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IN the SUPREME COURT of the UNITED STATES No IN THE SUPREME COURT OF THE UNITED STATES _______________ No. 19A-_____ DOUGLAS BROWNBACK AND TODD ALLEN, APPLICANTS v. JAMES KING _______________ APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO FILE A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _______________ Pursuant to Rules 13.5 and 30.3 of the Rules of this Court, the Solicitor General, on behalf of Special Agent Douglas Brownback of the Federal Bureau of Investigation and Detective Todd Allen of the City of Grand Rapids Police Department, respectfully requests a 30-day extension of time, to and including September 25, 2019, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Sixth Circuit in this case. The court of appeals entered its judgment on February 25, 2019, and denied rehearing en banc on May 28, 2019. Therefore, unless extended, the time within which to file a petition for a writ of certiorari will expire on August 26, 2019. The jurisdiction of this Court would be invoked under 28 U.S.C. 2 1254(1). The opinion of the court of appeals (App., infra, 1a-29a) is reported at 917 F.3d 409. The court’s order denying rehearing (App., infra, 30a) is unreported. 1. This case arises from a violent altercation between respondent James King and Special Agent Brownback and Detective Allen, during which respondent alleged that the officers committed various intentional torts and violated his constitutional rights.* Respondent brought damages claims against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346 (2012 & Supp. III 2015) and 28 U.S.C. 2671-2680, as well as against the officers under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). This case involves the interplay between those claims, and specifically the operation of the FTCA’s judgment-bar provision in 28 U.S.C. 2676. a. The FTCA waives the sovereign immunity of the United States, creates a cause of action, and confers exclusive federal- court jurisdiction for claims that fall within the statute’s terms. See 28 U.S.C. 1346; FDIC v. Meyer, 510 U.S. 471, 477 (1994). The * Respondent’s lawsuit concerns the officers’ work on a joint fugitive task force involving the FBI and the Grand Rapids Police Department. The district court and the court of appeals determined that both officers should be treated as federal employees for purposes of this case, because Brownback was an FBI employee, and Allen -- although employed by Grand Rapids -- was a deputized federal agent working full time on a task force that was directed by the FBI. See 917 F.3d at 432-434; No. 16-cv-343, 2017 WL 6508182, at *4-*6. 3 FTCA provides that the remedy provided by Section 1346(b) “is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim,” 28 U.S.C. 2679(b)(1), but that limitation “does not extend or apply to a civil action against an employee of the Government * * * which is brought for a violation of the Constitution of the United States,” 28 U.S.C. 2679(b)(2)(A). A person who alleges a personal injury arising from a constitutional violation by federal employees is thus permitted to plead both an FTCA claim against the United States and a Bivens claim against the employees. See Carlson v. Green, 446 U.S. 14, 20 (1980). The FTCA also imposes a judgment bar, which provides that “[t]he 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. This Court has interpreted the judgment bar to mean that, “once a plaintiff receives a judgment (favorable or not) in an FTCA suit, he generally cannot proceed with a suit against an individual employee based on the same underlying facts.” Simmons v. Himmelreich, 136 S. Ct. 1843, 1847 (2016). b. Respondent filed this lawsuit against the officers following an altercation with them in July 2014. It occurred when 4 the officers stopped respondent on the street on suspicion that he was a fugitive, questioned him, and performed a pat-down search after he admitted that he was carrying a pocket knife. It is undisputed that respondent fled from the officers during the pat- down search and, upon being tackled, violently resisted arrest, causing the officers to use physical force to subdue respondent, injuring him. 917 F.3d at 417. As relevant here, respondent sued the United States under the FTCA, alleging six intentional torts, and sued the officers under Bivens, alleging an unreasonable search and seizure and that