Business as usual in the SCOTUS. There have been changes in personnel in the five years since our last post with this title.
But the results are the same.
The burning issue in this case? Whether a dismissal of a Federal Tort Claims Act (“FTCA”) case brought against the federal government bars any other litigation based on the same facts and circumstances.
Well, let me get a little lawyerly, in the sense of simply employing the rudimentary rules they taught us in law school. Under the usual doctrines of res judicata and claim preclusion and issue preclusion, sure, there’s a “bar” to duplicative litigation. You don’t get another bite at the apple, so to speak.
But there’s a hitch. You don’t generally get barred from suing again in a different venue unless there was an adjudication “on the merits” of your claim. So, to take the most obvious example, if you sued in the wrong court and that court had no jurisdiction to consider your claim, you can go over to the right court after that screw up and bring the claim there.
This is simple, horn-book law stuff.
So what happened with the case we linked to, known as Brownback v. King? Well, there was an FTCA claim and the District Court dismissed it for lack of jurisdiction. The 6th circuit says, well, that’s not a bar to subsequent litigation because the District Court didn’t have jurisdiction to consider the FTCA claim to begin with, so there was no adjudication on the merits.
Bad move, 6th circuit. You decided the government should lose.
The government then appeals – that is, brings a cert petition to the SCOTUS and guess what? The SCOTUS takes it up, it falls into that tiny pool of cases that the SCOTUS is going to hear and decide on the merits.
What’s the argument that the SCOTUS should, that Brownback presents some issue of general importance that is likely to recur enough to affect the beloved “system”? From the government’s brief:
Under the court of appeals’ reasoning, any decision in favor of the government on an FTCA claim based on a failure to show liability under state law can be characterized as “jurisdictional,” with the result that a very large number of FTCA judgments rejecting the liability of the United States would be deprived of the judgment bar’s preclusive effect.
Where does the government come up with “very large number”? They don’t say. Because it’s not only not true, it can’t possibly be true, and we talked about that years ago, after the SCOTUS decision in Connick v. Thompson:
We have millions of felony convictions and imprisonments. We have even more millions of misdemeanor convictions. I have cited the statistics before here, right out of the US Bureau of Justice Department.
How many annual successful civil rights actions arise out of all this domestic “kinetic” activity? At most 3,000, based on this and other BJS statistics.
It is axiomatic that violations of constitutional rights are likely in the course of a criminal prosecution, including simple arrests, because so many constitutional provisions apply. Yet – and this is prior to Connick, the latest installment – the number of recognized and allowed annual section 1983 claims is running at less than one-half of one percent of the annual felony convictions, and an infinitesimally small percentage of annual arrests.
As I said before in another post, this is effectively zero. 42 U.S.C. 1983 was killed by the SCOTUS. And that was before Connick.
The real reason SCOTUS is taking up the case, then, is because….the government is the Petitioner and the government wins. That’s the lesson. It’s been the lesson for decades now. And you don’t have to take our word for it:
The justices gave just one of last week’s relists the nod, and unsurprisingly, it was the one in which the government is the petitioner, Brownback v. King, 19-546.
From John Elwood’s “Relist Watch” yesterday. Emphasis supplied.
SCOTUS killed federal habeas corpus, too. We hope we don’t have to review that history again.
The SCOTUS bias in favor of well heeled and institutional litigants and their law firms is completely reflexive and unselfconscious at this point. You’re either in the 1%, meaning your claims are assiduously observed and carefully considered; or you’re the rabble, too trivial to be bothered with. It’s an axiom at the SCOTUS, and all the lower courts, state and federal, are just following suit.
It’s official. We’re better off without the courts. They exist to ratify and rationalize the prerogatives of the powerful over the powerless, while providing an illusion that redress of grievances can occur.
They are a lie.