In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-1120 and 07-1427

STEVEN MANNING,

Plaintiff-Appellant,

Cross-Appellee,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee,

and

ROBERT BUCHAN and GARY MILLER,

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.

ARGUED MAY 14, 2008—DECIDED OCTOBER 6, 2008

Before BAUER, FLAUM and MANION, Circuit Judges.
2 Nos. 07-1120 and 07-1427

BAUER, 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 investigation 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 intentional 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 government 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

In an odd twist—ultimately without any impact on this 1

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.

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
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 improperly interpreted § 2676 to nullify the jury’s verdict on the

Bivens claim. The FBI agents filed a conditional crossappeal 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]laintiffs 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 argument 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 claimant,” Manning posits that § 2676 bars all other “actions”—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 written 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 Underwriters 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 lawsuits 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 concurrently 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 judgment 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 Manning. 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 unreasonable 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 qualified 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 simultaneously (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 argument by noting the use of the term “bar,” which constitutes 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 argument draws too much from the Court’s comparative

point. Rather than suggesting that § 2676 imported principles 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 jurisdictional “bars.” We also find little support for Manning’s

argument in the legislative history of § 2676. Because § 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 argument from the language in Will. He contends that according 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 simultaneously” 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 collateral 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 Judgments

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 contemporaneously 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 “judgment” in § 2676 that allowed an interpretation that Congress 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 reasoning in Kreines, and therefore do not attach much significance 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 acknowledged 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 judgment—Manning noted the possibility that entering judgment 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 AFFIRM.

10-6-08