we'll hear argument first this morning in case fifteen one o nine simmons versus demoed reich mr martinez mr chief justice and may please the court when an f t c action is dismissed under section twenty six eighty the resulting judgment of dismissal triggers the judgment bar for two basic reasons first the bar applies to any f t c a judgment and a twenty six a dismissal counts as a judgment under any sensible definition of that term second twenty six eighty dismissals implicate the bar's core purpose which is to protect the government its functions and its employees from the burdens and disruptions associated with multiple lawsuits over the same subject matter meaning the only claims that are exempted under the act are bevins claims which are constitutional violations why is it that an employee who has committed a constitutional violation is now in moon from says merely because the plaintiff's lawyer named a mistake and didn't file a business kind of nurse your honor the core purpose of the judgment bar is this court recognizing will vs how it is to protect the government from having to litigate multiple times over the same claim and so i don't blame you for that but you didn't litigate multiple times here the exemption applied immediately and the case was over with respect honor we did let it get multiple times the the f t c was brought it was pending for over three years that the point of bevan's claim was burnt shortly thereafter they were both simultaneously pending before the court rights as the court had elected to address the bevins claim purse the bar would have been avoided well i think that the two cases were brought in two different actions one was brought several months after the other and the  action which is the one that obviously congress was considering when it inactive the judgment bar was one that took over three years to to conclude i count in the three different appeals that the plaintiff took to it still doesn't answer my point which is the district cases and in this business case load hasn't yet been litigated the the employee is going to raise defenses like qualified immunity and other defenses on the merits they're going to take a long time for that claim to get that just means that we're giving district courts the a claim i think what's important to realize here is that what congress did when it inactive the f t c a was essentially create a new remedy and offer a bargain to victims and said look we're going to create a brand new remedy directly against the united states for money damages it's a great deal for you but if you accept the deal if you accept the bargain and you choose to bring an f t c a case and then you choose to litigate that case all the way to judgment you can't turn around and seek relief under a totally separate claim involving the same fa with with respect to what congress did in the westfall act there's no question that congress wanted to preserve the option for the plaintiffs to bring a bridge it didn't claim and there's nothing in our theory of this case that precludes that that would have precluded the plaintiff from bringing that  at at the outset but it's very interesting i think it's very telling what congress did in the westfall act it's as you adverted to in section twenty six seventy nine b two of the westfall act congress specifically said that the exclusiv provision that it hadn't acted in twenty six seventy nine b one would not apply to bivins claims and so it expressly carved out an exception for such claims but when it did that it did not carve out a similar exception for bivins claims to the judgment bar which is the separate provision in section twenty six seventy six that's at issue in this case and so congress created an exception to this essentially say the plaintiffs you can still bring your bivins claim at the outset but it didn't disrupt the original bargain at the heart of the f t c day which is that once you bring in f t c a claim once you litigate that claim all the way to judgment you can't try to take a second bite at the apple by having a separate claim pending at the same time you would have a nice clean textual argument if you were willing to argue that judgment means judgment means any judgment but in your reply brief you say that perhaps a technical or procedural judgment is not a judgment under the judgment bar provision so what does that mean what is the technical or procedural judgment so i think first of all i think our our primary position is that judgment does mean judgment in the sense that is defined i think we give nine different directed dictionary definitions of pages one thousand and twenty of our brief and i think it's it's we think that the most sensible reading of judgment is the way it's ordinary used in legal parlance now that said we do acknowledge in our reply brief that a couple of those definitions including the ones that we reproduce we weren't trying to cherry pick definitions we just reproduced i think there were six of them from black's law dictionary from one nine hundred thirty three that we reproduced and i think three of those definitions seem to say that a judgment has to resolve issues of the parties rights or issues of liability so it's possible it will again we don't think this is the best reading but it's possible if you only applied one of those three definitions that maybe certain kinds of dismissals that are based on curable procedural defects that really don't get to the liability issue in the case at all it's possible that that those might not count as judgments but we don't think this case presents why would the dismissal for lack of jurisdiction be a procedural procedural judgment i think in in many cases a dismissal for lack of jurisdiction could well be a procedural judgment but not in in this case because twenty six eighty  missals are special and unique in so far as they are jurisdictional as both parties agree but they're also substantive as this court has said many many times over and over again in cases like indian toing and cases like levon most recently just a few under twenty six eighty it's making a substantive determination