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Along with the Third and the Sixth Circuits, the Tenth Circuit is the third circuit court to conclude that the collateral order doctrine does not provide for immediate review under similar circumstances.
In Mohamed v. Jones, No. 22-1453, __ F.4th __ (10th Cir. May 7, 2024), the U.S. Court of Appeals for the Tenth Circuit determined that it lacked jurisdiction to consider an interlocutory order concerning whether the Bivens doctrine provided a remedy for excessive force and failure to intervene claims under the Eighth Amendment. Along with the Third and the Sixth Circuits, the Tenth Circuit is the third circuit court to conclude that the collateral order doctrine does not provide for immediate review under similar circumstances.
The ‘Bivens’ Doctrine
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court recognized an implied private right of action for damages against federal officials who allegedly violated a citizen’s constitutional rights. Bivens held that federal officials may be liable for using excessive force in conducting a warrantless search. Since 1971, the Supreme Court has recognized Bivens claims in two additional contexts. In Davis v. Passman, 442 U.S. 228 (1979), the court allowed a Bivens claim under the Fifth Amendment for gender discrimination against a congressional staffer; in Carlson v. Green, 446 U.S. 14 (1980), the court allowed a prisoner suit alleging inadequate medical care in violation of the Eighth Amendment.
Since this trifecta of cases, however, the court has continually limited Bivens to those three fact patterns. In today’s jurisprudential landscape, federal courts are unlikely to expand Bivens beyond these three recognized factual and legal contexts. A federal court may also deny a remedy under Bivens if alternate remedies are available.
Relevant Allegations From the Complaint
Khalfan Khamis Mohamed, who is currently incarcerated at the “Super Max” prison in Florence, Colorado, went on hunger strike. In response, BOP officials temporarily removed him from his cell. As they escorted him back, three officials beat him and three others stood by complicitly.
District Court Proceedings
Relying on Bivens, Mohamed sued the BOP personnel (BOP defendants) in their official and individual capacities. Relevant here, he brought an Eighth Amendment excessive force claim against the officers who allegedly beat him and an Eighth Amendment failure to intervene claim against those who allegedly stood by as he was beaten.
The BOP defendants and the United States moved to dismiss, arguing that the excessive force and failure to intervene claims were not cognizable under Bivens and that one BOP defendant was entitled to qualified immunity on the failure to intervene claim. A magistrate judge recommended denial of the motion, concluding that Bivens provided a remedy because the factual and legal context was analogous to Carlson and the single BOP defendant was not eligible for qualified immunity. The district court adopted the magistrate’s recommendation in its entirety.
The BOP defendants and the United States moved for reconsideration, contending that the Supreme Court’s decision in Egbert v. Boule, 142 S. Ct. 1793 (2022) and the Tenth Circuit’s recent opinion in Silva v. United States, 45 F.4th 1134 (10th Cir. 2022) foreclosed any Bivens remedy. The district court denied the motion.
Tenth Circuit Determines It Lacks Jurisdiction Under the Collateral Order Doctrine
The BOP defendants appealed under the collateral order doctrine, asserting only that the excessive force and failure to intervene claims should be dismissed for lack of a Bivens remedy. They did not appeal the district court’s qualified immunity determination.
In a split decision, the Tenth Circuit majority concluded that although the BOP defendants’ arguments were “not meritless,” they failed to meet their burden in establishing appellate jurisdiction under Cohen v. Beneficial Industrial Loan, 337 U.S. 541 (1949), which lays out three requirements for an order to be appealed before final judgment. The order must be conclusive; “resolve important questions separate from the merits”; and be “effectively unreviewable on appeal from … final judgment.”
Emphasizing the narrow scope of Cohen—under which interlocutory jurisdiction has been extended only to orders denying constitutionally based immunities (i.e., qualified immunity) and orders that would be moot following judgment—the majority focused its analysis on Cohen’s third factor, which requires the reviewing court to consider whether denying immediate review “would imperil a substantial public interest” or “some particular value of high order.” See Will v. Hallock, 546 U.S. 345, 352-53 (2006). The Supreme Court in Will indicated that such values include “honoring the separation of powers” and “preserving the efficiency of government and the initiative of its officials.” The BOP defendants argued that allowing interlocutory appeals of Bivens extension orders would serve these values. The majority disagreed.
