court entered the judgment in an action under section one thousand three hundred and forty six dollars b so that judgment constitutes a complete bar to any action by respondent against the federal employees involved in his f t c a claim that fraud tax on ambiguously precludes respondents circuits reasoning cannot be reconciled with statement so we shift to an alternative argument he says he should be able to bring an f t c action and an individual action together without the judgment bar coming into play but the statutory tax directly refutes that argument to where it's common law or a student caught i made a judgment precluded of coke in a subsequent action congress in the judgment bar expressly departed from that rule and prohibited any individual action following an act you see a judgment that's because congress houston i want to ask you about your your last point as you read the statute the disposition of an f t c a claim bars bivins claims against the employee but of course the statute speaks of actions not not claims and it was was and is very well established that there is no bar with respect to claims in the same action  if congress were going to make such a dramatic departure from that will the obvious word to use is right there it's claims and yet they they didn't do that if i might make two points about that your honor the st is that as i just said you are right that the common law rule was that a judgment in a subsequent action is precludes them but i think you can see that congress made ex exactly the type of express departure from the know i don't know that that's the clearest way they could go about it the clearest way to go about it would say the claim it would be a complete bar to any claim that is is raised as opposed to  you know any subsequent action that's where the real departure is and it seems to me that that's a much more direct way to eliminate any confusion that simply leading you know the subsequent in that think if you put the common law the classic canonical formulation of race to the kata side by side with this statue the key difference you see is the deletion of the word subsequent and the replacement with the word any so i think it's not surprising that  directly the congress has purpose because from the standpoint of preventing duplicative litigation against the federal employees it makes absolutely no difference whether the duplicative individual action is filed together in the same lawsuit with the p c a action or argument that's been developed in his brief in this court so you're stuck to your question about why we i think the text makes clear that that's not allowed in addition to the point i was just making to the chief justice about the way in which congress expressly departed from the common law i changing in the formulation i think the implications of respondents position are striking and the reason why every single court of appeals has rejected respondents argument in the seventy years since the judgment bar with an act that is that his argument would permit him actually to litigate under the f t c and prevail to win a judgment against the united state and then speak additional damages against the government employees for example punitive damages just because he brought the actions together in the same lawsuit but we know from this court's decision in gilman that that result is precisely what congress created the judgment bar to avoid and that's because the policy of the judgment bar is one of proposed congress found that lawsuits against the government therefore the judgment bar would no longer apply but allow the judgment entered by the district court is in force and of course in this case that judgment is final that judgment by the plane tax is a complete bar to any individual action against the federal employees  is a piece of paper normally that the district judge files at the end of a lawsuit and it says judgment and it tells you how the is going to lose on this claim is going to lose on this claim maybe a win on this claim isn't the very end of the thing we have a judgment is that how it works yes your honor i think that the description of the word judgment is right but that is exactly the judgment that the district court farm on that alternative ground and what would you say as to why we should not exercise that discretion because your honor that this court has held repeatedly in interpret in the f t c i that the tax means what it says and in particular the word any really does mean any no exceptions those are the core lessons of the court's decisions in finance and we in  ali and in smith and so i think that all the court house to do is say that the language of this statute is intentionally an exceptionally broad congress impose a complete bar to any individual action and that precludes asking a preliminary question why should we even get to that here we grant it sir to decide a particular question which has to do with the effect of a final judgment why should  most of the time we answer the question on which we go we grant review and not some other question so vast my question this that's what i'm asking you why should we depart from our normal practice of just every single one of them has rejected the argument that respondent now makes that he is entitled to litigate under the f e c a prevail and then continue suing the government simply so i think your honor is exactly right that the reason why you should not exercise  to consider this argument is because it simply doesn't warrant the court's true view the only court of appeals that this has even come close to accepting respondents argument is the th circuit and the only way that it did that was by building in a rule that the judgment bar depends on which side wins and that have started let me try to ask one question about a question on which we do grant review in your in your view what is the dividing line between a claim questions as this court described and in my are the question whether the united states has waived sovereign immunity for a particular type of legal demand for relief analytically distinct from the question whether the plaintiff can prevail on the  needed in diversity that is demand for relief was worth more than seventy five thousand dollars and then it turns out later that he actually has no claim at all in summary judgment everyone understands but that is a dismissal on the merits of the claim that triggers sotomayor counts so i am a little confused and perhaps your adversary will unconfuse me but i don't think every circuit has held that a shame suit claims of an f t c a and of events claims means that you can't appeal them i thought at least in one circuit has said so all of the other circuits i agree with you have said that if you lose a f t c and claim you can't file the separate claim that's not the issue it's the same claim but your adversary can tell me what the circuit split is on that question however i am going to go back to what justice alito raised you brought the search petition i believe that your adversary in its i believe i know in its response not lanes but it didn't mention this as an alternative route enough to grant cert that he could