Defendants concede that the individual defendants in this
action qualify as "law enforcement officers" as defined in
Section 2680(h). See Defs. Mem., at 32, n. 8. They nevertheless
maintain that plaintiff's FTCA claim is barred because the
individual defendants are not alleged to have committed an
assault while in the course of executing a search, seizing
evidence, or making an arrest. In support of their argument,
defendants rely upon the Third Circuit's decision in Pooler v.
United States, 787 F.2d 868, 872 (3d Cir. 1986), and the
legislative history of Section 2680(h).
In Pooler, the Third Circuit reasoned that the intentional
tort waiver of immunity provision of the FTCA was limited only to
law enforcement officials' actions committed in the course of a
search, seizure or arrest. See Pooler, 787 F.2d at 872 (citing
S.Rep. No. 588, 93d Cong, 2d Sess., 2-3 (1974), reprinted in
1974 U.S.Code Cong. & Ad.News 2789, 2790-91). Since the alleged
assault in this case occurred while the defendants were
attempting to transport Ortiz from the compound to the SHU, but
arguably not during a search, seizure, or arrest, defendants
contend that there has been no waiver of sovereign immunity.
The few courts that have directly addressed the holding of
Pooler have not adopted its narrow reading of Section 2680(h).
See Harris v. United States, 677 F. Supp. 403, 405-06 (W.D.N.C.
1988); Crow v. United States, 659 F. Supp. 556, 570 (D.Kan.
1987); Employers Insurance of Wausau v. United States,
815 F. Supp. 255, (N.D.Ill. 1993) (rejecting restrictive view of
Pooler, court concludes that for immunity to be waived,
intentional tort being challenged must be committed by a law
enforcement officer merely when he is engaged in a law
enforcement activity); cf. Barber v. Grow, 929 F. Supp. 820, 824
(E.D.Pa. 1996) (court assumes that as long as person who
intentionally pulled chair out from underneath a prisoner was a
law enforcement officer, even though this conduct did not occur
in the course of an arrest, search or seizure, plaintiff would
have a claim under the FTCA for assault and battery); but see
Wood v. United States, No. 92 Civ. 0247(JSM), 1993 WL 177821, at
*1 (S.D.N.Y. May 17, 1993) (court adopts Pooler view of §
As in the cases cited above, this Court finds itself in
disagreement with Pooler, since, without any principled
underpinning, the Third Circuit's view would render Section
2680(h) inapplicable to many legitimate complaints that
corrections officers used excessive force against inmates in
circumstances which do not involve a search, seizure or arrest.
It also distorts the plain language of the statute, which, on its
face, does not require that the law enforcement officer be
engaged in one of the enumerated acts at the time of the alleged
wrongdoing. The statute is unambiguous in waiving the
Government's immunity with respect to any claim arising out of an
assault committed by a federal law enforcement officer. It only
references searches, seizures and arrests in attempting to define
who may be considered a federal law enforcement officer. It would
have been easy enough for Congress to have provided that it was
waiving immunity with regard to acts of law enforcement officers
only while such officers are executing searches, seizures or
arrests. Congress failed to do so, choosing instead to waive
immunity for certain intentional torts, including assaults,
committed by law enforcement officers who have the authority to
make searches, seizures and arrests.*fn9
Moreover, as another court has observed, under the Pooler
interpretation, the provision of the statute waiving immunity as
to claims of malicious prosecution would be rendered meaningless,
because it is difficult to conceive of how a federal official
could commit the acts constituting malicious prosecution in the
course of an arrest, search or seizure. See Crow, 659 F. Supp.
Furthermore, because the language of § 2680(h) is unambiguous,
the sparse legislative history that the Third Circuit relied upon
in reaching a contrary position is irrelevant. It is black letter
law that a court should not resort to legislative history unless
a statute is ambiguous. See Lee v. Bankers Trust Co.,
166 F.3d 540, 544 (2d Cir. 1999); Greenery Rehabilitation Group, Inc. v.
Hammon, 150 F.3d 226, 231 (2d Cir. 1998).
Finally, in its decision in Hernandez v. Lattimore,
612 F.2d 61, 64 (2d Cir. 1979), the Second Circuit held that, in addition
to his FTCA claim, the plaintiff had a Bivens claim arising out
of his beating by federal correctional officials. Although there
was no appeal in Hernandez of the district court's finding that
an FTCA claim had been properly pled, the Second Circuit accepted
that the conduct in issue gave rise to a waiver of immunity under
the FTCA, even though it did not arise in the course of an
arrest, search or seizure. Consistent with the language of §
2680(h), the Court only concerned itself with the power to make
arrests in the context of defining who, under the statute, could
be considered a law enforcement officer. See Hernandez, 612
F.2d at 64, n. 7. Defendants argue that Hernandez "does not
foreclose [their] proposed interpretation of § 2680(h)," because
the Second Circuit was not expressly asked to consider the
availability of the FTCA remedy. See Defs. Reply Mem., at 12.
