RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0219p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES KING,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA, et al.

Defendants,

DOUGLAS BROWNBACK; TODD ALLEN,

Defendants-Appellees.

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No. 17-2101

On Remand from the United States Supreme Court.

United States District Court for the Western District of Michigan at Grand Rapids.

No. 1:16-cv-00343—Janet T. Neff, District Judge.

Decided and Filed: September 21, 2022

Before: BOGGS, CLAY, and ROGERS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Patrick Jaicomo, Anya Bidwell, Keith Neely, INSTITUTE FOR JUSTICE, 

Arlington, Virginia, D. Andrew Portinga, MILLER JOHNSON, Grand Rapids, Michigan, for 

Appellant. Michael Shih, Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Appellees.

ROGERS, J., delivered the opinion of the court in which BOGGS, J., joined. CLAY, J. 

(pp. 6–14), delivered a separate dissenting opinion.

>
No. 17-2101 King v. United States, et al. Page 2

_________________

OPINION

_________________

ROGERS, Circuit Judge. This case dealing with the Federal Tort Claims Act (FTCA) 

judgment bar is on remand from the Supreme Court, and we must determine whether our 

published holding in Harris v. United States, 422 F.3d 322 (6th Cir. 2005), should be overruled 

based on language in three subsequent Supreme Court cases. We squarely held in Harris that the 

FTCA judgment bar applies to other claims brought in the same action, including claims brought 

under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 

(1971). Harris has not been overruled by later precedent and, as a binding decision of this court, 

requires that we affirm the district court’s dismissal of the plaintiff’s remaining claims. 

This case arises from plaintiff James King’s erroneous apprehension by plainclothes FBI 

task force members in July 2014. See King v. United States, 917 F.3d 409, 416-18 (6th Cir. 

2019). Defendants Allen and Brownback were searching for a felony home invasion suspect, 

relying on photographs of the suspect, a physical description, and the knowledge that the suspect 

bought a soft drink from a specific gas station every afternoon. King, who was a college student 

at the time, was walking in the area near the specific gas station in the afternoon when Allen and 

Brownback approached him. The parties dispute whether the defendants identified themselves 

as law enforcement. King initially answered the defendants’ questions about his identity and 

complied with their order to put his hands on his head, and Allen removed a pocketknife and 

wallet from King’s pocket. King, who thought he was being mugged, tried to run away, but 

Allen tackled him and put him in a chokehold. King claims he briefly lost consciousness, and 

when he came to, he fought with Allen for over sixty seconds. King bit Allen’s arm, and Allen 

repeatedly punched King on his face and head. A witness who called 911 said that Allen and 

Brownback were going to “kill this man” and that “they’re suffocating him.” Defendant Morris 

responded to the scene and told bystanders to delete their videos of the fight. Prosecutors later 

charged King, and a jury acquitted him on all counts.

King filed suit in federal district court, asserting a Bivens claim against Allen and 

Brownback for violation of King’s Fourth Amendment rights, a 42 U.S.C. § 1983 claim against 
No. 17-2101 King v. United States, et al. Page 3

Allen, Brownback, and Morris based on Fourth Amendment violations, and an FTCA claim 

against the United States. The district court granted the defendants’ motion to dismiss all claims 

on the merits, and did not address the FTCA judgment bar, which provides that “[t]he judgment 

in an action under [the FTCA] 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. King appealed. We held that the FTCA 

judgment bar did not preclude King’s Bivens claim “because the district court lacked subjectmatter jurisdiction over Plaintiff’s FTCA claim,” so the FTCA claim was not resolved on the 

merits and the judgment bar was not triggered. King, 917 F.3d at 419. We proceeded to hold 

that the defendants were not entitled to qualified immunity on the Bivens claim. Id. at 422. 