bring the two claims in the same action and not be precluded and i think the same argument was raised below and i correct well i certainly agree with your honor that the respondent raised the argument as an alternative ground in the brief in opposition to the argument again in the lower courts and that in the court of appeals the argue the respond constitute a complete really release of any claim against the united states and against the employee of the government seems to me that congress knew how to say that there was a big difference between a release of a claim rather than a bargeman action so why should we accept your argument that they meant the same thing when they use different language in two different sections judgment in an action under section thirty one so i'm almost out of time so let me just ask you one last question as a matter of policy why would congress have wanted to go around the common bins claims because the purpose of the judgment bar your honor is repose congress wanted the judgment in the f c c action to bring repose to the entire controversy to your question specifically about it and i think this court addressed that issue i just a point of clarification st as to the extent of your argument there are courts in the th and the th circuit that has said that the judgment bar can and do even prior final judgments on vivants claims so short of retroactively undo a binge judgment is do you think that's right i think it's possible your honor because it would be consistent with the goal of the judgment bar to wrap up the entire resolution o the claim into the judgment on the out p ca auction now i would also understand the contrary argument that when the judgment has been entered in the individual action there is no more individual action or the judgment bar to your understanding of this provision makes an into something that the language suggests it's not so if i understand your position correctly it really turning this into an election and remedies commission another really think that your honor has it exactly right that the purpose of this statute was to offer plaintiffs in respondents position a choice they could either stick with the traditional individual cause of action they weren't foreclosed from that but as the courts often said we're a court of review not of her c e o and there are obviously important exceptions that principle but not sure this case really cries out for us to depart from the general principle so why don't we resolve the question presented as presented in the service attention i think was justice really does question and that's sufficient under the day and we can worry about the other issue when and if we need to address  justice cavanagh i think that is exactly what the court should do and the reason why that would be appropriate in this case is that the alternative argument raised by the respondent would not warrant its court's review as i mentioned every court in appeal  th circuit's rule is that whether or not the judgment bar is triggered depends on who wins in the f c c action and simmons was absolutely clear that that is not how the judgment bar works which of course the courts with the statutory text so i really don't i just i think the court should not address the question there's no need to because it's not cert worthy we addressed it in our brief because it was raised and we wanted the court to have all the arguments but i think that's a perfectly sensible way to resolve the case we do resolve that question going to reiterate questions asked by others now but the key problem for you is it says any action not any clients is one to summarize your best arguments in response to that thank you justice gotten i guess again the term action for relief by the plaintiff underbid it and that is just the plain text of that understanding means that there isn't there is no room for an exception for that that would make preclusion applicable only in a subsequent action and i just think it's particularly clear that congress didn't want that subsequent action limitation because that was in every description of the common law and congress changed that formulation expressly thank house i want to ask you a question about the question on which we granted cert the government make a mistake and moving moving from dismissal under rule twelve b one for lack of jurisdiction as opposed to for judgment on the  jurisdiction to resolve civil actions against the government on the bases that's listed in the statute and it seems to me that that means that the government is that meddling as a sovereign to the district court resolution of those claims i don't weigh whether they win or not so it's different than saying them in where the district court does not have jurisdiction to resolve claims if they involve misconduct and the exercise of a discretionary function so why  explained it is only the entry of judgment that triggers a judgment bar and that's why the judgment are was triggered in this case when the district court entered the final judgment at the end of the case respondent simply chose for his own reasons not to appeal the decision below would permit a plaintiff to bring a lawsuit against the united states litigated all the way through summary judgment loose on the ground that the government employees did not do what was alleged to them and then turn around and pursue claims against the same employees using the fame factual allegation that result makes little sense and it is directly at odds with congress's objective for the judgment bar which was to prevent duplicative litigation against the government employees after an f t c a judgment congress rule in the judgment bar was straightforward constitutional claims in this action which is the one and only lawsuit king has ever file mister jackson well your theory really would combine the merits of jurisdiction not just in a case like this but in every case i mean if you think you have a claim under a federal question statute if it turns out you don't then you would say ok well then there wasn't jurisdiction because i didn't satisfy the elements of the statute that gave rise to a federal federal question jurisdiction against the united states that they're treated the same you can you can't even the words whenever you lose you don't lose because the court has under your theory would have had no jurisdiction and that doesn't so well i guess i don't really understand i think under your view a favorable decision for the government would never satisfy the elements of the judgment bar because of dollars if you read it says the judgment in any action show constituted complete bar to any government claimant against the employee of the government that's the point of the statute  united states don't sue the employee but if you're right what you could do as a plaintiffs is to sue under the statute against the government you win and then you go the employee or the government and then you go to the employee well i think if there was one thing the statute was passed off it was that it was that the united states should take the liability and the point i'm not interested in exactly how you do it short if you can