Motion to reopen proceedings under FedRCivP 60(b); McCurry ex rel Turner v Adventist Health Sys/Sunbelt, Inc; The Federal Tort Claims Act (FTCA); 28 USC § 1346(b)(1); Claim under Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics; The “judgment bar” in § 2676; Brownback v King

[This appeal was from the WD-MI.] The court affirmed the district court’s denial of plaintiff-King’s Rule 60(b) motion to reopen the judgment on his FTCA claim to retroactively withdraw that claim in an attempt to avoid § 2676’s judgment bar as to his Bivens claim. King sued the United States for physical abuse under the FTCA and sued the individual government employees under Bivens. Defendants were granted judgment on both claims. King chose to only appeal as to the Bivens claim. Thus, the judgment on the FTCA claim became final. The individual defendants in the Bivens action relied on § 2676’s judgment bar on appeal because the facts underlying King’s claims against them were the same as those underlying his claims against the United States. In Brownback, the Supreme Court held that the bar applies when the adverse judgment is based on a failure to meet the § 1346 requirements. On remand from the Supreme Court, the Sixth Circuit held that the judgment bar applied to Bivens claims that are brought in the same suit as FTCA claims. King subsequently filed a Rule 60(b) motion in the district court to reopen the FTCA judgment, seeking to retroactively withdraw the FTCA claim and avoid the judgment bar. But the district court denied the motion, reasoning “that King’s Rule 60(b) motion was based on ‘a straightforward claim of either attorney error or strategic miscalculation,’” which are not bases for post-judgment relief. The court found no abuse of discretion in this ruling. It agreed with the district court’s reliance on McCurry, which held that “claims of attorney error and even attorney malpractice, including strategic miscalculation or counsel’s misinterpretation, do not warrant an award of relief under Rule 60(b)(1) . . . and that this reasoning also forecloses relief under Rule 60(b)(6).” The court rejected King’s assertion that before Brownback, “it was clearly established and well settled (not just arguable) that an adverse judgment for failure to meet the cause-of-action requirement of the FTCA in” § 1346(b)(1) did not trigger the judgment bar, concluding that his premise was wrong.