The United States appealed, and the Supreme Court reversed. The Court held that the 

district court’s order dismissing King’s FTCA claim “also went to the merits of the claim and 

thus could trigger the judgment bar.” Brownback v. King, 141 S. Ct. 740, 745 (2021). The Court 

noted the parties’ mutual understanding that the judgment on the FTCA claim “must have been a 

final judgment on the merits to trigger the [judgment] bar.” Id. at 747. Because the district 

court’s order “hinged” on whether King could establish the elements of an FTCA claim, the 

court reasoned, the order was on the merits for purposes of the judgment bar. See id. at 748. The 

Court concluded that its analysis did not change based on the fact that the elements of an FTCA 

claim also establish whether a district court has subject-matter jurisdiction over that claim. See 

id. at 749. The Court stated that “where, as here, pleading a claim and pleading jurisdiction 

entirely overlap, a ruling that the court lacks subject-matter jurisdiction may simultaneously be a 

judgment on the merits that triggers the judgment bar.” Id. 

At issue here is a footnote in the opinion that discussed how we should proceed on 

remand. The Court noted that King had argued “that the judgment bar does not apply to a 

dismissal of claims raised in the same lawsuit.” Id. at 747 n.4. But because we had not 

addressed that argument, the Court declined to address it as well. The Court stated “[w]e leave it 

to the Sixth Circuit to address King’s alternative arguments on remand.” On remand, we 

requested supplemental briefing from the parties on whether the FTCA judgment bar applies to 

claims in the same lawsuit, which would require the dismissal of King’s remaining Bivens claim. 
No. 17-2101 King v. United States, et al. Page 4

Our previous decision in Harris compels our affirmance of the district court’s dismissal 

of King’s remaining claims. As here, the plaintiff in Harris argued that “the judgment bar does 

not apply where plaintiff has from the outset alleged his Bivens claims and sought a jury trial in 

the same lawsuit alleging FTCA causes of action.” Harris, 422 F.3d at 334 (internal quotation 

omitted). We discussed the caselaw, FTCA statutory history, and equitable principles and 

proceeded to hold squarely that the FTCA judgment bar applies to other claims brought in the 

same lawsuit. Id. at 334-37. King does not argue that Harris is distinguishable on its facts, that 

the analysis in Harris was dictum rather than holding, that Harris was somehow inconsistent 

with previous precedent, or that we are somehow freed from treating our precedent as binding by 

the fact this case is on remand from the Supreme Court. Instead, King argues solely that three 

intervening Supreme Court cases warrant our overruling Harris. But the language in those three 

cases is not directly applicable to the issue in this case, as the United States pointed out, and 

King’s reply brief did not further address the issue.

The three Supreme Court cases cited by plaintiff are Simmons v. Himmelreich, 578 U.S. 

621 (2016), Will v. Hallock, 546 U.S. 345 (2006), and Brownback, but none of those cases can be 

considered as having overruled our decision in Harris. First, Brownback is this very case, and 

nothing in the Court’s opinion can be understood to indicate that the judgment bar cannot apply 

to claims in the same action. Instead, the Court explicitly left the question open for us to address 

on remand, see 141 S. Ct. at 747 n.4, which it would have been unlikely to have done if it 

thought its precedent clearly answered the question. 

Second, although Simmons’s holding took policies into account that could arguably 

support not applying the FTCA judgment bar, the Court was at pains to distinguish cases that are 

closer to this one than is Simmons. See 578 U.S. at 629-30. The issue in Simmons was whether 

the FTCA judgment bar applies to claims that are explicitly exempted from the FTCA due to 

their inclusion in the “Exceptions” section of the statute, 28 U.S.C. § 2680. Id. at 623, 626. The 