get claim one we sue the government with some money claim to employee you're involved in this lawsuit to give us some money ok that's what i'm worried that your argument here would lead to and point what you've said so far you say that's just what it would lead to and that's a good thing  you could do this and you're saying congress did not want to stop all the cobr use against the employee yes it ok that seriously thank you very much most of the government's argument your alternative argument i call the same case argument there can you do it justice kavanagh i asked this question earlier and i posed the decide this question now yes your honor of our policy why should we do that meaning talk to us to decide whether to take to address a grounds not decided the government will be an enormous increase in litigation and because the government has adopted is peculiar election of remedies it's not really an election of remedy that litigation will be infinitely more complex and dangerous will be obligated to make it complex to ensure that the f e c a portion or separate action never to counsel i i do have some practical difficulties with the government's position on the same action meaning don't put a bargain like the one that justice kagan referred to earlier that seems somewhat time confute consuming it also makes a difference whether a district court decides whether it's going to decide the business claims st and just say i don't need to decide the f t c a claims or try both claims together when both the good judgment o that would be a good thing to do so why shouldn't we the provision that way yes your honor i don't dispute that you could make a policy argument for why the congress should create an exclusive or an election of remedy but the reason this court shouldn't read it that way because not an election of remedy used in the t c a and has continued to say that every time it had the opportunity over the last seventy years and if you would just to look at the language of the provision what would you say about the language of the provision with respect to this question that your honor so this goes back to the distinction between an action and any action and it would you simply a situation where someone had a coupon to go to a grocery store that says if you buy a case of pot or soda as people might call it you get any cage free of course if a reasonable person would not understand that combined to mean the st case was free you have to buy the st case the government is in this case in this situation asking the court to say that who there doesn't appear to be any simultaneously pending action under the f t c at this point yes your honor so the distinction is still the concept of actions versus claims so even when an action that has a multiple claim the the failure o yes you're right it just goes back to the linguistic distinction between action and any action and i'll also point out that a number of courts before the next one of judgment bar had used the phrase complete bar to any action to mean raise  subsequent i guess i'm trying to get at is we have the judgment in an action under the f t c and that would seem to bar any other action like events later and your way around that is to thank you good afternoon mister giacomo i want to raise the point as bothering me about what we should decide and i don't blame you for raising the alternative argument i understand that you're trying to win the case but i'm trying to think of why we should consider that we obviously discuss very carefully our decisions to grant cert shorey on particular cases in particular issues within that cave and we don't usually decide things that weren't decided by the court below and there are exceptions to that and no doubt about that and you and i don't think this is unvetted within the way you said and sometimes we'll do it if it's really really simple and it will be helpful just to go ahead and resolve it but i'm not sure as is really simple either because we get to the merits least not very simple in your direction because if we get to the merits of that alternative argument every court of appeal save one has ruled against you in the taxes of any action on any subsequent action so here i think the existence of all the other circuit court decisions which as i mentioned although they somehow agree on this same claims point they do so in very different way illustrate that there is an enormous amount of confusion it is very simply clear up and  peals have ruled against your position on this issue in many different ways and i don't see how that makes it easier to clear that up that just means there are lots of routes that courts of appeals have fought that lead to the opposite council i want to make sure that i understand your position on the nature of this judgement and whether it's on the merits or can be a bargain is that your position and i thought i heard you say this earlier maybe it was in response to the chief justice that judgment in your view then is that a judgment that even if the united states when can then be a bar i think it depends your honor i think because the court is required to assess its own jurisdiction that important i just airily have to decide certainly and sovereign immunity ok let me ask you a question about this like an alternative argument that you've made let's say that year when you bring up events claims st and you lose and then you bring an f p p a claim against the united jurisdiction it should not now be allowed to come to this court and say jurisdiction and marriage are the same and marriage should therefore prevail because as right in miller and there are three states made in many other places that at any time jurisdictions surest way to know respondents main argument on the question presented is incorrect is that it forces my friend into the extraordinary conclusion that the judgment bar is not triggered by a judgment in favor of the united states on the  abrogated by symonds the court should not leave in place the th circuits rather obvious mistake in interpretation of the judgment bar and instead decide the case in favor of respondent on an alternative grounds that no other court has accepted and even the end even if and in every if the court were inclined to reach the alternative question we think the text is on ambiguous in our favor congress would have looked at a lawsuit like this one and said respondent has an action under section exactly the common law rule that congress expressly changed in the seventy years since the judge of ours an act that the courts of appeals have overwhelmingly rejected this argument and that's because as justice brier recognized it's directly conflicts with congress  perfect congress is the rule that responded advocates would permit a plaintiff to sue the united states and win and then pursue continue pursuing an individual government employees for additional relief just because he brought his two actions together in the same lawsuit that is exactly the result that congress created the judgment bar to prevent as this court explained and gilman for all those reasons the judgment should be reversed thank you thank you counsel of the cases