we never stated that a plaintiff could keep both
a Bivens and an FTCA judgment, or that the FTCA judg-
ment bar would not apply to actions such as this. Plaintiffs
like Manning who choose to pursue both avenues of relief
must assume the risk that a Bivens judgment would
be nullified by § 2676. We will not undo what amounts
to the inevitable result of a strategic choice by Manning.
Manning further argues that this result either forecloses
Bivens or renders it superfluous. The Supreme Court in
10 Nos. 07-1120 and 07-1427

Carlson v. Green stated that it is “crystal clear that Congress
views FTCA and Bivens as parallel, complementary
causes of action.” 446 U.S. 14, 19-20, 100 S.Ct. 1468, 64
L.Ed.2d 15 (1980). Reading the statute to bar claims in the
same suit would eviscerate the Bivens action against
protection of these claims in Carlson, according to Man-
ning. We disagree. A plaintiff may still bring both
parallel claims as remedies to torts committed by law
enforcement officers against the government and the
individual officers, and the remedies complement each
other. But the idea that a plaintiff may bring claims
against both the government and the federal officer does
not directly implicate whether one may pursue those
claims to judgment. Both remedies remain as viable
causes of action, but because of the broad language of the
judgment bar, plaintiffs must make strategic choices
in pursuing the remedies. We do not think it unreason-
able to require a plaintiff that moved for judgment on a
successful Bivens claim to decide whether or not it makes
sense to voluntarily withdraw a contemporaneous FTCA
claim. See, e.g., Engle, 24 F.3d at 134; Ortiz, 88 F.Supp.2d at
167. Such a requirement does not run afoul of Carlson
or Hoosier Bancorp.
Manning also relies on the Supreme Court’s ruling in
Will v. Hallock, 546 U.S. 345, 126 S.Ct. 952, 163 L.Ed.2d
836 (2006), arguing that the case supports his reading of
§ 2676 and supercedes all of the cases cited above. In Will,
the Court addressed whether a district court’s decision
to refuse to apply the judgment bar of § 2676 was open
to collateral appeal. The Court found that a statutory bar
to litigation did not necessarily constitute the kind of
Nos. 07-1120 and 07-1427 11

immunity from suit that justifies an interlocutory appeal
under the collateral order doctrine. In so doing, the
Court observed that the FTCA judgment bar had an
“essential procedural element” which set it apart from
other forms of immunity; namely, that the judgment bar
would not take effect until the after the district court
entered an FTCA judgment. This element distinguished
it from other forms of immunity from suit (such as quali-
fied immunity), which are timely from the moment the
complaint is served, and therefore warrant collateral
review. The Court explained:
If a Bivens action alone is brought, there will be no
possibility of a judgment bar, nor will there be so long
as a Bivens action against officials and a Tort Claims
Act against the Government are pending simulta-
neously (as they were for a time here). In the present
case, if [the plaintiff] had brought her Bivens action
and no other, the agents could not possibly have
invoked the judgment bar in claiming a right to be
free of trial.
Id. at 354, 126 S.Ct. 952. This procedural element likens
the § 2676 bar to res judicata, the Court noted, which,
except in the rare case, did not warrant collateral review.
Therefore “[a]lthough the statutory judgment bar is
arguably broader than traditional res judicata,” like res
judicata, the statute does not “protect values so great that
only immediate appeal can effectively vindicate them.” Id.
at 354-55, 126 S.Ct. 952.
Manning first extrapolates from this analysis that
Congress incorporated principles of res judicata into
12 Nos. 07-1120 and 07-1427

§ 2676, which, according to Manning, would indicate an
intention that the bar not apply to multiple claims within
a single suit. He contends that like the judgment bar, the
purpose of res judicata is to avoid multiple lawsuits, a
concern which is not implicated when plaintiffs bring
all claims in a single action. Manning supports his argu-
ment by noting the use of the term “bar,” which con-
stitutes a component of res judicata, and the legislative
history of § 2676.
Regardless of whether the point has relevance to our
inquiry, Congress did not import common law res judicata
into § 2676. As to the discussion in Will, Manning’s argu-
ment draws too much from the Court’s comparative
point. Rather than suggesting that § 2676 imported princi-
ples of res judicata, the Court merely observed that the
judgment bar was akin to res judicata in that a decision
based on either did not warrant collateral review. The
judgment bar—which is “arguably broader than traditional
res judicata”—stands on its own. Additionally, we find
little in the use of the term “bar” to support Manning’s
argument. The use of the term “bar” is not confined to
the principle of res judicata; we refer without reference
to the principle to statutes of limitation “bars” or jurisdic-
tional “bars.” We also find little support for Manning’s
argument in the legislative history of § 2676. Be-
cause § 2676 is not ambiguous, we need not look to the
legislative history to determine its meaning. See Exxon
Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568, 125
S.Ct. 2611, 162 L.Ed.2d 502 (2005). But assuming arguendo
that the proposed reading is texturally plausible, the
legislative history does not alter our view of the best
Nos. 07-1120 and 07-1427 13