Court focused on the plain text of the “Exceptions” section and held that the judgment bar did 

not apply. See id. at 627. Unlike Simmons, this case did not involve dismissal under one of the 

exceptions in § 2680. It is true that the Court noted the “strange result” that would occur if “the 

viability of a plaintiff’s meritorious suit . . . should turn on the order in which the suits are 
No. 17-2101 King v. United States, et al. Page 5

filed.” Id. at 630-31. The Court reasoned that a dismissal under one of the § 2680 exceptions 

had “no logical bearing on whether an employee can be held liable instead” of the Government, 

but explicitly distinguished other types of cases, like this one, in which the plaintiff otherwise 

failed to prove his claim. Id. at 629-30. The Court stated that if the district court had dismissed 

the FTCA claim on the merits, “it would make little sense to give [the plaintiff] a second bite at 

the money-damages apple by allowing suit against the employees: [the plaintiff]’s first suit 

would have given him a fair chance to recover damages for his beating.” Id. The Simmons

decision thus cannot be read to overrule our holding in Harris, where Simmons applied only to 

the “Exceptions” provision of the FTCA and explicitly distinguished cases such as this one in 

which the FTCA claim is adjudicated on the merits.

Finally, Will also does not call into question our Harris decision, because the Court in 

Will rejected the doctrinally distinct jurisdictional argument that a district court’s rejection of the 

judgment bar was immediately appealable under the collateral-order doctrine. See 546 U.S. at 

355. In distinguishing the judgment bar from qualified immunity with respect to interlocutory 

appealability, the Court indeed noted that “the judgment bar can be raised only after a case under 

the Tort Claims Act has been resolved in the Government’s favor,” id. at 354, but that is true 

regardless of whether or not both claims have been litigated in the same action.

For the foregoing reasons, we affirm the judgment of the district court. 
No. 17-2101 King v. United States, et al. Page 6

_________________

DISSENT

_________________

CLAY, Circuit Judge, dissenting. Plaintiff James Lee King was walking to his summer 

job when two strangers brutally attacked him. The two individuals attacked King so violently 

that onlookers thought King would die. Unfortunately for King, he found out after the fact that 

his attackers—Todd Allen and Douglas Brownback (collectively “Defendants”)—were federal 

law enforcement officers. Allen and Brownback were allegedly searching for someone whose 

description they thought matched King’s, but they never identified themselves to King as federal 

agents.

King filed the present action alleging Fourth Amendment violations arising under 

42 U.S.C. § 1983 or, alternatively, under the implied right of action set forth in Bivens v. Six 

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The district court granted summary 

judgment on these claims in favor of Defendants. The district court also dismissed King’s claim 

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, for lacking subject matter 

jurisdiction. On appeal, King only challenged whether the district court erred in granting 

summary judgment on his Bivens claim; he did not appeal the dismissal of his FTCA claim. We 

reversed the grant of summary judgment. In the process, we held that the dismissal of King’s 

FTCA claim for lack of subject matter jurisdiction was not on the merits, and therefore, the 

FTCA’s judgment bar did not apply. The Supreme Court reversed and remanded the case back 

to the Sixth Circuit. In doing so, it held that dismissal of the FTCA claim for lack of subject 

matter jurisdiction could be sufficient to invoke the judgment bar; but the Court specifically left 

unanswered the question of whether the FTCA’s judgment bar may apply to claims brought in 

the same action.

We must now decide whether the dismissal of King’s FTCA claim bars further 

proceedings on his contemporaneously filed Bivens claim. In Harris v. United States, 422 F.3d 

322 (6th Cir. 2005), we held that the judgment bar can be used to bar claims raised in the same 

suit. However, Harris is now inconsistent with intervening Supreme Court precedent. 
No. 17-2101 King v. United States, et al. Page 7

Accordingly, for the reasons set forth below, I would reverse and remand the case for further 

proceedings. Because the majority does otherwise, I dissent.

I. BACKGROUND

Factual Background

On July 18, 2014, Defendants Todd Allen and Douglas Brownback were searching for a 

criminal suspect named Aaron Davison. Police believed that Davison had committed felony 

home invasion, and the State of Michigan had issued a warrant for his arrest. Defendants were 

members of a “joint fugitive task force between the FBI and the City of Grand Rapids.” Officer 

Allen was a detective with the Grand Rapids Police who had been assigned to work full time on 

the FBI task force. Officer Brownback was a special agent with the FBI. Both officers were 

out of uniform and in civilian clothes as they conducted their search, but they were both wearing 

lanyards with their badges displayed over their plainclothes.

