One More Rejection of Pure Bivens Appeals

In Fleming v. United States, the Eleventh Circuit became the fifth court of appeals to reject pure Bivens appeals. The court held that federal officials cannot immediately appeal the Bivens question without also appealing the denial of qualified immunity. Unlike some of the prior decisions, this one was unanimous. And it puts the government’s record at 0-5 on this issue.

Fleming provides a really nice overview of why the Bivens question should not be immediately appealable. The decision also offers some great discussion of the collateral-order doctrine’s third requirement—i.e., that an order be effectively unreviewable in an appeal after a final judgment. The Eleventh Circuit explained that this implicates both importance and urgency. In the court’s words, “[i]nterlocutory appeals are not for issues that are merely important; they are for issues that are important, now.”

The Litigation Over Pure Bivens Appeals

For a few years now, federal officials have been asking courts of appeals to allow for pure Bivens appeals. I’ve covered this development extensively on the site. Here are some posts with helpful background:

• A Pure Interlocutory Bivens Appeal?.
• No Bivens Appeals Without Qualified Immunity.
• The Ninth Circuit on Qualified-Immunity Appeals, the Bivens Question, and Pendent Appellate Jurisdiction.
• The Third Circuit Split on Pure Bivens Appeals
• Another Rejection of Pure Bivens Appeals.
• Yet Another Split Rejection of Pure Bivens Appeals.

Briefly, the Bivens question asks if a damages action exists for a federal official’s unconstitutional conduct. When defending a Bivens action, federal officials often raise both the Bivens question and qualified immunity. If the district court denies qualified immunity, those officials can immediately appeal that denial. And in 2007’s Wilkie v. Robbins, the Supreme Court said that appellate courts can review the Bivens question as part of a qualified-immunity appeal.

Recently, when a district court recognizes a Bivens remedy, some federal officials have tried to appeal just the Bivens question. That is, they don’t seek to appeal the denial of qualified immunity, even though doing so would provide a reliable path for appealing the Bivens question. They instead seek immediate review of only the decision recognizing a Bivens claim. And they argue that these decisions fall within the collateral-order doctrine.

The Rejection of Pure Bivens Appeals in Fleming

So far (and as explained in depth in the posts linked above), these efforts at immediate review of the Bivens question have failed. Fleming is the latest in this line of authority.

Under the collateral-order doctrine, district court orders are immediately appealable if they (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. Fleming gives a particularly insightful explanation of how the third requirement implciates both importance and urgency. The court “look[s] to the rationale for a doctrine, not just its effects, to understand the interests it protects and thus whether that interest warrants interlocutory appeal.” And that interest must be “not just substantial but also time bound.” In other words, “[i]nterlocutory appeals are not for issues that are merely important; they are for issues that are important, now.”

The Eleventh Circuit explained at length that the Bivens question does not implicate time-sensitive interests.

Insofar as the Bivens question implicates the conduct of federal officials, qualified immunity offers sufficient protection. The threat of litigation and liability can affect a federal official’s conduct. As the Eleventh Circuit noted, “[t]hat is, after all, the point”: to deter wrongful conduct by federal officials. But qualified immunity already addresses any concern about these burdens.

The primary concern with the Bivens question is separation-of-powers interests involving the courts and Congress. And those interests are not time sensitive. Recognizing a Bivens remedy does not cause immediate, irreparable harm to the legislature. And judicial expansion of immediate appeals via the collateral-order doctrine involves its own separation-of-powers concerns.

Fleming v. United States, 2025 WL 369221 (11th Cir. Feb. 3, 2025), available at the Eleventh Circuit and Westlaw