Yet Another Split Rejection of Pure Bivens Appeals
Disclosure: I participated in a moot oral argument for the plaintiff-appellee in this case.
In Garraway v. Ciufo, a divided Ninth Circuit held that federal officials cannot immediately appeal the Bivens question without a qualified-immunity appeal.
So far the courts of appeals have unanimously rejected the federal government’s efforts to secure immediate Bivens appeals. But these decisions have produced dissents, with judges contending that immediate appeals are warranted due to the interests the Bivens question implicates. And at least one more pending appeal presents this issue. This is probably not the end of the government’s attempts to secure pure Bivens appeals.
For more in-depth discussions of the government’s attempts at pure Bivens appeals, see the posts The Third Circuit Split on Pure Bivens Appeals and Another Rejection of Pure Bivens Appeals.
The majority determined that the interests at stake—separation of powers, protecting the efficiency of the Executive Branch—are not irreparably harmed by delaying an appeal. Granted, those interests are important. But they can be protected via qualified-immunity appeals (with which the Bivens question can tag along) or in an appeal after a final judgment. And the Bivens question does not implicate an avoidance-of-litigation interest like qualified immunity.
In short, there was “no right permanently destroyed” nor sufficiently important “harm irreparably done.” The only irreparable harm was “litigation burdensome to government officials.” And that doesn’t warrant an immediate appeal.
Judge Bumatay dissented. Like prior dissents on this issue, he contended that delayed review of the Bivens question threatens “a substantial public interest”: separation-of-powers problems that affect all three branches of government. He suggested that barring Bivens remedies is necessary to protect federal officials from the burdens of litigation. He even contended that “the threat of any impact on the executive branch from Bivens liability cries out for immediate review.”
There’s at least one more pending appeal presenting this issue. But given the persistence with which the government is pushing this issue, I won’t be surprised to see more.
Garraway v. Ciufo, 2024 WL 4020022 (9th Cir. Sep. 3, 2024), available at the Ninth Circuit and Westlaw
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