the officers had used unconstitutionally excessive force against him. The defendants moved to dismiss the complaint on two grounds: lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. In the alternative, the officers moved for summary judgment. The district court granted the motion. No. 16-cv-343, 2017 WL 6508182. First, the court held that respondent could not proceed on his Bivens claims because he had failed to allege or introduce facts sufficient to show that the officers violated his constitutional rights, either by engaging in an unreasonable search or seizure or by using excessive force. Id. at *7-*10. Second, the court held that the United States was entitled to judgment on respondent’s FTCA claim, because respondent had failed to allege or introduce facts sufficient to show that the officers’ actions could support “liab[ility] to the 5 claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. 1346(b)(1); see 2017 WL 6508182, at *13-*15. Specifically, the court determined that, under Michigan law, the officers’ actions were undertaken “within the scope of their authority”; “in good faith, or were not undertaken with malice”; and “were discretionary, as opposed to ministerial.” 2017 WL 6508182, at *14. 2. The court of appeals reversed in a partially divided opinion. 917 F.3d 409. a. Respondent’s appeal contested only the dismissal of his Bivens claims against the officers. See Resp. C.A. Br. 18 n.5 (“[Respondent] has decided not to pursue his claims against the United States on appeal.”). As a result, the United States was “not part[y] to th[e] appeal,” 917 F.3d at 416, and the FTCA judgment became final. The officers accordingly argued on appeal that respondent’s Bivens claims were now precluded by the FTCA judgment bar, because those claims arose from “the same subject matter” as his FTCA claim and were pleaded against the same governmental employees “whose act or omission gave rise to the [FTCA] claim.” 28 U.S.C. 2676. As relevant here, the panel majority rejected the officers’ argument that the judgment bar foreclosed respondent’s Bivens claims. 917 F.3d at 418-421. The majority observed that the FTCA enacts a limited waiver of the federal government’s sovereign 6 immunity, and “[s]overeign immunity is jurisdictional in nature.” Id. at 418 (citing Meyer, 510 U.S. at 475). The majority therefore reasoned that, if a plaintiff’s FTCA claim “fails to satisfy” the required statutory elements, it “does not fall within the FTCA’s ‘jurisdictional grant.’” Id. at 418-419 (quoting Meyer, 510 U.S. at 477). In the majority’s view, “[b]ecause [respondent] failed to state a FTCA claim,” the district court must have “lacked subject-matter jurisdiction over [his] FTCA claim,” and the district court’s judgment “was not a disposition on the merits.” Id. at 419-420. The panel majority then invoked Himmelreich v. Federal Bureau of Prisons, 766 F.3d 576 (6th Cir. 2014) -- which this Court affirmed on different reasoning in Simmons, 136 S. Ct. at 1843 -- for the proposition that “[a] dismissal for lack of subject-matter jurisdiction does not trigger the § 2676 judgment bar” because “in the absence of jurisdiction, the court lacks the power to enter judgment.” 917 F.3d at 419 (quoting 766 F.3d at 579). Applying that principle here, the panel majority concluded that “the district court’s dismissal of respondent’s FTCA claim ‘does not trigger the § 2676 judgment bar.’” Ibid. (citation omitted). b. Judge Rogers dissented in relevant part. He reasoned that “merits determinations under the FTCA are jurisdictional in that they implicate the sovereign immunity of the United States,” but a dismissal for failure to state a claim under the FTCA is 7 still a “‘judgment’” within the meaning of 28 U.S.C. 2676. 917 F.3d at 434. Judge Rogers noted that “the district court’s dismissal of [respondent’s] FTCA claims was based on an assessment of their merits” in light of Michigan law. Id. at 435. And this Court in Simmons, Judge Rogers explained, held that the judgment bar applies when an FTCA claim is dismissed “‘because [the plaintiff] simply failed to prove his claim.’” Id. at 434 (quoting 136 S. Ct. at 1849). In that circumstance, “‘it would make little sense to give [the plaintiff] a second bite at the money-damages apple by allowing suit against the employees’ to proceed.” Id. at 434-435 (quoting Simmons, 136 S.
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