A divided Tenth Circuit held that the Bivens question is not independently appealable via the collateral-order doctrine; it must be part of a qualified-immunity appeal.
May 9, 2024
The federal government appears to be on a mission to get immediate appeals for orders recognizing a Bivens remedy. So far, those efforts have been unsuccessful. Two courts of appeals—the Third and the Sixth Circuits—have rejected these pure Bivens appeals.
In Mohamed v. Jones, the Tenth Circuit became the third. Like the Third and Sixth Circuits before it, the Tenth Circuit recognized that the Bivens question does not exist to shield federal officials from the burdens of litigation. That’s qualified immunity’s job. The separation-of-powers concerns that Bivens implicates also do not warrant an immediate appeal. And government defendants can easily secure review of the Bivens issue via an appeal from the denial of qualified immunity.
Mohamed is not the last we’ll see of this issue. There are at least two more pending cases in which the federal government is trying to appeal the Bivens question. And the Tenth Circuit’s decision came with a dissent. I will not be surprised when the government seeks rehearing en banc or, more likely, cert.
Some Background on Qualified-Immunity Appeals & the Bivens Question
Federal officials, like their state-government counterparts, can seek qualified immunity. Also like their state counterparts, federal defendants can immediately appeal from the denial of qualified immunity. And in those appeals, federal defendants can raise an additional issue: the Bivens question.
42 U.S.C. § 1983—the normal basis for an action against state officials—does not apply to federal officials. Plaintiffs suing federal officials for constitutional violations must instead rely on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which the Supreme Court recognized a constitutional right to relief for federal officials’ misconduct. But Bivens does not provide a remedy for all unconstitutional conduct. So courts must often ask the Bivens question: does a cause of action exist for this alleged violation?
In Wilkie v. Robbins, the Supreme Court held that the courts of appeals can address the existence of a Bivens action as part of a qualified-immunity appeal. Since then, courts of appeals have regularly addressed Bivens issues in these appeals.
The Pursuit of Pure Bivens Appeals
Apparently unsatisfied with the ability to appeal from the denial of qualified immunity, federal defendants have recently been asking courts to allow an immediate appeal from decisions recognizing a Bivens remedy. In at least five cases, defendants have not sought to appeal from the denial of qualified immunity—or not sought qualified immunity at all—and appealed from a decision that recognized a Bivens remedy.
So far, courts have rejected these efforts. In Himmelreich v. Federal Bureau of Prisons, the Sixth Circuit held that the Bivens question was appealable only as part of a qualified-immunity appeal. In Graber v. Doe II, the Third Circuit reached the same conclusion.
The Mohamed Litigation
Mohamed is the most recent failed attempt to secure these appeals. Simplifying only a little bit, the plaintiff in Mohamed alleged that several prison guards at a federal prison beat him while others stood by and watched. He sued the the guards. Relying on the Supreme Court’s decision in Bivens, the plaintiff sought relief for violations of his Eighth Amendment rights.
The defendants responded with a motion to dismiss. They argued that Bivens did not allow a remedy for their unconstitutional conduct. The defendants did not, however, seek qualified immunity.
The district court held that a Bivens remedy existed and denied the motion to dismiss. The district court then denied reconsideration, rejecting the defendants’ arguments that the Supreme Court’s 2022 decision in Egbert v. Boule foreclosed any relief.
The defendants then appealed. On appeal, they argued only the Bivens issue: that no Bivens remedy existed for their conduct. Again, the defendants did not raise qualified immunity.
Rejecting Pure Bivens Appeals
The Tenth Circuit held that the recognition of a Bivens remedy is not immediately appealable via the collateral-order doctrine. To be appealable via that doctrine, a district court decision must (among other things) be effectively unreviewable on an appeal from a final judgment. And the Bivens question could be effectively reviewed in a final-judgment appeal.
The reason had to do with the purpose of the Bivens question. Unlike qualified immunity, the Bivens question does not exist to shield government officials from the burdens of litigation. That’s qualified immunity’s job. Bivens is instead analogous to § 1983. It exists to provide a remedy for constitutional violations. And “qualified immunity enables both Bivens and § 1983 defendants to do their jobs without unduly second-guessing their exposure to liability or trial.”
All the government had in response were vague invocations of separation-of-powers concerns. But those don’t warrant an immediate appeal:
Their abstract invocation of separation of powers falls short of what the Supreme Court requires to create a new category of interlocutory appeals in light of the countervailing considerations we identify here, including that expanding the collateral order doctrine in the face of § 1291’s final judgment rule raises separation of powers concerns.
Indeed, “using a generalized separation of powers rationale to expand the collateral order doctrine . . . would risk ever-increasing judge-made categories for interlocutory appellate review.” The Bivens question is thus different from absolute presidential immunity, which the Supreme Court has held is immediately appealable. Further, the separation-of-powers concerns underlying Bivens involve the separation of the legislative and judicial branch, not some qualified-immunity-esque concern for federal officials.
Judge Tymkovich’s Dissent
Judge Tymkovich dissented. His dissent seemed to be heavily influenced by his belief that Bivens is dead. He even invoked the opening line of A Christmas Carol: “Marley was dead, to begin with. There is no doubt whatever about that.”