Defendants had a description of Aaron Davison to aid them in their search. They had 

been told that Davison was a 26-year-old white male between 5ʹ10′′ and 6ʹ3′′ tall with glasses; 

short, dark hair; and a thin build. Defendants also knew that Davison had a habit of buying a soft 

drink from a particular gas station every day between 2:00 p.m. and 4:00 p.m. And Defendants 

had two photographs of Davison. In the first photograph, the lighting was so dark that Davison 

appeared as the silhouette of a man playing electric guitar. The second photograph, a driver’s 

license photo, showed Davison’s face clearly, but the photo was seven years old at the time of 

the search.

Around 2:30 p.m., Defendants saw Plaintiff walking down the street in an area near the 

gas station where Davison was known to buy his daily soft drinks. Although Plaintiff was 

merely a 21-year-old college student who was walking between his two summer jobs, 

Defendants decided that Plaintiff might be their suspect because Plaintiff was a young white 

male between 5ʹ10′′ and 6ʹ3′′ and was wearing glasses. From their unmarked vehicle, Defendants 

studied Plaintiff’s face and decided that there was a “good possibility” that he was indeed 

Davison. Defendants parked near Plaintiff and approached him. The parties dispute whether 

Defendants identified themselves as law enforcement officers.
No. 17-2101 King v. United States, et al. Page 8

Defendants started asking Plaintiff questions. They asked Plaintiff who he was, and 

Plaintiff truthfully answered that his name was James. Defendants then asked Plaintiff for 

identification, and Plaintiff said that he had none. Defendants told Plaintiff to put his hands on 

his head and to face their vehicle. Plaintiff later testified that he complied because Defendants 

“had small badges around their chest, and [he] assumed [Defendants had] some sort of 

authority.” Defendants asked Plaintiff if he was carrying any weapons, and Plaintiff told them 

that he had a pocketknife. Officer Allen removed the pocketknife from Plaintiff’s pocket, 

commented on the size of Plaintiff’s wallet, and then removed that, too, from Plaintiff’s pocket. 

Plaintiff asked, “Are you mugging me?” and attempted to run away, but Officer Allen tackled 

him to the ground, grabbed Plaintiff’s neck, and pushed him to the ground. Plaintiff then yelled 

for help and begged passersby to call the police. Officer Allen then put Plaintiff in a chokehold, 

at which point Plaintiff says that he lost consciousness. Several seconds later, when Plaintiff 

came to, he bit into Officer Allen’s arm. Officer Allen then started punching Plaintiff in the head 

and face “as hard as [he] could, as fast as [he] could, and as many times as [he] could.” Plaintiff 

variously attempted to escape and to fight back, eventually releasing his bite, but he could not get 

away; the fight continued for over sixty seconds.

As Officer Allen continued to punch Plaintiff in the head and face, several bystanders 

called the police and began filming the incident. Numerous police officers arrived on the scene, 

one of whom ordered the bystanders to delete their videos on the purported basis that the videos 

could reveal the identities of undercover FBI agents. Some of the bystanders deleted their 

videos, and footage of the actual altercation was never recovered. The surviving footage from 

immediately after the incident includes one bystander who can be heard saying, “I was worried. 

. . . They were out of control pounding him. . . . They were pounding his fa--head for no reason; 

they were being brutal.” (Ex. 6, Timestamp 0:47–1:11.) In a bystander’s call to 911, she tells 

the operator, “They’re gonna kill this man. . . . We can’t see the victim now. They’re over top of 

him. They look like they’re suffocating him. . . . I understand they have badges on, but I don’t 

see no undercover police cars, no other—backup, no nothing.” (Ex. 18, Timestamp 1:43–3:21.)

Plaintiff was transported from the scene to the hospital emergency room, where he 

received medical treatment. The emergency room doctors concluded that Plaintiff’s injuries did 
No. 17-2101 King v. United States, et al. Page 9

not require him to be admitted for further treatment, and they released him with a prescription for 

painkillers. Upon Plaintiff’s discharge, police arrested him and took him to Kent County Jail. 