that there's no liability and i actually don't think that that my my my friend on the other side would disagree with that i think in his own brief and pages eleven and twelve he makes clear that a twenty six eighty  particular point is because we're trying to figure out what the meaning of the word judgment is in section twenty six of the f t c so we're trying to figure out whether the adjudication of a particular f t c a case would qualify as a judgment and i think there's no question that w if i could ask you about the one i tend to be the respondents primary argument in the case now which is the meaning of this phrase the provisions of this chapter in section thirteen forty six b shall not applying at of course that would include the judgment bar so if you take that provision for all it's worth it says that the judgment bar shall not apply so what is your response to that well i think we have two two responses our main response and this is the one that we develop the most fully in our applied brief is that that language does not mean what he say what he says it means we think that that language means what this court has essentially said in a number of cases most clearly in the dole in case involving the postal service about ten years ago what the court said there was that the twenty six eighty exceptions that whole provision set forth exceptions to the government to the united states waiver of sovereign immunity in a den of fide that waiver of sovereign immunity as being effected in two different provisions of the f t c a that's thirteen forty six b the jurisdictional provision and twenty six seventy four the liability provision so we interpret that introductory language the way this court has interpreted it in cases like dolan said the same thing and i don't really does make the  the language something that's not instead of the provisions of this chapter and thirty and forty six b that's what the provision says you were essentially reading that to say section twenty six seventy four of this chapter and section thirteen forty six b so that's a real shift and what the language actually says well i think i would i would say two things to that your honor first of all we think that's consistent with the way that the court has interpreted twenty six eighty in the prior cases like dole and levon that i just mentioned but more fundamentally i think the court already considered and rejected this exact argument about the introductory language the shall not apply when which and it rejected that argument in the smith case united states versus smith now that case  where in that case we explicitly address that which you reject it if you didn't express explicitly discussed that language but the holding of the case was that one of the provisions of this chapter twenty six seventy nine b did apply to a twenty six eighty claim and so that that's obviously inconsistent with the idea of the argument the respondent makes which is that none of the other provisions of this chapter would be good and if i could if i could just so i just says creates an exception to the general rule of likability i think i think that that would not be the best reading of smith because i think that would suggest that the court saw some sort of conflict between the umbrella language the introductory cla and section twenty six seventy ninety four which is what you're talking about i actually think section twenty six seventy ninety four helps us because what it shows is that congress shared our understanding of what the shall not apply language means congress enacted section twenty six seventy nine in smith we brief that in smith your honor and so also you brief it extensively in smith in the court said nothing about it no the the court the court's holding it was on i know the court's holding but in terms of the analysis of it that the court did made a page twenty one the government then devoted a significant chunk of its brief pages nineteen to twenty four to refute that argument and i think probably because the argument the government made a fairly compelling case the plaintiff then asserted that argument only on one page of page forty four and then he raised it at oral argument on page thirty five and if responder's theory were correct that would have meant that smith would have had to come out the other way why i thought i didn't understand but i thought  questioned in smith there was a suit again something happened to braun is that right and they said that the employee they hold in the holding that the employee could not bring the suit that's right it said that eighty because it involved a tort that happened overseas and the question in the case was whether the substitution provisions i think it was a state court or some other cause of action the question was whether twenty six seventy nine b c and i will absolutely take it in suppose i come to the conclusion that smith like so many of our cases deals with a certain number of issues and maybe there were alternative grounds and we didn't get to them and i conclude that smith in fact is not a bar to the argument that the other side is making on that assumption yes is the case over and they will know because as you know and just just to tie off the point i think that it's this was not an issue of whether there were maybe alternative grounds this was the square issue in that case the case could not have come out the way i understand you think smith is the end of it and all i'm saying is one of the things i'm paid to do is read those cases and then i have to reach a conclusion of whether smith is the end of it if it's the end of it you win right now if it's not the end of it do you lose you know we did we don't lose fur a number of reasons first of all the the arguments that we made  provisions of this chapter shall not apply to cases that are based on the exercise of performance of the failure to exercise or perform a discretionary function shall not apply to ok it looks pretty good for you but over here it says the judgment bar joke constitute a complete bar that's very good for you but just since it didn't apply is this this chapter does not