On the collateral-order doctrine, Judge Tymkovich thought that the harm to the separation of powers from an erroneous Bivens decision warranted an immediate appeal. As he saw things, such an error “irreparably harms every branch of government, the litigants, and the public”:
It irreparably harms the judiciary and the claimants by “hold[ing] out [a] kind of false hope, and in the process invit[ing] still more protracted litigation destined to yield nothing.” It irreparably harms the legislature by “arrogating legislative power” and upsetting “the careful balance of interests struck by the lawmakers.” It irreparably harms the executive branch, both abstractly by impairing government functioning, interfering with executive autonomy, and chilling high-level policy making, and tangibly by imposing “time and administrative costs attendant upon intrusions resulting from the discovery and trial process.” Finally, its zombie existence harms the public writ large because, absent its formal abrogation, Congress has no incentive to legislate in the space. Instead, potential claimants are left with a brain-dead cause of action sustained by life support.
(Citations omitted.) And “[b]ecause the judicial process itself is the injury, these harms are a bell that cannot be unrung later in the litigation.” An immediate appeal was thus necessary.
As for the other two collateral-order requirements, Judge Tymkovich thought they were also met. “Liability for a claim and the cognizability of a cause of action are completely separate questions.” And “[a] decision authorizing a Bivens cause of action conclusively determines the judicial cognizability of that claim.”
Rejecting Bivens Appeals
Frequent readers of this blog are probably not surprised that I side with the majority on this one. I’ve argued that the Bivens question should not be part of qualified-immunity appeals. Indeed, I’ve argued that there should not be a right to appeal from the denial of qualified immunity.
But even accepting both of those rules, pure Bivens appeals don’t make sense.
Insufficient Separation
For one thing, there is no separation from the merits. Bivens concerns the availability of a remedy. And the availability of a remedy is a core part of a claim’s merits.
I’m thus baffled by Judge Tymkovich’s assertion that “[l]iability for a claim and the cognizability of a cause of action are completely separate questions.” They’re separate only in the sense that we as lawyers can almost always separate issues from one another. We can say, for example, that the existence of a duty and whether a defendant breached that duty are completely separate questions. But they both go to whether that defendant was negligent.
Qualified immunity is at least an affirmative defense and thus arguably separate from a claim’s merits. (Though I doubt it.) Questions about whether a theory of recovery exists or what facts must be proved for that theory are paradigmatic merits questions. So there’s no separation here.
Effectively Reviewable
Further, the Bivens question can be effectively reviewed after a final judgment.
The separation of powers is, of course, important. And an erroneous district court decision on the Bivens question can cause harms. But nearly all erroneous district court orders impose some harm. Sometimes those harms are serious and not perfectly correctable in a final-judgment appeal. Consider, for example, an erroneous denial of a motion to dismiss for a lack of subject-matter jurisdiction. But those are the costs of the final-judgment rule. Deviating from that rule require something more than the normal harms of an erroneous district court decision.
The government doesn’t have this “something more” in these cases. Its argument is essentially that (1) the Bivens question implicates the separation of powers, and (2) the separation of powers is sufficiently important to warrant an immediate appeal. In making this argument, the government makes much of the Supreme Court’s statement in Will v. Hallock that the separation of powers is a “particular value of a high order” that can warrant an immediate appeal.
I don’t buy it. Will invoked the separation of powers to justify immediate appeals from the denial of absolute presidential immunity. And absolute presidential immunity is an interest in avoiding not just litigation but the burdens and uncertainties of trial. Bivens does not provide a similar right to avoid trial. So the separation-of-powers concerns stand alone. And Will did not say that separation-of-powers concerns, standing alone, warrant an immediate appeal.
This isn’t to say that an immunity is required for a collateral-order appeal. It’s not. But there must be something more to an issue for it to be effectively unreviewable—some irreparable harm. That’s missing in these cases. The harm of an erroneous Bivens decision might be great. (Though we see in these cases the same sort of hypothetical harms—such as federal officials’ seeing others being sued and then themselves worrying about being sued, or federal officials’ personally paying damages—as we see in qualified-immunity cases. Like qualified immunity, reality might be different.) But it’s still reparable in a final-judgment appeal.
Inviting More Appeals
Also, courts considering collateral-order issues must think of not just the appealability of the issue before them. That’s because extensions of the collateral-order doctrine invite new efforts to appeal other kinds of orders.
That’s a problem in these cases. There’s no apparent limit to the government’s separation-of-powers argument. All sorts of erroneous district court orders can implicate the separation of powers, from rulings on dispositive motions to rulings on discovery issues. Accepting the government’s argument for Bivens appeals invites future efforts to appeal from other decisions implicating the separation of powers.
Indeed, the argument isn’t even limited to the separation of powers or government appeals. Again, the government is making these cases all about the importance of the appealed issue. Most litigants think that the issues in their case are important. And if courts allow Bivens appeals, they invite all sorts of litigants to seek immediate appeals on issues important to those litigants. Without some additional reason for allowing an appeal—say, a right to avoid trial, or an issue that will be mooted by subsequent events—importance alone is not enough.
Alternative Avenues for Review
Atop all of this are the well-established alternative avenues for review. All government officials need to do to appeal the Bivens question is seek qualified immunity and—if immunity is denied—appeal from the immunity denial. Qualified-immunity appeals thus provide an adequate means to review these issues. Atop those appeals are certified appeals under 28 U.S.C. § 1292(b) and, in extreme cases, mandamus. These three are more than sufficient to permit sufficient appellate review.
Mohamed v. Jones, 2024 WL 2003439 (10th Cir. May 7, 2024), available at the Tenth Circuit and Westlaw