Plaintiff spent the weekend in jail before posting bail and visiting another hospital for further 

examination. Prosecutors pursued charges against Plaintiff for, among other charges, resisting 

arrest. A jury acquitted him of all charges.

Procedural Background

On April 4, 2016, Plaintiff brought this suit against Defendants. Relevant to this appeal, 

King alleged under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), that 

Defendants violated his clearly established Fourth Amendment rights by conducting an 

unreasonable seizure and by using excessive force. Plaintiff also asserted a claim against the

United States under the Federal Torts Claim Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2674. The 

district court found that it lacked subject matter jurisdiction to hear Plaintiff’s claim against the 

United States, and it granted summary judgment for Defendants on the basis that Defendants are 

entitled to qualified immunity. Plaintiff then appealed only the grant of summary judgment on 

his Bivens claim; he did not appeal the dismissal of his FTCA claim.

On appeal, we reversed the district court. We first held that dismissal of King’s FTCA 

claim for lack of subject matter jurisdiction was proper. To proceed with an FTCA claim, a 

plaintiff must satisfy six elements. One such element is that the defendants acted tortiously and 

could be liable. However, we found that under Michigan law, Defendants would be entitled to 

qualified immunity. Accordingly, King failed to state a claim for which relief could be granted, 

which, by extension, deprived federal courts from exercising jurisdiction over King’s FTCA 

claim. Without jurisdiction over his FTCA claim, we held the dismissal of such claim did not 

amount to a judgment that could give rise to the FTCA’s judgment bar. We went on to hold that 

the district court improperly granted summary judgment on King’s Bivens claim.

The Supreme Court granted certiorari and reversed. It held that a dismissal for lack of 

jurisdiction constituted a judgment for purposes of the FTCA judgment bar. Thus, a dismissal 

of an FTCA claim for lack of subject matter jurisdiction “could” preclude further claims. 

However, because the Sixth Circuit had not addressed whether the judgment bar applies to 
No. 17-2101 King v. United States, et al. Page 10

claims raised in the same action, the Supreme Court expressly declined to decide whether King’s 

Bivens claim could proceed. The Court remanded King’s case back to the Sixth Circuit to 

answer the limited question of whether the FTCA’s judgment bar can be used to preclude claims 

raised in the same lawsuit.

II. DISCUSSION

Standard of Review

We review the application of the FTCA judgment bar de novo. See United States v. 

Kuehne, 547 F.3d 667, 678 (6th Cir. 2008) (“Because this issue is a matter of statutory 

interpretation, we conduct de novo review.” (quoting United States v. VanHoose, 437 F.3d 497, 

501 (6th Cir. 2006)); accord Manning v. United States, 546 F.3d 430, 432 (7th Cir. 2008) 

(reviewing application of FTCA judgment bar de novo).

Analysis

The FTCA provides a limited waiver of federal sovereign immunity, creating jurisdiction 

for courts to hold the United States liable for certain torts committed by federal employees. 28 

U.S.C. §§ 1346(b), 2671–80. The FTCA also contains a judgment bar, which precludes a 

plaintiff from bringing additional claims concerning the same subject matter as an FTCA claim 

after judgment is entered on the FTCA claim. § 2676. Section 2676 states in full: “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.” Pursuant to the Supreme Court’s 

opinion in this case, a judgment has been entered on King’s FTCA claim. Brownback v. King, 

141 S. Ct. 740, 745 (2021). The question before this Court is simply whether the judgment bar 

applies to King’s Bivens claim.