First, the majority decided that allowing interlocutory review of Bivens extension orders would not promote efficiency. In support, the majority invoked the efficiency rationale behind the final judgment rule, cautioned against cart-before-the-horse merits evaluation of Bivens extension orders, recommended alternative avenues for interlocutory review, and emphasized the Supreme Court’s preference for rulemaking over judicial expansion of the collateral order doctrine. Second, the majority rejected the notion that orders extending Bivens to new contexts are analogous to those denying qualified immunity. Bivens, the majority posited, is more analogous to 42 U.S.C. Section 1983 than to qualified immunity. This is because “like Section 1983, Bivens gives plaintiffs a chance to vindicate their constitutional rights,” whereas “qualified immunity’s underlying rationale is to preserve officer initiative by protecting officials from liability and trial.” Finally, distinguishing appeals involving Bivens extension orders from Nixon v. Fitzgerald, 457 U.S. 731 (1982)—a case discussing the scope of presidential immunity—the majority held that Bivens extension orders do not impact separation of powers enough to warrant an expansion of Cohen. The majority concluded its analysis by noting that, ironically, the BOP Defendants’ requested expansion of the collateral order doctrine raised its own separation of powers concern: “How far … should courts go in carving out exceptions to the congressionally enacted final judgment rule?”
Discussion of Supreme Court Precedent and the Law in Other Circuits
The Supreme Court has not yet ruled on whether Bivens extension orders are appealable as a matter of right. The Court has twice reviewed Bivens extension orders on interlocutory appeal in conjunction with qualified immunity issues. See Hartman v. Moore, 547 U.S. 250 (2006); Wilkie v. Robbins, 551 U.S. 537 (2007). Yet, in Will, the court mused in dicta that “if simply abbreviating litigation troublesome to government employees were important enough for Cohen treatment, collateral order appeal would be a matter of right whenever … a federal official lost [a motion to dismiss] on a Bivens action.” 546 U.S. at 353-54. The court thus implied that Bivens extension orders are not immediately appealable.
The BOP defendants argued that Hartman and Wilkie recognized Bivens extension orders as a separate category of immediately appealable cases. After determining that it was bound by the Will dicta, Tenth Circuit majority rejected that argument. In the majority’s view, jurisdiction in both Hartman and Wilkie was predicated on a denial of qualified immunity and “without such a predicate, review of a Bivens extension order is unavailable.”
In 2021 and 2023, the Sixth and Third Circuits, respectively, declined to expand the collateral order doctrine to Bivens extension orders. See Himmelreich v. Federal BOP, 5 F.4th 653 (6th Cir. 2021); Graber v. Doe II, 59 F.4th 603 (3d Cir. 2023). In both Himmelreich and Graber, the court relied on the Will dicta and ruled that the defendant(s) had not established Cohen’s third factor. Given the contextual background of Himmelreich and Graber, the Mohamed majority professed its “reluctance” to “go against the tide” and create a circuit split.
Chief Judge Tymkovich Dissents
In dissent, Chief Judge Timothy Tymkovich disagreed that the circuit court lacked appellate jurisdiction under Cohen. Judge Tymkovich relied heavily on Egbert, in which the court severely limited the reach of Bivens. Under Egbert, if a case is “meaningfully” different from the three recognized Bivens contexts, “a Bivens remedy is unavailable if there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” 596 U.S. at 492. “Even a single reason to pause” before applying Bivens in a new context forecloses such application. The court rested its rationale for constraining creation of new Bivens contexts on separation of powers concerns. In the Egbert majority’s view, Congress, not the courts, should be entrusted with the creation of new causes of action.
In light of Egbert’s plainly restrictive (and, arguably, unworkable) analytical framework, Judge Tymkovich opined that the Bivens doctrine has been “defanged” so entirely that Bivens claims are “no longer cognizable.”
Judge Tymkovich then turned to the Cohen factors. Like the majority, he focused his analysis on the third factor: whether an order is effectively unreviewable on appeal by imperiling a substantial public interest. In Judge Tymkovich’s view, the initial recognition and continuing “zombie existence” of Bivens puts “irreparable” strain on the separation of powers between every coordinate branch of government by disincentivizing legislation on the issue, impairing government functioning, and arrogating legislative power; thus, Bivens extension orders satisfy the criteria laid out by Will and warrant immediate interlocutory review.
Stephen Masciocchi and Aja Robbins are attorneys in Holland & Hart’s Denver office. Masciocchi co-chairs the appellate group at Holland & Hart and assists clients with high-stakes federal and state appeals and class actions. Robbins helps clients navigate complex litigation at the trial and appellate level.
Reprinted with permission from the June 28, 2024 online edition of Law.com © 2024 ALM Global Properties, LLC, All Rights Reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.