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                                              PUBLISHED

                               UNITED STATES COURT OF APPEALS
                                   FOR THE FOURTH CIRCUIT


                                               No. 21-7609


        JUSTIN M. LONGWORTH,

                            Plaintiff – Appellant,

                     v.

        A. MANSUKHANI; ANTHONY T. SCARANTINO; PATRICK BURRELL;
        MATTHEW W. HAUGHT; SHERRY M. BECK,

                            Defendants – Appellees.



        Appeal from the United States District Court for the Eastern District of North Carolina, at
        Raleigh. Louise W. Flanagan, District Judge. (5:19-ct-03199-FL)


        Argued: January 29, 2025                                         Decided: April 16, 2025


        Before AGEE and RICHARDSON, Circuit Judges, and Michael Stefan NACHMANOFF,
        United States District Judge for the Eastern District of Virginia, sitting by designation.


        Dismissed by published opinion. Judge Nachmanoff wrote the opinion, in which Judge
        Agee and Judge Richardson joined.



        ARGUED: Thomas Ross Brugato, COVINGTON & BURLING, LLP, Washington, D.C.,
        for Appellant. Jonathan Silberman, OFFICE OF THE UNITED STATES ATTORNEY,
        Raleigh, North Carolina; Frederick C. Kieser, UNIVERSITY OF VIRGINIA SCHOOL
        OF LAW, Charlottesville, Virginia, for Appellee. ON BRIEF: Samuel Weiss, Oren
        Nimni, RIGHTS BEHIND BARS, Washington, D.C.; David M. Zionts, Matthew Quallen,
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        COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Michael F. Easley,
        Jr., United States Attorney, Sharon C. Wilson, Assistant United States Attorney, for
        Appellees. J. Scott Ballenger, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
        Charlottesville, Virginia, for Appellee Sherry M. Beck.




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        MICHAEL S. NACHMANOFF, District Judge:

               A party injured by a federal employee generally has two avenues of recourse. He

        may pursue a claim against the employee “directly under the Constitution, as recognized

        in Bivens,” or against the United States for a cognizable tort under the Federal Tort Claims

        Act (“FTCA”). Unus v. Kane, 

 (4th Cir. 2009). These claims are not

        exclusive and may be brought together or in sequential suits. But a plaintiff who pursues

        both remedies “runs the risk that [the] constitutional claim will be subject to the FTCA’s

        ‘judgment bar’ provision.” 

 (citing 

). The judgment bar provides that

        an FTCA judgment is 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.” 

. In other words, if a party obtains a judgment on his FTCA

        claim, he can no longer pursue a Bivens action based on the same conduct.

               That is precisely the scenario Justin Longworth faces. A federal inmate alleging

        abuse by Federal Bureau of Prison (“FBOP”) officials, Longworth filed two separate

        lawsuits: the first presented a Bivens claim directly against those officials, and the second

        an FTCA claim against the United States. The district court dismissed both claims, and

        Longworth appealed only the Bivens dismissal. The question before us is simple: does the

        entry of judgment on Longworth’s FTCA claim “bar” his Bivens appeal? We conclude that

        it does. For that reason, the appeal must be dismissed.




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                                                      I.

               Justin Longworth was an inmate at the Federal Correctional Institution in Butner,

        North Carolina (“FCI Butner”) from July 22, 2016, until January 16, 2019. J.A. 47, 52, 54.1

        Longworth claims that while there he faced repeated sexual harassment and abuse. 

        Specifically, Longworth alleges that during his work assignment as a plumber, he came

        into frequent contact with Defendant Sherry M. Beck, an FBOP correctional officer who

        served as the Secretary of Facilities and managed payroll for all inmate employees. J.A. 52.

        Longworth claims that Defendant Beck took an inappropriate interest in him and engaged

        in daily aggressive sexual harassment and abuse including forced oral sex, fondling and

        groping of the genitals, kissing, and biting. 

 Longworth did not immediately report

        Defendant Beck’s conduct because he feared retaliation. J.A. 53.

