[Stephen Maturin]

Now that the Senate has confirmed Roberts as the 17th Chief Justice of the Supreme Court of the United States (or 11th Earl of Mar, or Public Animal Number 9, or whatthehellever), we'd best get back to discussing the cases that Chief Justice Roberts and his colleagues will be deciding this term. Scarlatti's apparently back in school and maddog has a real job, so perhaps I should have a go at one or two cases.

Besides, I'm downright euphoric at the moment. My ex-boss and I just beat summary judgment in a complex multi-defendant product liability case pending before a notoriously anti-plaintiff judge. In addition, I just traversed the entire length of our bedroom without having to step on and/or trip over any of Lisa's clothing. Yessir, it's been a damn fine day! Maybe TOO fine a day. I need to come down a bit, and no buzzkill on earth is as effective as summarizing an extremely dull case.

Which brings us to Will v. Hallock, No. 04-1332, yet another Federal Tort Claims Act ("FTCA") case on the Court's docket. Unlike the FTCA case Scarlatti discussed above, though, this one is of little interest to anyone but procedure geeks and federal judges.

According to the plaintiffs, a bunch of agents from the U.S. Customs Service, U.S. Department of Justice, U.S. Department of the Treasury and U.S. Marshals Service executed a search warrant at the Mohawk, New York home of Susan and Richard Hallock. Apparently, the authorities suspected Richard of violating federal criminal statutes prohibiting sexual exploitation of minors and possession of child pornography. Among the items seized during the search were a bunch of computers and disk drives that Susan used in her home-based business.

It seems that the kiddie pornographer, whoever that may have been, was also an accomplished identity thief. He stole Richard's identity and used it to cover his own nefarious tracks. In any event, the authorities examined the Hallocks' computers thoroughly and found no indication of illegal activity. No charges were ever brought and, after six months, the feds returned the computer equipment.

Trouble is, the equipment was completely wrecked when the Hallocks got it back. As a result, Susan Hallock had to shut down what was apparently a rather lucrative multimedia technology business.

Susan filed a FTCA lawsuit against the United States in the U.S. District Court for the Northern District of New York seeking recovery of money damages relating to the loss of her business. In days gone by, the federal government enjoyed immunity from lawsuits for civil damages. Pursuant to very old English common law, the King could do no wrong. After all, his reign was sanctioned by God himself. Though divine right monarchy had no place in the U.S. government established after the American Revolution, the common law notion of sovereign immunity somehow tagged along.

As Scarlatti noted above, the FTCA is a limited waiver of sovereign immunity that allows aggrieved persons to sue the federal government for damages under certain circumstances. However, the right to sue is subject to numerous exceptions, including this one:

Any claim arising in respect of . . . the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer . . . .

28 U.S.C. sec. 2680(c). Granting the government's motion to dismiss for lack of subject matter jurisdiction, the trial judge held that the claims at issue arose from the detention of Ms. Hallock's computer equipment and therefore were not within the scope of FTCA's waiver of sovereign immunity. That decision was never appealed.

Susan's lawyer must have seen the handwriting on the wall. Before the judge dismissed her case against the U.S., Susan filed a separate lawsuit in the same district court against the individual government agents involved in the search and seizure. To make a really long story really short, a Supreme Court case called Bivens authorizes persons injured by the unconstitutional acts of federal agents to sue the agents and recover money damages. In her second complaint Susan alleged that the damages to her computer equipment and resulting loss of her business were the result of the agents violating her Fifth Amendment property rights.

As soon as the trial court dismissed the first lawsuit, the defendants in the Bivens action filed their own motion to dismiss, relying on the "judgment bar" rule set forth in the FTCA. That rule reads:

The 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. sec. 2676.

Looks pretty conclusive, doesn't it? After all, the Bivens action against the agents involved the same subject matter as the previously dismissed FTCA claim against the federal government. Even so, the judge denied the agents' motion to dismiss. He characterized the judgment in the FTCA case as being based on a "procedural error" -- lack of jurisdiction -- and held that Ms. Hallock's "procedural loss" in the first case did not prevent her from enforcing her substantive rights in a subsequent action against "the proper defendants."

The agents appealed the judge's ruling denying their motion to dismiss. A three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously affirmed the trial court. Hallock v. Bonner , 387 F.3d 147 (2d Cir. 2004) (PDF, 14 pages).

The court of appeals had two issues to decide. The first was whether it even had authority to hear the appeal. Generally, the appellate jurisdiction of federal courts of appeals extends only to "final decisions." 28 U.S.C. sec. 1291. A decision is "final" if it disposes of all the issues in the case. The trial judge's decision denying the motion to dismiss clearly didn't qualify. Whether the agents were actually liable and, if so, the extent of Ms. Hallock's damages, remained to be decided.

There are several statutory exceptions to the final decision rule, none of which applied here. Ordinarily, the agents would have to wait until a final judgment is entered to appeal the adverse ruling on their motion to dismiss. However, there's a judicially-created exception to the final decision rule called the "collateral order doctrine" under which interlocutory (non-final) orders can be appealed where:

the interlocutory order . . . conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment.

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

The court of appeals held that it had jurisdiction to hear the appeal under the collateral order doctrine. The agents were relying on the "judgment bar" provision of the FTCA. The interest protected by that provision is the right not to stand trial or put up with the many other hassles associated with civil litigation. That interest could not be asserted "effectively" on appeal if the agents had to wait until after trial.

The second issue before the court of appeals was whether the trial court properly construed and applied the above-quoted "judgment bar" rule. On that issue the appellate court ruled that the trial judge reached the correct result for the wrong reason. The court didn't buy the trial judge's "procedural error" reasoning at all. Instead, it held that the judgment bar rule didn't apply since an FTCA action dismissed because it falls within an exception to FTCA's limted waiver of sovereign immunity -- as Susan's case against the U.S. was -- doesn't result in a "judgment in an action under [the FTCA]", as the judgment bar rule requires. Thus, the judgment bar doesn't apply unless the prior FTCA action was "within the category of cases for which sovereign immunity has been waived." On that basis, the Second Circuit upheld the trial court's decision to deny the agents' motion to dismiss.

The agents then requested that SCOTUS review the case. The Supreme Court granted certiorari on June 6, 2005 and ordered the parties to brief and argue the following issues:

Whether a final judgment in an action brought under Section 1346(b)
dismissing the claim on the ground that relief is precluded by one of the
FTCA's exceptions to liability, 28 U .S.C. 2680, bars a subsequent action by
the claimant against the federal employees whose acts gave rise to the FTCA
claim.

In addition to the Question presented by the petition, the parties are directed
to brief and argue the following Question: "Did the Court of Appeals have
jurisdiction over the interlocutory appeal of the District Court's order denying
a motion to dismiss under the FTCA's judgment bar, 28 U.S.C. §2676?"

The Supreme Court generally doesn't tell us why it agreed to hear a particular case. Here, I suspect it took the case because the Second Circuit's ruling on the judgment bar issue conflicts with that of a different federal court of appeals. Resolving such conflicts is a sizeable chunk of the Supreme Court's job. As to the second issue, at least four of the justices think it's time to limit, extend and/or clarify the collateral order doctrine.

Prediction: The Second Circuit's ruling is goin' down. A big majority of the Court (anywhere from 9-0 to 7-2) will answer both questions in the affimative.