apply i think it says the chapter doesn't apply and that's in the we're a couple responses here on a first of all just as a textual matter we think that the what what twenty six twenty six eighty what that language says is the provisions of the chapter don't apply to categories of potential claims so the word is they don't apply to claims the judgment bar doesn't operate on the basis of claims it operates on the basis of judgments it talks about an f t c a judgment a judgment in a claim are obviously different the claim is an assertion of a legal right before it's been adjudicated or while it's being adjudicated slicing the baloney pretty thin and and i mean you know they're trying to set up language that applies to a whole bunch of different provisions and saying you know all of these provisions don't apply basically i think that i think that if you even if you think the best place in the blarney to thin i don't think you need to resolve a case on the basis of that argument because i think there are two additional very strong reasons to reject their reading of the introductory clause in addition to smith which we've already talked about the next reason is that it's that that reading of smith is inconsistent with numerous other provisions of the original f t c a justice kagan you just said that you know the plain text seems to say that they wanted to exempt twenty six eighty claims from all of the provisions of the f t c way and arguably that's what the literal language seems to say but if you look at the original f t c eight that that cannot possibly be what that language means and so let me point you just to four different provisions of the original f t c that don't terms for use throughout in the throughout the f t c ok and it defines several terms that are used in multiple places within twenty six eighty two for spanish theory were correct the other provisions of every other provision of the f t c doesn't apply to twenty six eighty the good news for us is that we have three other provisions that i think also don't make any sense based on their reading and so if you look at section four eleven of the original f t c and that's page twelve a of our brief section four eleven is the one that applies the federal civil procedure now obviously the federal rules of civil procedure supposed to be used to adjudicate claims that fall within twenty six eighty but on their reading of the statute the federal rules of civil procedure would appear not to apply if you look to the very next page and there next provision when they apply anyway you need a provision congress is specifically saying that they would apply i think you probably didn't but congress seem to think that you did in all the other statutes like the tucker act unlike the suits in admiralty act where that where congress is waiving the sovereign immunity of the united states it thought it needed to set forth a specific provision in the statute with xander immunity applying the civil rules and in fact the fifth circuit in a case just five five or six years before the f t c was passed had said that the rules would not apply to a talker claim so congress was clearly had this problem in mind and was trying to address that and why is that bad so i mean look what this is as i read it simply if i can look at the top of  aig the provisions of this chapter shall not apply to and then we have a long list one of them is an action rising a claim the based on a foreign country so i  following nothing applies when you don't have an action but if you file the action anyway and then the court is adjudicating the action and at issue in the action is whether for example the action involves a federal agency which is a defined term or an employee of the government which is a defined term then you would have to ordinarily you would you would think that the definitional provisions would shed light on that question and so if you are correct though that the definitional provision doesn't apply then you wouldn't know where to look for the definitions and if you were to lose that case and if the government were to win and you wanted to take an appeal that your right to appeal is also one of the provisions of this chapter in that section four twelve a of the original f t c day and that reproduced a page thirteen a of our brief and respondents theory that appeal provision wouldn't apply because it's one of the other provisions of this of this chapter and in the final printed i want to point to monthly just in the normal appeals preventions would apply you would still be able to appeal a case you just wouldn't have the special court of claims option right but but that's what respondent says and he says that that this of course makes perfect sense because congress didn't want the court of claims to be adjudicating the applicability of the twenty six eighty exceptions but that argument doesn't make sense for two reasons first of all if the government were to lose with respect to twenty six eighty the case would go forward and be resolved on the merits maybe the government loses that to it could then take an appeal to the court of claims at which point the court of claims would be confronted if the government appealed the twenty six a determination sent the provision allowing appeals going to the court of claims to twenty eight u s c fifteen zero four which is a different provision it's not a provision within chapter one seventy one but there when it said that what the court of claims jurisdiction was it said creates massively disruptive consequences with respect to in practical terms today that section four twenty three of the original f t c and it's the provision that's now codified at section twenty six seventy nine  the current f t c so let me just say a word about this provision that's the one hundred sixteen your best bet is the one hundred sixteen a of you want to look at the original version it hasn't really changed you can also look at the at the current version and i apologize for the confusion you know there are a lot of statutory provisions in this case the current version of twenty six seventy nine a page three essay now this