In Williams v. Fleming, No. 09-2410, the Seventh Circuit dealt with plaintiff's claim against a bank, the US, and an associate examiner with the FDIC brought under the Federal Tort Claims Act. Asserting various causes of action, plaintiff claimed that the bank's decision to stop making loans to him was due to an FDIC's associate examiner's racially motivated bias toward plaintiff and other African-Americans.
The court affirmed the district court's conclusion but based on a different reason ... that the proper inquiry is not one of jurisdiction but whether the United States has a defense to the suit. Thus, because the case was dismissed pursuant to section 2680(h), the claim was not dismissed for lack of jurisdiction, but for the existence of a defense. As such, since the dismissal was on the merits, the conclusion that plaintiff's remaining Bivens action was barred was correct.
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