Supreme Court Takes Up Suit Against Federal Law Enforcement Agents
It was a quiet morning in the U.S. Supreme Court, as the Court decided one civil case on liability for an oil spill and took up one case involving civil suits against federal law enforcement officers.
The new case is Brownback v. King, No. 19-546. The case involves the interrelation between the Federal Tort Claims Act (FTCA) and the cause of action created by the Supreme Court in Bivens v. Six Unknown Named Agents in 1971. The FTCA includes a provision 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.” The question is whether this provision precludes a Bivens claim against the same agents for the same conduct after the plaintiff loses the FTCA suit.
The Court turned down South Carolina’s petition in Cannon v. Seay, No. 19-311, on the ninth consideration. The case involves the question of when there is “manifest necessity” to grant a mistrial and retry a case over the defendant’s objection and how much deference a federal court in habeas corpus must give a prior state court decision of the question. Justices Thomas, Alito, and Kavanaugh noted they would have taken up the case. Under the “rule of four,” that is one vote short.
In Thomas v. New York, 19-1060, the Court turned down a case involving an appeal waiver in a plea bargain that forbade filing a notice of appeal, thereby creating a jurisdictional bar preventing higher court from hearing even unwaivable issues.
No action yet on the much-watched California “sanctuary” case, United States v. California, No. 19-532. The Court will consider yet again whether to take it up in this Friday’s conference.