The Third Circuit Split on Pure Bivens Appeals

In Graber v. Doe II, a panel of the Third Circuit split on whether federal officials could immediately appeal the Bivens question without a qualified-immunity appeal. It’s the second decision in recent memory to reject a pure Bivens appeal. And this time, at least one judge was willing to hold that the Bivens issue was immediately appealable via the collateral-order doctrine.

The Graber Litigation

The plaintiff in Graber alleged that a Secret Service agent wrongfully arrested him. In response, the agent moved to dismiss, arguing that there was no cause of action under the Supreme Court’s decision in Bivens v. Six Unknown Named Agends of the Federal Bureau of Narcotics. (Bivens and subsequent cases instruct courts on how to determine if a damages action exists for a federal official’s unconstitutional conduct.) The district court denied that motion. Some time later, the district court rejected the agent’s qualified-immunity defense, concluding that more factual development was needed.

The agent then appealed. But at oral argument before the Third Circuit, the agent waived any challenge to the denial of immunity. He asked the court to address only whether a cause of action existed under Bivens.

Appealing Qualified-Immunity Denials & the Bivens Question

Government officials can immediately appeal from the denial of qualified immunity. 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.

No court (at least to my knowledge) has ever held that the Bivens question itself is immediately appealable. The Sixth Circuit’s decision in Himmelreich v. Federal Bureau of Prisons provides a recent example of a court rejecting this proposition. The defendant in Himmelreich never sought qualified immunity, arguing only that no Bivens remedy existed for her alleged conduct. The Sixth Circuit held that the defendant could not appeal from the district court’s rejection of that defense. The court explained that the Bivens question is part of the qualified-immunity analysis. Without a denial of qualified immunity, there is no basis for appellate jurisdiction and thus no power to review the Bivens question.

The closest the courts of appeals have come to a pure Bivens appeal is probably the Third Circuit’s decision in Mack v. Yost. The defendants in Mack purported to appeal from the denial of qualified immunity. But 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 seemed to have changed between the first and second appeals that would have affected immunity. The Third Circuit nevertheless exercised jurisdiction over the appeal and held that no Bivens remedy existed.

The Third Circuit on Pure Bivens Appeals

A majority of the Third Circuit dismissed the Graber defendant’s appeal.

The only proffered ground for appellate jurisdiction was the collateral-order doctrine. That doctrine deems certain decisions final and thus appealable if the decision (1) conclusively resolve an issue, (2) presents an important issue that is sufficiently separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment.

The majority explained that the rejection of a defendant’s Bivens argument failed the third requirement. That’s largely because Bivens is not an immunity from suit. That is, Bivens does not provide any protection from the burdens and uncertainties of litigation. It is instead a defense to liability. And defenses to liability can be—indeed, normally are—reviewed after a final judgment.

Judge Hardiman dissented. He conceded that Bivens does not provide an immunity from suit. He pointed out, however, that immunity is not the only consideration when it comes to the collateral-order doctrine’s third requirement. Instead, the rejected defense must implicate a sufficiently important public interest. And Bivens implicates “the Constitution’s separation of legislative and judicial powers.” Judge Hardiman thought that this interest was weighty enough to warrant immediate review.

A Couple Thoughts on Pure Bivens Appeals

I have two thoughts after Graber.

First, I wonder how much more the government will pursue this collateral-order argument. Himmelreich and Mack provide a blueprint for defendants to take what are essentially pure Bivens appeals. A defendant need make only a non-frivolous request for qualified immunity alongside the Bivens argument. If the district court denies immunity, the defendant can then appeal, and the court of appeals can reverse by addressing only the Bivens question.

Indeed, I’m puzzled by the defendant’s decision in Graber to waive any challenge to qualified immunity. Mack suggests that all he needed to do to obtain review of the Bivens question was not waive immunity.

My second thought concerns the short shrift that courts give to the collateral-order doctrine’s second requirement—that the decision present an issue separate from the merits. The majority did not need to address separateness given its conclusion on the third requirement. But Judge Hardiman did. And he analogized to qualified immunity, contending that the Bivens question was sufficiently separate because “[w]hether a plaintiff can show that a federal officer committed a constitutional tort against him is legally distinct from whether his claim is cognizable under Bivens.”

Holding that merits defenses like qualified immunity or the Bivens question are sufficiently separate undermines the purposes that underlie the collateral-order doctrine’s separateness requirement. As I explained in a recent article, requiring separation avoids interference with district court proceedings and prevents duplicative appeals. Immediate appeals of merits defenses risks both of these. These appeals often require a stay of district court proceedings while the appeal proceeds. And if the court of appeals affirms the rejection of the defense, subsequent proceedings (such as discovery or trial) might change the factual basis for a defense enough to warrant a second look—and second appeal from the rejection of—that defense.

Graber v. Doe II, 2023 WL 1876741 (3d Cir. Feb. 10, 2023), available at the Third Circuit and Westlaw