is the other three which ones are still current today so the definition provision is still there the federal rule civil procedure provision is not there the appellate review provision interesting lee has been there has been sent to a different provision it has been sent outside the outside of chapter one seventy one the one that matters the most is section twenty six seventy nine and that's the provision that says that the f t c is the exclusive remedy and preclude state tort suits against agencies that would otherwise have been suable under their sue and be sued authority and the idea behind that provision is to put  sentially all federal agencies on the same footing whether or not they have independent authority to sue and be sued when it comes to tort claims if under respondants theory section twenty six seventy nine days protections do not apply to twenty six eighty claims and what that means is that agencies that have sue and be sued authority are now subject to such claims now that would in very practical terms would massively expand the united states government direct liability for tort and i think the biggest problem and the most concrete example i can give you is with respect to the postal service now we know from section twenty six eighty b of the f t c say that congress wanted to eliminate the possibility that the government would be liable for the loss of mail or for the negligent transmission of of mail but the postal service has independent soon be sued authority so if twenty six seventy nine a is respondent says doesn't apply then what reading this provision an individual who chooses not to go under thirteen forty six and simply sue the individuals involved could do that right either under a bevins claim or under the administrative center what you're seeing is you have the opportunity as the united states to step in if he chooses that if it begins claim is brought then the judgment bar would have no operation but that is consistent with the purpose of the judgment happen or can happen why does the reading being proposed by the other side create a difficulty well i think if the bivins claim can be brought then the british claim is brought against the individual employee so the united states government is not liable for you know to take the example we set for the negligent transmission of mail and if if the courts in this court has questions i'll reserve my time for about oh thank you counsel liability for the torts of its employees a plaintiff who tries his claim against the government may not seek a second bite at the apple or duplicative recovery by suing the employee personally that's the fair bargain but where the united states has not waived derivative liability the judgment bar is not a gotcha provision that prevents a plaintiff who sued the wrong defendant from there after suing the correct defendant the primarily liable employ those claims are outside of the  bargain and the shall not apply directive of section twenty six eighteen makes this perfectly clear as some of the justices recognized during counsel's presentation that language says that the other provisions of the act shall not apply this unambiguously includes the judgment and there is no inconsistency between that understanding of the shall not apply language in any of the other clauses or any of this court's case it can't be read in a strictly little sense because then twenty six eighty itself would not apply well that that's somewhat circular justice alito it has a right that's one one way that we're album of a purely literal reading of this i think it says the  not apply to these provisions it has to apply to itself no other but it's the literal interpretation is not inconsistent with any of the other provisions not applying it's not inconsistent with this court's decision and smith in smith this court focused on the language of twenty six seventy nine b which said westfall act claim shall be subject to the exceptions that language combined with legislative history that smith examined or congress said if a claim is barred against him against the has plain language later in acted language that governs over the earlier when the hope and i mean of us thought was to allow substitution so if that didn't apply then there wouldn't be substitution and there would be no point in having the westfall but certainly you can look at that way so yes i mean for a provision to overcome the literal language of the shall not apply directive you would need an absurd result from following it's an overt overcome language maybe you have observed result in westfall or any of these other provisions that could justify it but there's not a point to some confusing who's who's confusion who's an employee of the government is the provision construed to include a contractor those are all spelled out in the definitional provision now under your argument those definitions are off the table and you can litigate for days on end about does this cover a contractor of the united states and you're saying well normally you'd say well let's look at the definition and says well yeah it says that right there but under your argument no the definitions are not included now we think the definitions are included because definitions govern statutory terms they don't cover claims and i don't think with all due respect to that slice of the blowing then at all that the definitions apply to the terms and the choice except claims provision of the chapter and it doesn't is under your reading which is a strict literal one that it shall not apply those provisions shall not apply to any claims ok well somebody brings a claim against the contractor of the united states and again you're saying w we don't look to the definitions in the act to determine who's a contractor in the united states because that provision doesn't apply or you can look to the definitions to understand what twenty six eighty says and then once you have that understanding the other substantive provisions don't apply and i'll give an example federal of evidence eleven zero one states that these rules do not apply so a certain category of cases including