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Thursday, February 25, 2021

Jurisdiction and Merits in the FTCA

SCOTUS unanimously held Thursday that the Federal Tort Claims Act's Judgment Bar applies where the district court dismisses an FTCA claim for lack of jurisdiction based on a determination that the complaint fails to plausibly allege elements of an FTCA claim. While the Court acknowledges that failure to state a claim ordinarily does not deprive the court of jurisdiction, the FTCA is unique. As a waiver of sovereign immunity, all elements of a meritorious claim are jurisdictional.

Descriptively, I think this is right, given the text of the FTCA, But it is bad news from my everlasting project of sharply separating jurisdiction and merits and not letting Congress make the former relate in any way to the latter. It also is bad news for my position that sovereign immunity should not be deemed jurisdictional--the suability of a defendant goes to the "who can be sued" prong of the merits, not jurisdiction. Another area to cover (along with standing) if I ever write this piece.

Justice Sotomayor concurred to address an issue briefed but not used in the decision--whether the judgment bar should apply in a case (such as this one) in which the plaintiff brings FTCA and individual claims in one action. Sotomayor suggests (rightly, I think) that the bar should not apply in those cases because claim preclusion would not apply there. It would be odd for a decision in one claim within a single action to have a preclusive effect on other claims in the same action.

Posted by Howard Wasserman on February 25, 2021 at 06:19 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


I didn't know your project included both "sharply separating jurisdiction and merits and not letting Congress make the former relate in any way to the latter." I thought it was just a claim about the best reading of jurisdictional and (putatively) non-jurisdictional statutes, not about what sorts of statutes Congress should enact. If it's about "not letting Congress" mix the two, what power do courts really have to "not let" them do it?

Posted by: Asher Steinberg | Feb 26, 2021 2:36:34 PM

Interesting. I don't see too much issue here of jurisdiction in fact. The district court, concluded, that the officers acted, in subjective good faith, not maliciously. So, it is on merits decided. Lack of jurisdiction, can be raised, only if in procedural terms (like in cases of lawsuits against judges) one can't at first place, bring the lawsuit. But here, we have statutory right, for suing the US or its employers for tort. So, nothing at first place, could bar the lawsuit itself (rejected in limine). So, it is as if, on merits decided, but, unfortunately, lacking evidentiary process in length.

Also, Justice Sotomayor differentiates indeed, between claim and action. Citing that, I quote:

"An"action" refers to the whole of the lawsuit"

While claim:

" the part of a complaint in a civil action specifying what relief the plaintiff asks for"

As such, I quote here reservation (for future cases, since concurring):

"Petitioners’ interpretation also produces seemingly unfair results by precluding potentially meritorious claims when a plaintiff’s FTCA claims fail for unrelated reasons. Here, for example, King’s constitutional claims require only a showing that the officers’ behavior was objectively unreasonable, while the District Court held that the state torts underlying King’s FTCA claims require subjective bad faith. If petitioners are right, King’s failure to show bad faith, which is irrelevant to his constitutional claims, means a jury will never decide whether the officers violated King’s constitutional rights when they stopped, searched, and hospitalized him."


Posted by: El roam | Feb 26, 2021 5:54:58 AM

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