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Manning v. United States

October 6, 2008


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 C 372-Matthew F. Kennelly, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED MAY 14, 2008

Before BAUER, FLAUM and MANION, Circuit Judges.

If a federal law enforcement officer commits a tort, the victim has two distinct avenues of relief: he may pursue a constitutional tort claim against the individual officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), or he may pursue a common law tort claim against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80. The latter avenue is subject to an important caveat. Under 28 U.S.C. § 2676, a judgment in an FTCA action acts as 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.

Steven Manning pursued both avenues of relief in this case. His Bivens claims against two FBI agents succeeded, but his FTCA claim against the United States failed. The district court, finding that the FTCA judgment bar applied, vacated Manning's favorable judgment on his Bivens claims. Manning appealed. Because we agree that the FTCA judgment barred Manning's Bivens claims against the agents, we affirm.


Steven Manning, a former Chicago police officer and FBI informant, was convicted of kidnapping in Missouri and murder in Illinois. He received a life sentence for the kidnapping charge and a death sentence for the murder charge. Both convictions were overturned. The Illinois Supreme Court reversed his murder conviction, People v. Manning, 182 Ill.2d 193, 695 N.E.2d 423, 230 Ill.Dec. 933 (1998), and the Eighth Circuit granted habeas relief on the kidnapping conviction, Manning v. Bowersox, 310 F.3d 571 (8th Cir. 2002). Manning has not been retried in either case.

Manning filed suit against FBI agents Robert Buchan and Gary Miller, alleging that their conduct in the investigation and prosecution of the Missouri and Illinois cases violated his rights. He sought relief under Bivens and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c). In the same action, he filed suit against the United States under the FTCA for common law torts of malicious prosecution and intentional infliction of emotional distress. Prior to discovery, Buchan and Miller moved for summary judgment based on absolute and/or qualified immunity. The district court denied these motions, and we affirmed. Manning v. Miller, 355 F.3d 1028 (7th Cir. 2004). The case returned to the district court for discovery and trial.

The two claims were tried together in a combined, though bifurcated, trial. Claims under the FTCA may not be tried to a jury, 28 U.S.C. § 2402, so district court judges often bifurcate trials where FTCA claims are joined with other claims. The district court in this case followed that procedure: the claims against Buchan and Miller were tried before a jury, and the claims against the government were tried simultaneously before the court.

On January 24, 2005, a jury found for Manning on his Bivens claims, awarding over $6.5 million in damages against the two agents. The jury made specific findings that one or both of the agents fabricated or caused to be fabricated certain material evidence, and then concealed this and other material matters from Manning and the prosecutors who handled the cases. The jury found for the agents on the RICO claims.

On March 23, 2005, Manning moved to have judgment entered on the jury's verdict in the Bivens claims. Manning noted in the motion that, even though the FTCA claim was still pending before the court, a simultaneous entry of judgments on the FTCA claim and the Bivens claims might trigger the FTCA judgment bar. Defendants did not object to the motion. On March 25, 2005, the district court ordered the clerk to enter judgment in favor of Manning on the Bivens claims.*fn1

On September 26, 2006, the district court found in favor of the United States on Manning's FTCA claims. The court concluded that excluding the evidence fabricated by the FBI agents, probable cause still existed to prosecute Manning for both the kidnapping and the murder, thereby defeating the malicious prosecution claim. The court also found that Manning failed to meet his burden of persuasion on the intentional infliction of emotional distress claim. Following this ruling, the agents moved to vacate the judgment against them under Federal Rule of Civil Procedure 59(e), claiming that the FTCA judgment bar compelled vacatur of the prior judgment in the Bivens claims. The district court granted the motion and vacated the judgment against Buchan and Miller. This timely appeal followed.


Manning argues on appeal that the district court improperly interpreted ยง 2676 to nullify the jury's verdict on the Bivens claim. The FBI agents filed a conditional cross-appeal of the adverse jury verdict, arguing that, in the event that we reversed the district court's ruling on the judgment bar, the agents were entitled to judgment as a matter of law, as well as absolute or qualified immunity. We review questions of law, such as issues of ...

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