interpretation of § 2676. The legislative history relied
upon by Manning—a statement by the Attorney General
before the House Judiciary Committee—neither mentions
res judicata nor limits the scope of the judgment bar
to exclude cases such as Manning’s.
Finally, in his reply brief, Manning culls another argu-
ment from the language in Will. He contends that ac-
cording to the portion of the opinion quoted above, the
judgment bar “does not apply when FTCA and Bivens
claims are pending simultaneously.” Because his two
claims were “pending simultaneously” in the same case,
the argument goes, the judgment bar should not apply.
That is not the holding of Will, and the “pending simulta-
neously” language from Will is taken out of context. In
analyzing the “essential procedural element” of § 2676,
the Court noted that the judgment bar does not take
effect until a judgment is entered. As long as the FTCA
claim is “pending”—i.e., not taken to judgment—the bar
has no effect. That “procedural” element distinguishes
it from qualified immunity, and renders it unfit for collat-
eral review. That discussion has no bearing on the
case before us, Manning’s efforts to force the language
notwithstanding.

B. Application of § 2676 to Previously Entered Judg-
ments
Manning alternatively argues that even if the judgment
bar applies when FTCA and Bivens claims are brought in
the same action, it should not be read to allow retroactive
nullification of a previous Bivens judgment.
14 Nos. 07-1120 and 07-1427

Again, we begin with the language of the statute, which
we find unambigious. Manning argues that the use of the
term “bar” precludes only future litigation, not litigation
that has previously proceeded to judgment. We disagree.
Nothing about the term “bar” on its own indicates a
temporal element. The “complete bar” as used in § 2676
is prospective only in that it enters into effect after an
entry of judgment in the FTCA claim; but there is nothing
in the text restricting that effect to future claims. The
common use of the noun “bar” supports this reading. See
Black’s Law Dictionary 157-58 (8th Ed. 2004) (defining
“bar” as a “barrier to or the destruction of a legal action
or claim”). So too does the remaining text of the statute.
Section § 2676 applies to “any action”; “any” means “any,”
regardless of the sequencing of the judgments.
Few courts have addressed this issue, primarily because
in the overwhelming number of cases where FTCA and
Bivens claims are brought in the same suit, a district court
will enter judgment on the FTCA claim either before or
simultaneously with the Bivens judgment. In Trentadue,
our sister circuit found that § 2676 applied to retroactively
bar a Bivens judgment entered prior to a FTCA judgment.
397 F.3d at 859. In that case, as here, the district court
tried plaintiffs’ FTCA and Bivens claims contemporane-
ously in a bifurcated proceeding. A jury found for the
plaintiffs on the Bivens claims, and the district court
entered a judgment. Several months later, the court
entered a judgment on the FTCA claims. The court then
dismissed the Bivens claims, finding that § 2676 applied.
The court found that the sequencing of the judgments
was irrelevant to the judgment bar’s effect. In doing so, it
Nos. 07-1120 and 07-1427 15