Defendants, and the majority, rely primarily on Harris v. United States, 422 F.3d 322 

(6th Cir. 2005), to argue that the preclusive effect of the judgment bar applies to claims raised in 

the same suit. (See generally Appellees’ Br. 13–22.) In Harris, plaintiff Ronnie Harris 

commenced an action against the United States and four federal agents under the FTCA and 
No. 17-2101 King v. United States, et al. Page 11

Bivens, respectively, for conduct stemming from his arrest and prosecution at the Cleveland 

airport. The district court “dismissed the Bivens claims against all four individual defendants 

because they had been filed” improperly, but proceeded to enter a judgment for the United States 

following a bench trial on Harris’ FTCA claim. Harris, 422 F.3d at 326. On appeal, Harris 

argued that the dismissal of his Bivens claims was erroneous. Although the Sixth Circuit agreed 

that the claims were wrongfully dismissed, reversal was not warranted. We held that “[e]ven 

though the district court incorrectly dismissed Harris’ Bivens claims, we do not reinstate them 

because they are barred by the court’s adjudication of his FTCA claims.” Id. at 333. We went 

on to reject Harris’ argument “that the judgment bar does not apply where plaintiff has from the 

outset alleged his Bivens claims and sought a jury trial in the same lawsuit alleging FTCA causes 

of action.” Id. at 334 (citation omitted); see also Serra v. Pichardo, 786 F.2d 237, 241 (6th Cir. 

1986) (“[I]t is inconsequential that the [FTCA and Bivens] claims were tried together in the same 

suit and that the judgments were entered simultaneously.”).

While Harris seems to squarely address the issue presented in this case, it is controlling 

only to the extent that its holding is not inconsistent with subsequent Supreme Court precedent. 

Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009) (“A published prior panel 

decision ‘remains controlling authority unless an inconsistent decision of the United States 

Supreme Court requires modification of the decision or this Court sitting en banc overrules the 

prior decision.’” (quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.

1985))). King argues that three cases since Harris are inconsistent with Harris’ holding that the 

judgment bar applies to claims within the same suit.

The first case on which King relies is Will v. Hallock, 546 U.S. 345 (2006). In Will, the 

Supreme Court confronted the question of whether a district court’s rejection of the judgment bar 

as a defense was immediately appealable under the collateral order doctrine. The plaintiffs first 

sued the United States under the FTCA for a seizure of property that effectively forced them out 

of business. Will, 546 U.S. at 348. While the FTCA case was pending, the plaintiffs initiated a 

Bivens suit against the federal employees; and after the plaintiffs’ action against the United 

States was dismissed, the employee-defendants moved to dismiss the Bivens action pursuant to 

the judgment bar. Hallock v. Bonner, 281 F. Supp. 2d 425, 426 (N.D.N.Y. 2003). The district 
No. 17-2101 King v. United States, et al. Page 12

court denied the motion to apply the judgment bar, and the federal employees appealed. The 

Supreme Court determined that application of the judgment bar was not subject to the collateral 

order doctrine, like a denial of qualified immunity, because of what it described as “the bar’s 

essential procedural element.” Will, 546 U.S. at 353. “The closer analogy to the judgment bar, 

then, is not immunity but the defense of claim preclusion or res judicata.” Id. Although 

recognizing that “the statutory judgment bar is arguably broader than traditional res judicata, it 

functions in much the same way,” and that the concern behind both is avoiding “duplicative 

litigation.” Id. Critically, the Supreme Court held that “there will be no possibility of a 

judgment bar . . . so long as a Bivens action against officials and a Tort Claims Act against the 

Government are pending simultaneously (as they were for a time here).” Id. Kings’ FTCA 

claim and Bivens claims were pending simultaneously.

The second case on which King relies on is Simmons v. Himmelreich, 578 U.S. 621 

(2016). The issue presented in that case was whether the “Exceptions” section of the FTCA 

applied to the judgment bar. In the course of answering this question, the Supreme Court 

reiterated its sentiment from Will that the judgment bar is “analog[ous] to the common-law 

doctrine of claim preclusion, which prevents duplicative litigation by barring one party from 

again suing the other over the same underlying facts.” Id. at 630 n.5. The Court noted that 

“[t]he judgment bar provision supplements common-law claim preclusion by closing a narrow 

gap: 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.” Id. 

(emphasis added). Additionally, the Court was careful to interpret the judgment bar in such a 

way as to avoid the prospect of the “strange result” that would occur if “the viability of a 

plaintiff’s meritorious suit against an individual employee [w]ould turn on . . . the order in which 

the district court chooses to address motions[].” Id. at 630–31.

