No Bivens Appeals Without Qualified Immunity

The Bivens question asks whether a damages action exists for a federal official’s unconstitutional conduct. In Wilkie v. Robbins, the Supreme Court held that courts of appeals can address the Bivens question as part of an appeal from the denial of qualified immunity. But the Bivens question standing alone has not been deemed immediately appealable. It must tag along with a qualified-immunity appeal.

In Himmelreich v. Federal Bureau of Prisons, the Sixth Circuit accordingly dismissed a pure Bivens appeal. The defendant in Himmelreich had not sought qualified immunity in the district court. She argued only that no Bivens remedy existed for her alleged conduct and appealed only the district court’s rejection of that argument. With no denial of qualified immunity, the Sixth Circuit lacked jurisdiction over the appeal.

The Himmelreich Litigation

Simplifying a bit, Himmelreich involved a First Amendment-retaliation claim against a prison official. The plaintiff, who was incarcerated in a federal prison, alleged that the defendant retaliated against him for filing a claim under the Federal Tort Claims Act. After several years of litigation, including multiple appeals, the defendant moved to dismiss the First Amendment retaliation-claim. In support of dismissal, the defendant argued only that no cause of action existed under Bivens. The defendant did not seek qualified immunity.

The district court denied summary judgment. The defendant then appealed to the Sixth Circuit.

No Bivens Appeals Without Qualified Immunity

The Sixth Circuit determined that it lacked jurisdiction over the appeal. In doing so, it rejected two possible grounds for appellate jurisdiction.

The court first held that it could not hear the appeal as a denial of qualified immunity. Granted, defendants have a right to appeal from the denial of qualified immunity. And courts can review the Bivens question as part of a qualified-immunity appeal.

But there must be a qualified-immunity appeal. The Bivens question tags along with that appeal. Defendants who do not seek qualified immunity cannot appeal from its denial. With no denial of qualified immunity to give the court of appeals jurisdiction, there is nothing for the Bivens question to piggyback on.

The defendant in Himmelreich didn’t ask for qualified immunity on the First Amendment-retaliation claim. (She raised immunity only in her reply in support of summary judgment, and the district court deemed the defense waived.) So there was no qualified-immunity hook for the court to exercise appellate jurisdiction over the Bivens question.

The Sixth Circuit also held that the Bivens question, standing alone, was not appealable via the collateral-order doctrine. To be appealable under that doctrine, a district court order must (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) be effectively unreviewable in an appeal from a final judgment. The Sixth Circuit determined that the Bivens issue failed the third requirement. Unlike qualified immunity, the Bivens question did not involve a potential immunity from suit:

[Bivens] does not grant defendants an entitlement not to stand trial. To the extent that defendants are concerned about litigating meritless cases, qualified immunity more than adequately protects government officials from the burdens of litigation.

And although the Bivens question is a relatively pure legal issue, that alone did not make it appealable.

A Pure Bivens Appeal

Himmelreich reminded me of the Third Circuit’s decision last summer in Mack v. Yost, which I called a pure Bivens appeal. The defendants in Mack had sought summary judgment on two grounds: a meritless request for qualified immunity, and a more serious argument that no Bivens remedy existed for their alleged conduct. The immunity request was meritless because the Third Circuit had already held in a prior appeal that the defendants were not entitled to qualified immunity, and nothing had changed in the interim that might alter that conclusion.

The district court rejected both arguments. The defendants then appealed. In that appeal, the defendants did not seriously challenge the district court’s denial of qualified immunity. They instead challenged the district court’s decision on the Bivens question.

The Third Circuit treated the case as a normal qualified-immunity appeal. The defendants had sought and been denied immunity, so they had a right to appeal. And in that appeal, the court of appeals could review the Bivens issue.

I thought the exercise of appellate jurisdiction in Mack was wrong. With no question over whether the defendants had violated clearly established law, there was no reason for the appeal. The attempted appeal in Himmelreich is even worse than that in Mack. At least the defendants in Mack asked for qualified immunity before appealing. They could then take a qualified-immunity appeal when all they really wanted was review of the Bivens issue.

Together, Mack and Himmelreich provide a blueprint for taking what are essentially pure Bivens appeals. The defendant need only make a non-frivolous request for qualified immunity alongside the Bivens argument. If the district court denies immunity, the defendant can then appeal and obtain review of only the Bivens question.

I find this troubling. No good comes from including the Bivens question within the scope of qualified-immunity appeals. Doing so merely adds to the cost, complexity, and delay that qualified-immunity appeals already cause. I’ve accordingly argued for excluding the issue from the scope of qualified-immunity appeals.

Himmelreich v. Federal Bureau of Prisons, 2021 WL 3088264 (6th Cir. July 22, 2021), available at the Sixth Circuit and Westlaw.