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Supreme Court hears arguments on serving notice, Federal Tort Claims Act
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Supreme Court hears arguments on serving notice, Federal Tort Claims Act

The US Supreme Court on Monday heard oral arguments for both Niz-Chavez v. Barr and Brownback v. King, concerning serving notice and a judgment bar under the Federal Tort Claims Act, respectively.

The issue on appeal in Niz-Chavez was whether, to serve notice in accordance with 8 USC § 1229(a) and trigger the stop-time rule, the government must serve one specific document including all information identified in Section 1229(a), or whether the government could serve that information through multiple documents over a longer period of time. The petitioner argued that, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), “a notice” was a specific notice document. The justices raised the question of whether the notice had to be one specific document, or whether petitioner was arguing that the notice just had to be provided together.

The government argued for a two-step notice process, which petitioner argued was authorized before the IIRIRA and specifically not included within the IIRIRA. The Board of Immigration Appeals argued that Section 1229(a) requirement, based upon the plain language, permitted written notice to be provided in two documents: an NTA form and a notice of hearing. The government also argued that, under Chevron step two, it was entitled to win.

The issue in Brownback was whether a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, brought by the same claimant and based on the same injuries, was barred by a final judgment in favor of the US in an action brought under Section 1346(b)(1) of the Federal Tort Claims Act (FTCA). The petitioner argued that the judgment “unambiguously” precluded the action and that the appeals court only refused to apply the judgment bar due to two incorrect propositions that were previously rejected by the Supreme Court: (1) that when the US prevails in an FTCA action, the district court must dismiss for lack of subject matter jurisdiction and (2) a jurisdictional dismissal does not trigger the judgment bar.

Respondent argued that the judgment did not preclude the action because Section 2676 imported the common law definition of res judicata. Res judicata was never applied to claims brought together in a single action. Additionally, respondent argued that the judgment bar does not apply to claims dismissed for lack of jurisdiction, because Section 1346 restricts FTCA jurisdiction to actions satisfying six elements.