Finally, King relies on Brownback—the Supreme Court’s opinion in this case. Again, the 

Court reiterated that the judgment bar “functions in much the same way as [the common law 

doctrine of claim preclusion].” Brownback, 141 S. Ct. at 747 (alteration in original). 

Importantly, after years of stating the judgment bar functions the same as claim preclusion, the 

Court noted that “[c]laim preclusion prevents parties from relitigating the same ‘claim’ or ‘cause 
No. 17-2101 King v. United States, et al. Page 13

of action,’ even if certain issues were not litigated in the prior action. Suits involve the same 

‘claim’ or ‘cause of action’ if the later suit ‘arises from the same transaction’ or involves a 

‘common nucleus of operative facts.’” Id. at 747 n.3 (cleaned up) (emphasis added).

Reading Will, Simmons, and Brownback together leads to the unmistakable conclusion 

that the FTCA’s judgment bar should be applied as would common law claim preclusion 

accounting for the fact that it closes the above-mentioned “narrow gap,” which is not implicated

in this case. At common law, claim preclusion “is not appropriate within a single lawsuit so long 

as it continues to be managed as a single action. Failure to advance all parts of a single claim, or 

surrender of some part of a single claim as the action progresses, do not defeat the right to pursue 

the parts that are advanced.” 18 Wright & Miller, Fed. Prac. & Proc. Juris § 4401 (3d ed. 2016); 

see also 18 Wright & Miller, Fed. Prac. & Proc. Juris § 4404 (3d ed. 2016) (“Res judicata applies 

as between separate actions, not within the confines of a single action on trial or appeal.”). 

Because the holding in Harris is the opposite of what common law claim preclusion demands, 

the case is inconsistent with subsequent Supreme Court instruction that the judgment bar should 

“function[] in much the same way” as common law claim preclusion. Will, 546 U.S. at 353.

Moreover, applying Harris causes the “strange result” that the Supreme Court cautioned 

against in Simmons. If dismissal of King’s FTCA claim precludes his Bivens claims, then King’s 

meritorious suit against Defendants turns on the order in which the district court addresses the 

motions before it. See Simmons, 578 U.S. at 630–31; cf. Carlson v. Green, 446 U.S. 14, 20 

(1980) (“it [is] crystal clear that Congress views FTCA and Bivens as parallel, complementary 

causes of action”).

Because the Supreme Court directs courts to apply the judgment bar like common law 

claim preclusion, which does not apply to claims within the same suit, Harris must not control 

the outcome of this appeal. To continue to follow Harris would be inconsistent with nearly two 

decades of intervening Supreme Court precedent directing lower courts to interpret the judgment 

bar consistent with common law claim preclusion doctrine.

Besides the common law concerns, not applying the judgment bar to intra-suit claims also 

makes practical sense, especially under the facts of this case. King sought to revive only his 
No. 17-2101 King v. United States, et al. Page 14

Bivens claims on appeal. Perhaps he agreed with the district court’s determination that his FTCA 

claim lacked jurisdiction, and thought it would be frivolous to appeal that claim. Regardless of 

the reason he failed to appeal the dismissal of his FTCA claim, future plaintiffs would be 

incentivized to always appeal FTCA claims or risk having their entire suit dismissed under the 

judgment bar. As the Supreme Court noted in Will, the concern behind the judgment bar is 

avoiding “duplicative litigation.” 546 U.S. at 353. Under the same logic, incentivizing plaintiffs 

to appeal FTCA claims as a matter of course, regardless of merit, is an equally absurd waste of 

judicial resources.

III. CONCLUSION

The majority’s holding is a profound and frightening miscarriage of justice. That federal 

officers who refuse to identify themselves can spontaneously, and unprovoked, beat an 

individual nearly to death and be entirely free from civil liability simply because the individual 

chooses not to waste judicial resources on a frivolous appeal is not compatible with notions of an 

ordered and civilized society. Because the majority follows outdated law and dismisses King’s 

claims, I strongly dissent.