               According to Longworth, Defendants Andrew Mansukhani (warden of FCI-Butner

        Medium), Anthony T. Scarantino (correctional institution administrator at FCI-Butner),

        Patrick Burrell (plumber for the FCI-Butner facilities department), and Matthew W.

        Haught (maintenance mechanic for the FCI-Butner facilities department) initially did

        nothing to stop or report Defendant Beck’s abuse. J.A. 48–49, 53. Eventually, Defendant

        Haught reported Defendant Beck to her facilities supervisors, but failed to report the

        conduct to his own supervisors, a Special Investigative Agent, or the wardens (Defendants




               1
                 In reviewing a motion to dismiss, we accept as true the factual allegations set forth
        in the complaint and draw all reasonable inferences in the light most favorable to the
        plaintiff. Phillips v. Pitt Cnty. Mem’l Hosp., 

 (4th Cir. 2009).

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        Mansukhani and Scarantino) as required by prison policy. J.A. 53. Longworth was then

        fired from his work assignment and placed in solitary confinement. J.A. 54.

               After Longworth was moved to solitary confinement, he decided to report

        Defendant Beck’s conduct to Special Investigative Agent Sean Kearney. 

 Following this

        report, an investigation ensued, Defendant Beck was terminated, and Longworth was

        transferred to a low security Federal Correctional Institution in Petersburg, Virginia (“FCI

        Petersburg Low”). J.A. 47, 54. But neither Longworth’s transfer nor Defendant Beck’s

        termination abated the misconduct—Longworth claims that Defendant Beck continued to

        harass him at FCI Petersburg Low by sending him sexually explicit and threatening letters.

        J.A. 55.

                                                      II.

               On July 2, 2019, Longworth commenced this action in the Eastern District of North

        Carolina, asserting claims for violations of his civil rights pursuant to Bivens v. Six

        Unknown Named Agents of Federal Bureau of Narcotics, 

 (1971), and related

        state law claims. J.A. 87.2 Longworth alleged that Defendant Beck sexually assaulted him

        in violation of the Fourth and Eighth Amendments, and that the remaining Defendants

        acted with deliberate indifference in violation of the Eighth Amendment. J.A. 95.

        Defendants Mansukhani, Scarantino, Burrell, and Haught moved to dismiss.3 J.A. 87.




               2
                 Longworth filed an amended complaint, operative here with respect to his Bivens
        action, on June 1, 2020. J.A. 88.
               3
                   Defendant Beck, proceeding pro se at the time, did not file a motion to dismiss.

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        Proceeding under the framework established by the Supreme Court in Ziglar v. Abbasi,

        

 (2017), the district court found that both Longworth’s Fourth Amendment

        and Eighth Amendment claims presented “new contexts where they have ‘no analogue in

        the Supreme Court’s prior Bivens cases.’” J.A. 95 (quoting Tun-Cos v. Perrotte, 

 (4th Cir. 2019)). Continuing to the “second inquiry” under Abbasi, the district

        court found that special factors counseled hesitation in extending Bivens to this context.4

        J.A. 99–102. Accordingly, the district court granted Defendants’ motion to dismiss and

        entered its dismissal order on September 21, 2021.5 J.A. 102, 104. On November 11, 2021,

        Longworth noticed this appeal.6 J.A. 105–106.

              But prior to Longworth’s appeal (and even prior to the district court’s Bivens

        dismissal order), Longworth filed a separate complaint, on August 16, 2021, under the

        FTCA, alleging that the United States was liable for its employees’ negligence.7 J.A. 108.

