Pesnell

Opinion by Judge HUG; Partial Concurrence and Partial Dissent by Judge CLIFTON-

This case involves the issue of when an action brought under the Federal Tort Claims Act (“FTCA”) bars a later proceeding against the federal employees whose *1160 acts or omissions gave rise to the FTCA claims. We hold that the FTCA claims were dismissed for lack of jurisdiction and that the subsequent claims against the federal employees are not barred. We reverse the district court’s dismissal of the subsequent action on the ground of procedural bar and remand for consideration of the remaining issues in the case. This case also involves a request for recusal of the district judge; we affirm the denial of that request.

I.

Background

Pesnell long contended that he owned two million acres of land in California. His claim to title depended upon records dating back to the Mexican-American War. In 1998, the United States brought a quiet title action against Pesnell and others. In 1999, the district court entered judgment for the United States. That ruling extinguished Pesnell’s claims to title of the real property. United States v. Sierra Alpine, CV 98-585-ABC (C.D.Cal.1999).

In 2000, Pesnell…

concurring in part and dissenting in part:

“Jurisdiction,” the Supreme Court has observed, “is a word of many, too many, meanings.” Arbaugh v. Y & H Corp., 546 U.S. 500 , 126 S.Ct. 1235, 1242 , 163 L.Ed.2d 1097 (2006) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 , 118 S.Ct. 1003 , 140 L.Edüd 210 (1998)). The majority opinion concludes that a dismissal based on lack of “jurisdiction” does not trigger the Federal Tort Claims Act (FTCA) judgment bar under 28 U.S.C. § 2676 . The simplicity of that approach is appealing, but I disagree with the logic behind it and conclude that it paints with too broad a brush. Perhaps more importantly, I believe that both in adopting that approach and in reaching its conclusion regarding the judgment bar, the majority opinion is inconsistent with our court’s precedent in Gasho v. United States, 39 F.3d 1420 (9th Cir.1994). Thus, I respectfully dissent, in part.

I.

I agree completely with the majority opinion in affirming the denial of Pesnell’s motion for recusal. I also agree with the conclusions reached by the majority opinion that (1) Pesnell’s current claims other than for misrepresentation are not barred by the previous…

I.

Background

Pesnell long contended that he owned two million acres of land in California. His claim to title depended upon records PESNELL v. ARSENAULT 7453 dating back to the Mexican-American War. In 1998, the United States brought a quiet title action against Pesnell and others. In 1999, the district court entered judgment for the United States. That ruling extinguished Pesnell’s claims to title of the real property. United States v. Sierra Alpine, CV 98-585-ABC (C.D. Cal. 1999).

In 2000, Pesnell brought an action against the United States and several federal agencies in the federal district court in Arizona. Pesnell v. United States, CV 00-0399-JCC (D. Ariz. 2000) (“Pesnell I”). In that action, Pesnell brought claims pur- suant to the FTCA, 28 U.S.C. § 1346(b)(1).1 Pesnell based his basic contention on two incidents. The first incident involved research allegedly costing $150,000. He did considerable research to establish his claim to title to the two million acres. Pesnell loaned this research to federal agents in 1988. The agents promised to return the research, but never did. Pesnell, therefore, had to reconstruct the research. The second incident…