A Chicago judge's decision to overturn a $6.5 million jury award to a wrongful imprisonment plaintiff suggests that a federal law barring dual recovery against the government and its employees is having absurd results.

Under 28 U.S.C. § 2676, a judgment obtained in a Federal Tort Claims Act case “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.”

Congress enacted the law to prevent a plaintiff from filing multiple suits on the same facts and shield individual federal employees from having to pay damages. FTCA claims are generally easier to prove than individual or Bivens claims.

But U.S. District Judge Matthew F. Kennelly disregarded any policy considerations in applying the law to the case of Stephen Manning, a former Death Row inmate who claimed two FBI agents framed him for a 1990 murder.

In the jury portion of a bifurcated trial, Manning won the damages award on his Bivens claims against agents Robert Buchan and Gary Miller. He spent 14 years in prison, eight on Illinois' Death Row, before his release in 2004.

The plaintiff, however, lost on his FTCA claims, which Kennelly heard in a bench trial. And even though that judgment went against Manning, the judge agreed with government lawyers that it should wipe out the separate jury verdict.

“[S]ection 2676’s judgment bar applies to a non-FTCA claim brought as part of the same action as an FTCA claim, and it applies irrespective of whether the FTCA judgment was favorable to the plaintiff,” Kennelly said in a Dec. 26 opinion.

The 9th U.S. Circuit Court of Appeals addressed the same situation in Kreines v. U.S., 959 F.2d 834 (1992). Citing the intent of Congress, it refused to vacate the Bivens award to a plaintiff who had lost on her companion FTCA claim.

“The statutory bar was conceived by Congress primarily to prevent dual recoveries arising from additional, subsequent litigation,” the court said.

Kennelly, however, said the statute was not ambiguous and “even were it appropriate to consider the legislative history, it cannot be given significant weight in interpreting section 2676.” The 5th Circuit, he noted, has stated that

by the clear language of § 2676, the price of obtaining an FTCA judgment against the United States based on a given incident is the loss of all claims arising from that incident against the United States’ agents. Rodriguez v. Handy, 873 F.2d 814 (1989).

Manning did not “obtain” any FTCA judgment -– and Kennelly's rigidly formalist interpretation of the law only adds insult to the injury he suffered from his wrongful imprisonment.

"A jury spent a month listening to the evidence and concluded the FBI had framed Manning," plaintiff's attorney Jon Loevy said. "A court shouldn't be so free to just override a jury verdict."

By Matthew Heller
1/2/07