Suffice it to say, if this aspect of the Hernandez decision is
dicta, it is persuasive dicta.
For all of the above reasons, the Court concludes that the FTCA
waiver of sovereign immunity is applicable to plaintiff's claims.
B. Severance and Election of Remedies
The defendants' final contention is that if the Court permits
plaintiff's FTCA claim to proceed, it should exercise its
discretion under Federal Rule of Civil Procedure 42(b) to sever
Ortiz's FTCA and Bivens claims, and stay the Bivens claim.
Defendants' primary argument in favor of severance is that a
single trial on all of Ortiz's claims would be inefficient. The
FTCA claim will be tried to the Court and the Bivens claim
entails the right to a jury trial. Defendants contend that since
a judgment on the FTCA claim would bar a recovery on the Bivens
claim, trying the FTCA claim first would avoid the time and
expense associated with a jury trial, including determining the
proportional liability of each defendant as well as the right to
punitive damages, which does exist under the FTCA. Plaintiff
opposes the application to sever his claims, but requests that in
the event that a severance is granted, he be permitted to elect
as to which claim to proceed on first.
As the Second Circuit made clear in its Hernandez decision, a
plaintiff may commence an action containing both Bivens and
FTCA claims because the "two remedies do not stand in pari
materia." Hernandez, 612 F.2d at 67. See also Carlson v.
Green, 446 U.S. 14, 19-20, 100 S.Ct. 1468, 1472, 64 L.Ed.2d 15
(1980) ("[W]hen Congress amended FTCA in 1974 to create a cause
of action against the United States for intentional torts
committed by federal law enforcement officers, 28 U.S.C.
2680(h), the congressional comments accompanying that amendment
made it crystal clear that Congress views FTCA and Bivens as
parallel, complementary causes of action."). The mere fact that a
plaintiff may bring both claims in a single action, however,
does not mean that ultimately he can recover on both. Indeed,
the FTCA expressly bars a plaintiff from recovering damages
against an employee of the government after securing final
judgment on an FTCA claim arising out of the same facts. See
28 U.S.C. § 2676; see also Gasho v. United States, 39 F.3d 1420,
1437 (9th Cir. 1994). Accordingly, when both claims are brought
in a single action, the FTCA bar will prevent a successful
plaintiff from recovering Bivens damages from the individual
defendants, even if both claims are tried together and judgments
on both are entered simultaneously. See Serra v. Pichardo,
786 F.2d 237, 241 (6th Cir. 1986); see also Engle v. Mecke,
24 F.3d 133, 135 (10th Cir. 1994); Ting v. United States,
927 F.2d 1504, 1513 n. 9 (9th Cir. 1991); Birnbaum v. United States,
588 F.2d 319, 333 (2d Cir. 1978) ("Since a judgment in an action
against the United States under the FTCA will constitute a
judgment in bar in favor of the employee whose acts have given
rise to the claim, 28 U.S.C. § 2676, it is likely, however, that
claims for torts would be made against the United States rather
than, as Bivens suits, against the employee."); Aetna Cas. &
Sur. Co. v. United States, 570 F.2d 1197, 1201 (4th Cir. 1978);
Popal v. United States, No. 94 Civ. 6178(DLC), 1996 WL 185731,
at *2-3 (S.D.N.Y.Apr.18, 1996).
Although, ultimately, plaintiff may have the right to recover
on either his FTCA or Bivens claim, but not on both, there is
no compelling reason to force plaintiff to make that choice now
or to sever the claims. Nor is there any sound basis for the
Court to require that the FTCA claim be tried first.
Although the Court has the discretion to sever the claims under
Rule 42(b), Fed. R.Civ.P., there is little efficiency to be
gained from severance in this action. The proof with regard to
each of the claims will be virtually identical.*fn11 Cf.
Gasho, 39 F.3d at 1438 ("Plaintiffs 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.
This will foster more efficient settlement of claims, since the
evidence and proof in FTCA and Bivens claims often overlap.")
Thus, assuming plaintiff was required to elect a remedy, and
chose to proceed first on his Bivens claim and later on the
FTCA claim, the parties and the Court might be required to
participate in two virtually identical trials. That would indeed
be wasteful. Alternatively, if plaintiff was required to proceed
first on the FTCA claim, it would in effect preclude any remedy
on the Bivens claim since the FTCA judgment would bar any
recovery against the individual officers. This would defeat
Congress's intent in providing two complementary remedies, and
would serve to deprive plaintiff of his right to a jury trial,
raising Seventh Amendment concerns. See Fed.R.Civ.P. 42(b)
("The court, in furtherance of convenience, or to avoid
prejudice, or when separate trials will be conclusive to
expedition and economy, may order a separate trial of any claim .
. . always preserving inviolate the right to a trial by jury as
declared by the Seventh Amendment to the Constitution. . . .")