relied on the intent of § 2676, which “prevent[s] multiple
lawsuits as well as multiple recoveries.” Id. (citing Farmer
v. Perrill, 275 F.3d 958, 963 n. 7 (10th Cir. 2001)).
Other courts have approved of the proposition that a
judgment on an FTCA claim requires vacatur of an earlier
judgment on a Bivens claim. See Engle, 24 F.3d at 135 (“Had
[plaintiff] chosen to seek his redress from the individual
law enforcement officer, the jury verdict would have
been given full effect. . . . Because, however, he chose to
seek redress from the United States government, he had
no right to a jury’s verdict.”); McCabe v. MacAulay, 2008
WL 2980013, at *14 (N.D. Iowa August 01, 2008 ) (citing
Trentadue, 397 F.3d at 859) (“[I]t is ‘inconsequential’ that the
court entered judgment [in the Bivens action] before it
entered judgment against the United States; the judgment
bar may operate retroactively.”); see also Ortiz, 88 F.Supp.2d
at 167 (citing Engle, 24 F.3d at 134-36 and Serra, 786 F.2d
at 241-42) (noting that if a plaintiff brings both claims in
the same action, and succeeds on the Bivens action first,
“[a] decision to then proceed on the FTCA claim might
jeopardize any favorable verdict plaintiff received on his
Bivens claim since . . . a decision and judgment on the
FTCA claim is likely to nullify any Bivens judgment”).
We agree with the reasoning of these cases. The fact that
the court entered judgment against the FBI agents before
it entered judgment in favor of the United States has no
bearing on the application of § 2676.
Manning’s reliance on Kreines v. United States, 959 F.2d
834 (9th Cir. 1992), is misplaced. There, the plaintiff
brought Bivens and FTCA claims in the same suit. The jury
16 Nos. 07-1120 and 07-1427

found for the plaintiff on the Bivens claim, and the court
entered a judgment. Three months later, the district court
entered a judgment in favor of the United States in the
FTCA claim. The court then denied a motion by the
defendants of the Bivens claim to vacate the judgment
against them. The Ninth Circuit affirmed, finding an
ambiguity within the plain language of the term “judg-
ment” in § 2676 that allowed an interpretation that Con-
gress intended to distinguish between favorable and
unfavorable merits judgments. The judgment bar would
apply, according to the Kreines court, if an FTCA judgment
were in favor of the plaintiff, but not if the judgment were
in favor of the government. Accordingly, § 2676 did not
apply.
As noted above, we have rejected the underlying reason-
ing in Kreines, and therefore do not attach much signifi-
cance to its outcome. Hoosier Bancorp, 90 F.3d at 185 (“There
is no indication that Congress intended Section 2676 to
apply only to favorable FTCA judgments.”). Other courts
have also repudiated the reasoning of Kreines. See
Harris, 422 F.3d at 335; see also Gasho v. United States, 39
F.3d 1420, 1437 (9th Cir. 1994) (noting that “the holding in
Kreines was narrowly confined to its facts”). Thus while
Manning may find appealing the result of Kreines, the
reasoning supporting that result does not avail him.
Many of Manning’s remaining arguments are equitable
in nature, suggesting that he was blindsided by the
court’s decision or that he was unwittingly led into a poor
strategic choice. The record belies these arguments. During
the course of the proceedings below, Manning acknowl-
edged an awareness of the risk that a judgment on the
Nos. 07-1120 and 07-1427 17

FTCA claim wold nullify the Bivens judgment. In his
motion to enter judgment on the jury’s verdict on the
Bivens claim—filed before the entry of the FTCA judg-
ment—Manning noted the possibility that entering judg-
ment might bar his Bivens claim, as some courts “believe
that judgment on the FTCA claim is ‘likely to nullify any
Bivens judgment.’ ” As the district court noted, Manning
“was aware that by allowing the FTCA claims to
proceed to judgment, he risked losing the jury award, by
operation of law, once the Court entered judgment on
the FTCA claims.”

III. CONCLUSION
We are not blind to the fact that this interpretation of
§ 2676 results in a significant reversal of fortune for
Manning. Manning condemns this result as “nonsensical”;
at least one court has identified such a result as “harsh.”
See McCabe, 2008 WL 2980013, at *15 (“Although such
retroactive operation of § 2676 may seem harsh, if not
Kafka-esque, Plaintiffs pursued their claims against the
United States at their own peril.”). But we are bound by
the plain language of the judgment bar, which makes
no exception for claims brought in the same action, and
gives no indication that the sequencing of judgments
should control the application of the bar.
Manning’s decision to take the FTCA claims to judgment,
after he had secured a $6.5 million verdict on the Bivens
claims, triggered § 2676 and required a vacatur of the
Bivens judgment. The district court did not err in
applying the judgment bar. Because we find that § 2676
18 Nos. 07-1120 and 07-1427

applies, we need not reach the conditional cross-appeal.
Accordingly, we A FFIRM .

10-6-08