A Pure Interlocutory Bivens Appeal?

The Bivens question asks whether an implied constitutional remedy exists for a federal official’s unconstitutional conduct. The Supreme Court has held that this question is within the scope of a qualified-immunity appeal. That is, in an interlocutory appeal from the denial of qualified immunity, the court of appeals can address whether a Bivens remedy exists. But the Bivens question standing alone has not been deemed immediately appealable. It must tag along with an appeal from the denial of qualified immunity.

What if there are no grounds for a qualified-immunity appeal? The Third Circuit seemed to overlook this issue in last week’s Mack v. Yost. In what looked like a qualified-immunity appeal, the Third Circuit held that no Bivens remedy existed for First Amendment retaliation that occurred in a federal prison. But a few years ago, in a prior appeal in the same case, the Third Circuit held that the plaintiff had pleaded a violation of clearly established law and rejected the defendants’ request for immunity. Nothing seems to have changed since that prior decision that would have affected immunity. So it looks like there were no new grounds for seeking immunity. The Third Circuit nevertheless treated the case as a normal qualified-immunity appeal, concluded that no Bivens remedy existed, and reversed. Mack thus looks like a pure interlocutory Bivens appeal.

Appealing the Bivens Question

The normal statute for bringing civil-rights actions—18 U.S.C. § 1983—does not create a cause of action against federal officials. When federal officials violate a plaintiff’s constitutional rights, that plaintiff might be able to resort to an implied constitutional cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. But a Bivens remedy is not available in all circumstances. Courts accordingly must sometimes ask the “Bivens question”: does an implied constitutional cause of action exist in this context?

The Supreme Court has also held that appellate courts can address the Bivens question as part of a qualified-immunity appeal. When a federal defendant appeals from the denial of qualified immunity, that defendant can ask the appellate court to hold that no Bivens remedy is available. The Supreme Court said that the existence of a Bivens remedy was a necessary antecedent to qualified immunity. That’s not quite right. But, at least for now, it’s the rule.

Although the Bivens question can be appealed alongside the denial of qualified immunity, the Supreme Court has not held that the Bivens question is actually part of the qualified-immunity inquiry. The Bivens question instead tags along with the qualified-immunity appeal via pendent appellate jurisdiction. So what happens when there’s no grounds for appealing from the denial of qualified immunity?

The Mack Litigation

Mack involves a unique procedural posture, reaching the court of appeals twice before last week’s most recent decision.

The First Two Mack Appeals

While serving time in a federal prison, the plaintiff in Mack worked at the prison commissary. He alleged that the prison guards supervising the commissary harassed him during this time because he was a Muslim. The plaintiff raised this harassment with the guards’ supervisor. Within two weeks, the plaintiff was fired from the commissary. After exhausting his internal remedies, the plaintiff sued the prison officials for (among other things) First Amendment retaliation.

The district court initially dismissed the complaint. The plaintiff appealed, and in this first appeal the Third Circuit reversed because the plaintiff should have had an opportunity to amend.

On remand, the district court again dismissed the complaint. As relevant to the present discussion, the district court concluded that the plaintiff failed to state a First Amendment-retaliation claim. Again, the plaintiff appealed. And again, the Third Circuit reversed. In the course of reversing, the Third Circuit held that a Bivens remedy existed for the plaintiff’s allegations of First Amendment retaliation. The Third Circuit also held that the defendants were not entitled to qualified immunity. “[I]t was clearly established that inmates have a right to be free from retaliation for exercising their First Amendment rights.” The Third Circuit accordingly remanded for further proceedings.

Post-Ziglar v. Abbasi

After that remand, the Supreme Court decided Ziglar v. Abbasi. Ziglar ultimately held that no Bivens remedy existed for prison officials’ abuse of people held in federal custody. The Court did so after emphasizing the need to ask the Bivens question anytime a case arises in a “new context.” The Court defined “new context” so broadly (and vaguely) that courts might have to address the Bivens question in nearly every suit against federal officials. According to the Court, “even a modest extension is still an extension.” And differences that were “perhaps small, at least in practical terms,” “easily satisfied” the new-context inquiry.

After Ziglar, the defendants in Mack moved for summary judgment. They argued that Ziglar changed the Bivens analysis enough to undermine the Third Circuit’s decision in the second Mack appeal. Under that new analysis, they argued, no Bivens remedy existed. The district court rejected this argument. It held that the plaintiff’s claim did not arise in a new context. So no Bivens inquiry was necessary.

The defendants also sought qualified immunity. The district court rejected that, too. In the course of doing so, the district court explained that the defendants had only rehashed already-rejected arguments:

Defendants—again reiterating arguments already rejected by the Third Circuit—next assert that [they] are entitled to qualified immunity. . . . Defendants have not offered any new arguments now and do not provide any new facts or law to distinguish the summary judgment stage from the motion to dismiss stage of this litigation.

As the district court saw things, the Third Circuit had “unequivocally concluded that [the plaintiff] sufficiently pleaded the violation of a clearly established constitutional right.” “Because the facts before [the district court] on summary judgment [were] not materially distinguishable from those before the Third Circuit at the motion to dismiss stage and the law remains unchanged,” the district court again held that immunity did not apply.

The defendants then appealed.

The Pure Bivens Appeal

The Third Circuit treated the case as a standard qualified-immunity appeal, the scope of which included the Bivens question. The court of appeals held that the plaintiff’s claims arose in a new context, requiring a fresh Bivens inquiry. And according to the Third Circuit, no Bivens remedy was available in the context of Mack.

But I don’t understand how the court had appellate jurisdiction. More specifically, I don’t see how the defendants in Mack had any grounds to seek qualified immunity and then appeal from its denial. In the second Mack appeal, the Third Circuit held that the plaintiff pleaded a violation of clearly established federal law. According to the district court, nothing changed after the second appeal that would affect immunity. If the plaintiff had alleged a clearly established violation of federal law before Ziglar, he did after Ziglar, too.

Any post-Ziglar uncertainty over the availability of a Bivens remedy does not change this. Although the Bivens question can be addressed alongside qualified immunity, it’s separate from qualified immunity itself. Under the Bivens regime, it’s entirely possible for a federal defendant to violate clearly established federal law (and thus not be entitled to immunity), but for no remedy to exist for that violation. As I explained in a recent essay on Bivens and qualified-immunity appeals, you can see this by imagining that a state (not federal) defendant performed the alleged acts. If this imaginary state official’s conduct would violate clearly established federal law, then the federal official’s would, too. Nowhere in that analysis do you need to ask whether a remedy exists. So deciding qualified immunity does not require addressing the Bivens question.

Granted, there might be uncertainty about whether a Bivens remedy is available. But that uncertainty does not affect the clarity of any constitutional violations. So although the Bivens question might be able to tag along with a qualified-immunity appeal, an appeal that raises only the Bivens question is not itself a qualified-immunity appeal. If the district court was correct that there were no new grounds for seeking immunity, then as a practical matter defendants in Mack appealed only to challenge the district court’s decision on the Bivens issue. In other words, Mack looks like a pure Bivens appeal.

Mack v. Yost, 2020 WL 4459994 (3d Cir. Aug. 4, 2020), available at the Third Circuit and Westlaw.