Third Circuit Panel Divides Over Whether a Federal Agent Can Take an Interlocutory Appeal Under the Collateral Order Doctrine of an Order Denying Dismissal of a Bivens Cause of Action

In Graber v. Boresky, No. 21-1407 (3d Cir. Feb. 10, 2023), a 2-1 panel holds that there is no automatic interlocutory appeal under the collateral order doctrine of a district court decision on a Fed. R. Civ. P. 12(b)(6) motion that there is a cause of action under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Bivens recognizes a direct action against an individual federal employee for certain kinds of constitutional violations. The Supreme Court has gradually reined in such actions, most recently in Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022), and a Bivens defendant has a right to an interlocutory appeal of a decision denying qualified immunity under Mitchell v. Forsyth, 472 U. S. 511 (1985). In this unusual case, though, the defendant elected not to take an appeal from the qualified immunity order, but from the merits of the Bivens claim itself.

The plaintiff was a demonstrator at the Democratic National Convention in 2016. He “sued Defendant [Boresky], a Special Agent for the United States Secret Service, asserting that Boresky violated his Fourth Amendment rights by arresting, detaining, and charging him with a crime without probable cause. In an order denying a motion to dismiss, the District Court held that a Bivens claim could be brought against Boresky. Thereafter, the Court dismissed Boresky’s motion for summary judgment without prejudice based upon qualified immunity because it found that discovery was needed to determine whether Boresky was entitled to qualified immunity. At oral argument before [the Third Circuit], Boresky stated that he is not challenging the qualified immunity ruling but argued that [it] should review the District Court’s Bivens [Rule 12(b)(6)] ruling.”

The panel majority holds that it lacks jurisdiction over such an appeal. “A Bivens ruling does not fall within this small group of orders that require interlocutory review under the collateral order doctrine: a Bivens ruling can be effectively reviewed after final judgment because, unlike various immunity doctrines, a Bivens ruling is not meant to protect a defendant from facing trial.”

Rather than functioning as an immunity doctrine, Bivens “is a judicially created cause of action that allows a plaintiff to sue a federal officer for damages for constitutional violations . . . . The Court’s focus in determining whether such a claim can be brought, therefore, is on whether courts should be in the business of creating avenues for liability, which is distinct from whether a defendant is immune from suit altogether.”

Accordingly, “Boresky’s assertion that there is no cause of action under Bivens is simply a defense to liability, which can be effectively reviewed after the entry of final judgment . . . . Unlike an immunity ruling, any error in a Bivens ruling can be cured on appeal at the end of the case. Thus, an order denying a motion to dismiss or for summary judgment based upon Bivens, untethered to an order denying qualified immunity, is not appealable under the collateral order doctrine.”

Dissenting, Judge Hardiman would hold that the constitutional separation of powers issues paramount in the adjudication of Bivens cases warrants interlocutory review. To be “effectively unreviewable on appeal,” an order need not implicate an immunity defense if it otherwise “denies a potentially dispositive pretrial defense that implicates a sufficiently important public value.” Here, “a court’s wrongful arrogation of the legislative power to create a cause of action for claims of constitutional torts against federal officers violates the constitutional separation of powers and disrupts effective governance. Because those harms are immediate and those interests essential, an order wrongly authorizing a Bivens claims to proceed is ‘effectively unreviewable’ on appeal after final judgment.”

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