The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Steven Manning filed a suit against two Federal Bureau of Investigation agents for violating his constitutional rights and against the United States under the Federal Tort Claims Act for common law torts. All of these claims arose from the same subject matter. The claims were tried together -- the claims against the agents to a jury, and the FTCA claims to the Court. The jury found in Manning's favor and awarded him over $6,500,000 in damages against the agents. The Court took the FTCA claims under advisement. Manning did not withdraw the FTCA claims even though he was aware that by allowing the FTCA claims to proceed to judgment, he risked losing the jury award, by operation of law, once the Court entered judgment on the FTCA claims.
The Court ultimately found against Manning on the FTCA claims and entered a judgment in the government's favor on those claims. The FBI agents have now moved to vacate the judgment against them. The Court concludes that the statute upon which the agents rely, 28 U.S.C. § 2676, has the effect of requiring a plaintiff who brings both FTCA and non-FTCA claims arising from the same subject matter to choose his remedy before the FTCA claim proceeds to judgment. Once judgment is entered on the FTCA claim, that judgment nullifies the parallel non-FTCA claim, even if it had previously proceeded to judgment. Manning made his choice when he allowed the FTCA claim -- which provides greater certainty in collecting an award -- to proceed to judgment. He cannot now avoid the consequences of that choice.
For the reasons stated below, the Court grants the FBI agents' motion and vacates the judgment against them.
Following investigations conducted by the Federal Bureau of Investigation, the Buffalo Grove Police Department, and other authorities, Manning was convicted of kidnapping in Missouri, where he received a sentence of life in prison, and of murder in Illinois, where he received a death sentence. His convictions were ultimately overturned, and the authorities elected not to retry him on either charge.
Manning filed suit against two FBI agents, Robert Buchan and Gary Miller, and against the United States, seeking to recover damages arising from his allegedly wrongful prosecution and imprisonment. Manning sought to recover damages against Buchan and Miller under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violating his constitutional rights in connection with the Missouri and Illinois prosecutions, and under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1964(c). Manning sought to recover damages against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1) & 2674, for malicious prosecution and intentional infliction of emotional distress. All of Manning's claims arose from the same set of facts, specifically, actions taken by Buchan and Miller and others allegedly acting in concert with them during the investigation and prosecution of the Missouri and Illinois cases.
The Court conducted a simultaneous, though bifurcated, trial of Manning's claims against Buchan and Miller -- as to which Manning had demanded a jury trial -- and his FTCA claims, on which there is no right to a jury trial. On January 24, 2005, a jury found in Manning's favor on his Bivens claims against the FBI agents and awarded him over $6,500,000 in damages; the jury found in Buchan and Miller's favor on the RICO claims.
At the conclusion of the trial, the Court took Manning's FTCA claims under advisement. On March 23, 2005, Manning asked the Court to enter a judgment on the jury's verdict relating to the Bivens claims. See Pl.'s Mot. for Entry of Judgment on the Jury's Verdict (docket no. 223). In the motion, Manning argued that there was no good reason not to enter a judgment on that verdict, and three good reasons to enter a judgment. First, Manning argued, there is at least some question as to whether a judgment on the FTCA claim entered simultaneously with the Bivens verdict would trigger the FTCA's judgment bar. See 28 U.S.C. § 2676. Although the law is split on the question, some courts have held that this bar does not come into play if the Bivens judgment is entered first. Other courts, however, seem [to] believe that judgment on the FTCA claim is "likely to nullify any Bivens judgment." Still other courts have required the plaintiff to choose his preferred judgment.
Id. at 2 (citations omitted). The Court notes that in this argument, Manning specifically acknowledged his awareness of the risk that a judgment on the FTCA claim would nullify the Bivens judgment. Second, Manning argued, entering a judgment against Buchan and Miller on the Bivens claims might start the process under which they could seek indemnification from the government for the damage award against them. Id. Third, Manning argued, entering a judgment would allow post-judgment interest to begin accruing.
The government interposed no objection to Manning's motion, so on March 25, 2005, the Court entered an order which directed the Clerk to enter judgment as follows: On Count 1 (Illinois murder case), judgment is entered in favor of plaintiff and against defendants Buchan and Miller. [On] Count 7 (Missouri kidnapping case), judgment is entered in favor of plaintiff and against defendant Buchan, and in favor of defendant Miller. Compensatory damages are awarded in the amount of $3,851,100 on Count 1 and $2,555,000 on Count , and punitive damages are awarded in the amount of $100,000 against defendant Buchan and $75,000 against Miller.
Order of Mar. 25, 2005 (docket no. 225). The Clerk evidently did not actually enter a judgment as directed; at least, none appears on the docket. That is, however, a clerical error that, if necessary, could be corrected by ordering, nunc pro tunc, entry of a judgment on the Bivens claims.
In July 2005, the Court granted a motion by the government to reopen the evidence regarding a fairly narrow point on the FTCA claims. This ruling necessitated further discovery and a brief evidentiary submission that took place in February 2006. In the interim, in November 2005, the Court upheld the jury's verdict on the Bivens claims against a post-trial challenge by Buchan and Miller.
In September 2006, the Court entered findings of fact and conclusions of law on the FTCA claims. The Court found in favor of the government on those claims. The Court then entered a judgment on the FTCA claims, noting that this concluded the case because it disposed of all remaining ...