preliminary proceedings in a criminal case federal rule of evidence want to one defines what a criminal case nobody would say it's inconsistent with the do not apply directly to federal eleventh eleven a one to read the definition of a criminal case to figure out when the federals of evidence don't apply or that that somehow gives license to courts to then decide which other rules do and do not apply none of the rules apply to certain aspects of a criminal case but you can refer to the definitional rule to understand what a criminal case is about review provisions those seem to be a particular predecessor to twenty eight u s c twelve ninety one was judicial code section one twenty eight so parties could rely on that to appeal to the circuit court so the special review provision to the court of claims did not apply to twenty six eighty dismissals and we suggested that was sensible because congress could have wanted judgments against the united states money judgments against the united states primarily to be reviewed by the specialized court of claims but to have ordinary dismissals under twenty six eighty jurisdictional dismissals reviewed in the ordinary course by the i can see that about his fourth that is imagine a plaintive and the plaintive brings a lawsuit against the post office for negligence the government's defense is that this is a discretionary function  particular thing and the plaintiff says you're right it's a discretionary function and now it's dismissed or right now if the that last thing he read doesn't apply because it was discretionary function and fell within twenty six eighty then you could sue the post office on the basis that the post office has independent authority to sue or be sued and it's hard to  that congress somehow when they pass these words does not apply suddenly wanted to revive all kinds of suits against for example the post office which otherwise would have been barred by that last provision that he read and the post office is a great example your honor because when congress enacted the soon be sued clause for the post office they kept they inserted another provision now at thirty nine u s c section four hundred nine which said that tort claims against the post office suit will be two answers that the discretionary function exception is a common law exceptions though it may be that so boy agencies have that defense available to them anyway it existed before the f c c a was created as a common law defen three of the exceptions under twenty six eighty aren't suitable agencies themselves so if you read twenty six seventy nine as applying to the exceptions there reading of the statute you create a situation where say the panama canal company are you saying this in essence even if there are other provisions that aren't racist even if they're on this particular a sure means that in an action that is dismissed an action against the government for the reasons listed in those exceptions for example a foreign country is discretionary exemption in such an action you can sue the employee where ordinary principles of race judicata are doing wouldn't bar you from suing the employee after all it's a different part that's our position to enter and you can only sue the employer today on constitutional tort claims under but everything any claim if it's full is within reason for the bar the reason for the dismissal falls within the exception and if they wanted to change that they should have said that that's exactly right your honor and and is that another way of saying that the judgment by applies just to judgments on the merits or is that someone different from your well that's one of our arguments your honor we get to the same result not through same as the argument you just make because i'm curious to know if if if we think smith was an interpretation of twenty  six and you had to get around smith and it's awkward to do it what your second argument is that the argument you're now making to justice prior or is that different from saying that what we're talking as judgement on the merits was i as i understood just as broad as question was the consequences of our argument and our three arguments lead to the same consequences but yes your honor we take the position that judgment means a judgment that would under the common law have conclusive effect so if you move away from the shall not apply language which we think is the most straightforward way of resolving this case and to the language of the judgment part self we have two arguments under the judgment bar one is that the judgment bar is only triggered by an action under section thirteen forty six big and again the shall not apply language has thirteen forty six b shall not apply i think once you've at once they've answered the complaint or honor i don't think the plaintiff can just dismiss or amend the complaint without seeking leave from the court which may result in a judgment of dismissal even a judgment of voluntary dismissal as i understand their view that judgment means any judgments would trigger the judgment bar under that rating so surely turn to justice kennedy's question on judgment in particular we think it incorporates principles of provision i think that's a great analogy to this case but i take you back to the shall not apply language for a second and when when you were speaking to the chief justice you said well the definition of section will continue to apply because definitions apply to terms and not to claims but then mr martinez said something very similar to that he said the judgement are applies to judgments not claims so if you are right as to that why isn't he right as well and the consequence of his being right was is that he would have taken the judgement are out of that sweeping shall not apply which is well the judgment bar actually uses the language of claims its says the judgments constitute a complete bar to any action by the claimant by reason of the same subject matter against the employers act or omission gave rise to the claim so the judgment bar is talking about barring a claim a claim  claim under the f t c a can be brought vicariously against the