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Delarosa v. United States

United States District Court, Northern District of New York

March 27, 2015

Lizamaris Delarosa, Plaintiff,
v.
United States of America, AUSA Craig Nolan, ATF S/A Thomas M. Jusianiec, and T.F.O. Thomas McCoy, Defendants.

Lizamaris Delarosa, Plaintiff, pro se.

Hon. Richard S. Hartunian, United States Attorney Charles E. Roberts, Esq., Assistant United States Attorney, Attorney for Defendants.

MEMORANDUM-DECISION AND ORDER

Norman A. Mordue, Senior U.S. District Judge

INTRODUCTION

Presently before the Court is a motion for summary judgment (Dkt. No. 63) by Special Agent Thomas M. Jusianiec and Task Force Officer Thomas McCoy, the sole remaining defendants in this pro se lawsuit. Plaintiff’s lawsuit is based on defendants’ alleged wrongful conduct during the investigation and prosecution of plaintiff’s husband, Noel Delarosa. By Memorandum-Decision and Order issued September 22, 2014 (Dkt. No. 58), the Court dismissed all claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-80, on the ground of plaintiff’s failure to exhaust her administrative remedies and the statute of limitations; dismissed all claims against the United States; and ordered that the case would proceed solely on plaintiff’s remaining claims against Agents Jusianiec and McCoy under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

By Text Order (Dkt. No. 61), the Court gave the Government leave to move, prior to discovery, for summary judgment dismissing the remaining Bivens claims based on the judgment bar of 28 U.S.C. § 2676.[1] That motion is now before the Court. As explained below, the Court denies the motion.

DISCUSSION

The judgment bar set forth in the FTCA, 28 U.S.C. § 2676, provides:

The judgment in an action under section 1346(b) of this title [i.e., 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.

Defendants argue that this Court’s September 22, 2014 decision granting summary judgment dismissing plaintiff’s FTCA claims constitutes a “judgment” within the meaning of section 2676 and thus is a complete bar to plaintiff’s Bivens claims against Agents Jusianiec and McCoy. In support of their argument, defendants rely heavily on the Second Circuit’s analysis of the judgment bar in Hallock v. Bonner, 387 F.3d 147, 154-55 (2d Cir. 2004), rev’d on other grounds sub nom. Will v. Hallock, 546 U.S. 345 (2006). The Court agrees that the Second Circuit’s analysis in Hallock is determinative here. It does not, however, lead to the result defendants urge.

Briefly, the relevant facts in Hallock are that Susan Hallock was a plaintiff in an FTCA action stemming from the alleged misconduct of United States customs agents in executing a search warrant. The district court granted the United States’ motion to dismiss the action on the ground that the agents’ actions occurred in the course of detaining goods and thus fell within an exception to the FTCA’s waiver of sovereign immunity set forth in 28 U.S.C. § 2680(c). See Hallock v. United States, 253 F.Supp.2d 361 (N.D.N.Y. 2003). While the FTCA action was still pending, Susan Hallock filed a separate Bivens action against the individual agents, alleging Fifth Amendment due process violations. After the district court dismissed the FTCA action, the agents moved for dismissal of the Bivens action, relying on the judgment bar. The district court denied the motion, characterizing the dismissal of the FTCA action pursuant to section 2680(c) as a dismissal for a procedural defect, and suggesting that the judgment bar applied only where the FTCA action was dismissed on the merits. See Hallock v. Bonner, 281 F.Supp.2d 425, 427-28 (N.D.N.Y. 2003). The Second Circuit, asserting appellate jurisdiction under the collateral order doctrine, affirmed on different grounds, as discussed below. See Hallock v. Bonner, 387 F.3d at 154-55. The Supreme Court reversed and remanded, holding that the collateral order doctrine did not apply and that the Second Circuit thus lacked jurisdiction to review district court’s non-final order rejecting the judgment bar as a basis to dismiss the Bivens action. See Will v. Hallock, 546 U.S. at 353-55. Because the Supreme Court did not reach the issue of the applicability of the judgment bar, and the Second Circuit has not revisited the issue, the Second Circuit’s analysis of section 2676 in Hallock is still good law in this circuit.[2]

In Hallock, the Second Circuit concluded that the dismissal of the FTCA action did not result in a “judgment in an action under [the FTCA], ” 28 U.S.C. § 2676, and thus did not trigger the judgment bar. The court reasoned that, because the claims in the FTCA action fell within an exception to the United States’ waiver of sovereign immunity, see 28 U.S.C. § 2680(c), the action was not one properly brought “under” the FTCA, and the judgment bar did not apply. The circuit court explained:

As we see it, an action brought under the FTCA and dismissed for lack of subject matter jurisdiction because it falls within an exception to the restricted waiver of sovereign immunity provided by the FTCA does not result in a “judgment in an action under section 1346(b) [the Federal Tort Claims Act].” 28 U.S.C. § 2676. This is so because the action was not properly brought under the Federal Tort Claims Act in the first place and is a nullity. We hold that for the judgment bar to apply, the action must first be a proper one for consideration under the Federal Tort Claims Act. In other words, it must fit within the category of cases for which sovereign immunity has been waived. If it does not, then a judgment declaring a lack of subject matter jurisdiction denotes that sovereign immunity has not been waived and that the case is not justiciable in any event.

Hallock, 387 F.3d at 155 (emphases and brackets in original). With respect to the District Court’s holding that section 2676 did not require dismissal of the Bivens action because the FTCA action was dismissed for a ...


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