(emphasis added); Engle, 24 F.3d at 135 ("Had [the plaintiff]
chosen to seek his redress from the individual law enforcement
officer, the jury verdict [on the Bivens claim] would have been
given full effect and his Seventh Amendment rights would have
If the claims are not severed, a bifurcated trial could be held
in which the FTCA claim would be heard by the Court and the
Bivens claim would be tried to a jury. If the jury was
permitted to first deliver its verdict on the Bivens claim, and
plaintiff was successful, plaintiff might then choose to dismiss
the FTCA claim, thereby eliminating the need for a decision by
the Court.*fn12 Alternatively, if the jury returned a verdict
against plaintiff on his Bivens claim, he would still have the
right to pursue his FTCA claim, and the Court could issue a
decision based on the evidence it had already heard when the case
was being tried to the jury. It is not uncommon for a court to
hear the same evidence presented to a jury, where different
remedies are available from each trier of fact. See, e.g.,
Engle, 24 F.3d at 134 (district court bifurcated trial, first
submitting Bivens claims to the jury and then ruling on the
FTCA claim); Serra, 786 F.2d at 239 (single trial on FTCA and
Bivens claims was conducted, after which Government stipulated
to liability on the FTCA claims, thereby nullifying Bivens
judgment); Gallardo v. United States, 697 F. Supp. 1243
(E.D.N.Y. 1988) (same evidence was heard by jury on negligence
claims among the parties, and by the court on the FTCA claim,
although jury's findings did not control on court's determination
of FTCA claim).
Judges of this Court have not taken a consistent approach to
this issue. In one recent case, Judge Rakoff decided to sever the
FTCA and Bivens claims, but allowed the plaintiff to elect on
which remedy he chose to proceed. See Adami v. United States,
94 Civ. 8773(JSR) (S.D.N.Y. Feb. 17, 1998) (transcript of hearing
at 17-27, 42-46), attached as Ex. J to Katz Decl. In Adami, the
Court did not appear to base its decision on principles of law;
rather, Judge Rakoff was of the view that if he tried both claims
together in a bifurcated trial, he would want to immediately
issue his decision from the bench on the FTCA claim, thus
rendering the jury's verdict on the Bivens claim superfluous.
In addition, the plaintiff had an FTCA claim for malicious
prosecution, but did not have a similar Bivens claim. Thus,
there was some reluctance to allow the jury to hear evidence that
was not relevant to the claims it was considering. After Judge
Rakoff ordered that the claims be severed in Adami, the
plaintiff elected to proceed on the Bivens claim.
In Rivera v. United States, No. 88 Civ. 2395(SHS) (S.D.N.Y.),
Judge Stein directed that the FTCA claim be tried first, in large
part because there were eighteen individual defendants, and a
jury trial with respect to each defendant's liability was
perceived as being significantly more complex than an FTCA trial
in which only the Government's liability was in issue. See
Order dated May 17, 1996, attached to Defs. Mem. As a practical
matter, the court's approach in Rivera extinguished the
plaintiff's Bivens claim and right to a jury trial. Cf.
Carlson, 446 U.S. at 23, 100 S.Ct. at 1474 ("Plainly FTCA is not
a sufficient protection of the citizens' constitutional rights,
and without a clear congressional mandate we cannot hold that
Congress relegated respondent exclusively to the FTCA remedy.").
Finally, in Popal v. United States, 99 Civ. 6178(DLC), Judge
Cote dismissed the plaintiffs' Bivens claims because the
Government accepted judgment on plaintiffs' FTCA claims.
Consistent with the case law cited above, Judge Cote found that a
judgment on the FTCA claims precluded any further action against
the individual employees on the Bivens claims. See Popal,
1996 WL 185731, at *2-3.
Unlike these cases, which were much more complex and involved
multiple parties, in this action, the number of witnesses is
limited and the evidence to be presented
on the Bivens and FTCA claims substantially overlaps. Moreover,
thus far there has been no admission of liability by the
Government with respect to the FTCA claim. Thus, a single, but
bifurcated trial on the FTCA and Bivens claims would not be
unduly burdensome and would preserve plaintiff's right to pursue
claims under both Bivens and the FTCA.
For the reasons set forth above, I respectfully recommend that
the defendants' summary judgment motion be denied. I further
recommend that the Bivens and FTCA claims not be severed, and
that the jury be allowed to first render its verdict on the
The parties are hereby directed that if they have any
objections to this Report and Recommendation, they must, within
ten days from today, serve and file them with the Clerk of the
Court and send courtesy copies to the chambers of the Honorable
Kimba M. Wood and the undersigned. See 28 U.S.C. § 636(b)(1);
Fed. R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of
time for filing objections must be directed to Judge Wood.
Failure to file objections will result in a waiver of those
objections for purposes of appeal. See Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL — CIO Pension
Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993) cert
denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994);
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Small v. Secretary
of Health and Human Svs., 892 F.2d 15, 16 (2d Cir. 1989);
Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);
McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983);
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
November 5, 1999.