government as employer it's agreed to subject itself to respond to that superior liability on the claim where these claims are accepted you know the you know ordinarily the judgment bar would then say if you have a judgment the claim can't be brought against the employee twenty six eighty says it shall not apply to these sorts of claims so when you have an intentional tort claim for which the government has not expect excepted responding at superior liability the bar on bringing that claim against the employee does not apply so it's not the context of where you need to read the definition in order sensibly apply the words of the provision it's actually a operative provision than operates on a claim and it's in this context purporting to operate on the claim that's been excluded by the shall not apply language to go back to the point you were making before under your kata but at the time and i think this is a strong can text will clue of what congress was trying to accomplish with this provision a judgement against an employee would be pretty against a claim against the employer on the same subject matter and that's because of reasons of potential indemnification by the employee owed to the employer so that the employee could potentially be sued twice on the same claim once by the plaintiff and once by the employer seeking indem but it did not operate the other was a judgment in the in one thousand forty six under the restatement against the employer didn't bar the plaintiff from then suing the employer so the judgment bar fills this gap and explains the unique direction  against either under my understanding of modern preclusion principles it would not have then and this case this type of case where a claim is dismissed on a jurisdictional grounds that the government hasn't accepted responding answer period liability doesn't involve any adjudication of the substantive merits of the singular tort claim that the plaintiffs you know the injury the plaintiff suffered he tried to bring the case against the government by the fell outside of the bargain the government at the threshold is found not to have accepted responded at superior liability on this claim but you want us to decide this case based on a literal reading of twenty six eighty but the sixth circuit did not decide the case on that ground and we don't have to address that do we know why should we not decide whether the sixth circuit was correct in its reasoning and apply the same literal reading approach that you recommend twenty six with respect to twenty six eighty two the judgment bar and hold that a judgment is a judgment and not necessarily a judgment on the merits and then because the issue under twenty six eighty is  as i think the argument has shown is very complicated two points your honor first i don't think the argument was waived this is not a separate ground for relief it's a separate argument it's a separate it's a it's another ground for a correct it's an alternative grounds for a firm in which we have discretion to decide whether we want to reach or not i think it's an alternative argument for the same ground for apartments the question presented was whether the twenty six eighty dismissal triggers the judgment bar this case is about the interaction of two provisions and it would be very artificial for the court to ignore the text of one of those provisions and focus solely on the text of the other provision substantively i think the term judgement is an ambiguous term whereas the term apply is not an ambiguous term judgement can mean different things in different contexts a commune different things within the different provisions of the act and some of the provisions of the act it seems to me it mean a war against the government they talk about the fee as a percent of the judgement they talk about how the judgement is to be to pay that's twenty six seventy two so judgments an inherently ambiguous word in the court would need to grapple with that ambiguity if it tries to resolve the case that way  and again i think the issue it was raised in our bio it's logically intertwined with the question so i think the court really in order to answer the second part of the question intelligently the court needs to address the first part of the question as well you mr chief justice i have two main points that i'd like to make first with respect to the postal service it's true that the postal reorganization act says that the f t c a applies to towards that involve the postal service but respondants whole argument is that the f t c is protections of sue and be sued agencies doesn't protect sue and be sued agencies from claims that involve the exceptions within twenty six eighty and so by his own argument the postal sobber the postal service because because if it's faced with a claim involving the negligent transmission of mail the postal stop service would not be able to take advantage of twenty six seventy nine is protections i think the court might want to look to the first circuit's decision in the davray case were to address this issue it rejected respondents shall not apply argument and it said that it would lead to results that congress could not have conceivably intended and we agree with that the second point i'd like to make is just about the the purpose of the  that congress very clearly wanted to give victims the choice between suing the government and suing the responsible employee directly but it didn't want to force the government to litigate over the same facts twice that purpose is squarely implicated it's not superfluous the judgment is not super books under modern rules because even today if the government has to defend indirectly against a begins action and also has to defend against an f t c action the same concerns about alleviating the burdensome disruptions  typically stepping in to conduct the defense of employees sued under state torts so for all of these reasons your honor we ask you to restore the bargain at the heart of the original f t c say that we ask you to enforce the judgment bar and we ask you to reverse the decision below thank you counsel the case is submitted