        Longworth’s FTCA complaint alleged the same underlying facts as his Bivens complaint—


              4
                 The special factors inquiry “must concentrate on whether the Judiciary is well
        suited, absent congressional action or instruction, to consider and weigh the costs and
        benefits of allowing a damages action to proceed.” Abbasi, 

. The district
        court outlined several special factors but emphasized two in particular that counseled
        hesitation: (1) the alternative remedial scheme available to Longworth through the FBOP’s
        administrative remedy program, and (2) Congress’s failure to create a damages remedy
        despite enacting legislation in the prisoner sexual abuse context. J.A. 99–102.
              5
                The district court also dismissed the claims against Defendant Beck pursuant to 

(e)(2)(B)(ii). J.A. 103–104.
              6
               Longworth does not appeal the dismissal of his Fourth Amendment claims. See
        Opening Br. 9 n.3.
              7
                See Justin M. Longworth v. United States of America, 5:21-ct-03242-FL
        (E.D.N.C.).

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        that Beck sexually assaulted him and negligently caused him emotional distress, and that

        other FBOP officials (Mansukhani, Scarantino, Burrell, and Haught) were negligent in

        their supervision and retention of Beck. J.A. 117. On September 29, 2022, the district court

        granted the United States’ motion to dismiss for lack of subject matter jurisdiction, finding

        that Longworth had not adequately pled that Beck was acting within her scope of

        employment during the alleged misconduct (one of the six elements required to bring a

        meritorious FTCA claim). J.A. 124, 126.8 Longworth did not appeal the judgment on his

        FTCA claim.

                                                    III.

               The question now facing the Court is whether the district court’s FTCA judgment

        precludes this Bivens appeal. The FTCA judgment bar provides that an FTCA judgment is

        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.” 

. This Court specifically asked the parties to address whether the FTCA’s judgment

        bar applies retroactively. And the parties addressed that question in their supplemental

        briefs. But the Court need not resolve that question today because there is nothing

        “retroactive” about the judgment bar’s effect on this case.

               The FTCA judgment bar “preclude[s] a Bivens claim against a government

        employee when a judgment has been entered on an FTCA claim arising out of the same


               8
                 The Court also found that even if the Court had subject matter jurisdiction,
        Longworth’s claims were deficient under Rule 12(b)(6) as “defendant cannot be held
        vicariously liable for tortious acts taken outside the scope of employment.” J.A. 128–135.

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        actions, transactions, or occurrences as the Bivens claim.” Unus, 

 (internal

        quotation and citation omitted). That is what we have here. A judgment (on the merits)9

        has been entered with respect to Longworth’s FTCA claim, but Longworth wishes to

        continue to pursue his Bivens claim. Because that claim is based on the same actions as his

        FTCA claim, however, it is now precluded.

               Longworth urges this Court to interpret the text of § 2676 “to apply solely to actions

        filed after or contemporaneous with the FTCA action, not appeals of separate, earlier-filed

        actions.” Appellant’s Suppl. Br. 12 (emphasis added). In Longworth’s view, application of

        the judgment bar to this matter implicates retroactivity because the Bivens suit was filed

        first. We disagree. There is nothing “retroactive” about application of the FTCA judgment

        bar here. Longworth’s Bivens claim (whether or not it was filed first) is still on appeal. It

        therefore remains an “action” that is subject to the bar. See, e.g., Brownback, 592 U.S. at

        220–21 (Sotomayor, J., concurring) (“An ‘action’ refers to the whole of the lawsuit.”);

        Black’s Law Dictionary (12th ed. 2024) (defining “action” as a “civil or criminal judicial

        proceeding” and “‘action’ in the sense of a judicial proceeding includes . . . any other




               9
                 The FTCA judgment bar is only triggered by a “final judgment on the merits.”
        Brownback v. King, 

 (2021). Because the district court determined that
        Beck was not acting within the scope of her employment—and that question goes to the
        one of the six elements of a meritorious FTCA claim—the dismissal order was “on the
        merits.” See 

 (“[W]here, as here, pleading a claim and pleading jurisdiction
        entirely overlap, a ruling that the court lacks jurisdiction may simultaneously be a judgment
        on the merits that triggers the judgment bar.”). The judgment bar is therefore appropriately
        triggered here.

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        proceeding in which rights are determined”). Put simply, the plain language of 

 could not be clearer: this action cannot proceed.

                                                   IV.

              For the foregoing reasons, we dismiss the instant appeal.

                                                                                   DISMISSED




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