Mohamed v. Jones

100 F.4th 1214

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 7, 2024
• Docket: 22-1453
• Status: Published

Opinion

Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 7, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

KHALFAN KHAMIS MOHAMED,

Plaintiff - Appellee,

v. No. 22-1453

JONES; HUDDLESTON; OSAGIE; BRUSH; ESPINOZA; MILLER; MURTON; ARMIJO,

Defendants - Appellants. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-02516-RBJ-MDB) _________________________________

Lowell V. Sturgill, Jr., Attorney, Civil Division (Brian M. Boynton, Acting Assistant Attorney General; Cole Finegan, U.S. Attorney; and Barbara L. Herwig, Attorney, Civil Division, with him on the briefs) Department of Justice, Washington, D.C., for the Defendants - Appellants.

Khalfan Khamis Mohamed, filed a brief pro se.

Madeline Brooke Dobkin, Student Intern Attorney (Matthew Cushing, Counsel of Record; Jenna King and Reagan McDonnell, Student Intern Attorneys, with her on the brief) University of Colorado Law School Appellate Advocacy Practicum, Boulder, Colorado, for Plaintiff - Appellee. _________________________________ Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 2

Before TYMKOVICH, MATHESON, and BACHARACH, Circuit Judges. _________________________________

MATHESON, Circuit Judge. _________________________________

Federal Bureau of Prisons (“BOP”) officials beat prisoner Khalfan Khamis

Mohamed while other officials watched. Mr. Mohamed brought Eighth Amendment

excessive force and failure to intervene claims against several BOP officials,

contending that Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), provided him a cause of action. The BOP

defendants moved to dismiss, arguing Bivens does not extend to Mr. Mohamed’s

claims. The district court denied their motion.

The BOP defendants seek interlocutory review. We dismiss for lack of

jurisdiction.

I. BACKGROUND

A. Factual Background1

Mr. Mohamed, incarcerated at the United States Administrative Maximum

Penitentiary in Florence, Colorado, went on a hunger strike. BOP officials

temporarily removed him from his cell. As they escorted him back, Officers David

Brush, Joseph Miller, and Cody Espinoza beat him. Lieutenants Joseph Armijo and

Dennis Murton and Physician’s Assistant (“PA”) Anthony Osagie watched and did

1 Because this appeal is from a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we take the facts alleged in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Citizen Ctr. v. Gessler, 770 F.3d 900, 916 (10th Cir. 2014).

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not intervene as Mr. Mohamed cried out for help and limped in pain. Lieutenant

Murton also instructed the others “on how to beat [Mr. Mohamed].” App., Vol. II

at 167.

Officer Brush then removed almost everything from Mr. Mohamed’s cell,

including thousands of pages of documents Mr. Mohamed had written over 20 years,

seven books, a “few shorter works,” legal and religious materials, cosmetic items,

writing and postage materials, toiletries, and his drinking water cup. Id. at 170-71.

Mr. Mohamed later recovered some of these items. He experienced severe

depression and post-traumatic stress disorder from the loss of his work product.

After the beating, Nurse Kelly Jones performed a medical assessment of

Mr. Mohamed. Although Mr. Mohamed had visible injuries and complained of

broken bones and severe pain, Nurse Jones did not provide any treatment. He also

refused multiple times to examine Mr. Mohamed for symptoms related to the hunger

strike. Nurse Roger Huddleston eventually performed a hunger-strike assessment but

refused several times to treat Mr. Mohamed’s beating-related injuries.

PA Osagie told Mr. Mohamed to end the hunger strike and not tell other staff

about his pain if he wanted to receive treatment for his beating-related injuries.

PA Osagie also forced Mr. Mohamed to eat and to endure painful leg cuffs.

Mr. Mohamed eventually received some treatment for his physical injuries,

including a broken ankle, but he continues to experience pain and other physical

symptoms from the beating.

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B. Procedural Background

Mr. Mohamed’s Claims

Mr. Mohamed sued Officers Brush, Miller, and Espinoza; Lieutenants Armijo

and Murton; PA Osagie; and Nurses Jones and Huddleston in their individual and

official capacities. Relying on Bivens, he brought Eighth Amendment excessive

force claims against Officers Brush, Miller, and Espinoza; Eighth Amendment failure

to intervene claims against Lieutenants Armijo and Murton and PA Osagie; a First

Amendment claim against Officer Brush for confiscating his property; and Eighth

Amendment deliberate indifference to medical needs claims against PA Osagie and

Nurses Jones and Huddleston. He also brought five claims against the United States

under the Federal Tort Claims Act (“FTCA”).

Motions to Dismiss

The BOP defendants and the United States filed motions to dismiss. As

relevant on appeal, the BOP defendants argued the excessive force and failure to

intervene claims should be dismissed for lack of a Bivens remedy and that PA Osagie

was entitled to qualified immunity on the failure to intervene claim.2 Officers Brush,

2 The Defendants sought dismissal of the First Amendment, deliberate indifference, and two of the FTCA claims on various grounds. The district court dismissed the First Amendment claim and the two FTCA claims, but it denied dismissal of the deliberate indifference claims, finding Mr. Mohamed stated a claim and the BOP defendants lacked qualified immunity. The United States did not seek dismissal of the other three FTCA claims, all for battery.

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Miller, and Espinoza and Lieutenants Armijo and Murton did not argue they were

entitled to qualified immunity for the excessive force or failure to intervene claims.

The motions were referred to a magistrate judge, who recommended the

excessive force and failure to intervene claims not be dismissed because Bivens

provided a remedy and PA Osagie was not eligible for qualified immunity on the

failure to intervene claim. The BOP defendants timely objected. The district court

adopted the magistrate judge’s report and recommendation in its entirety.

Motion for Reconsideration

The BOP defendants then moved to reconsider under Federal Rule of Civil

Procedure 59(e), arguing intervening Supreme Court precedent, Egbert v. Boule,

142 S. Ct. 1793 (2022), foreclosed a Bivens remedy for excessive force and failure to

intervene claims. They also alerted the district court to Silva v. United States,

45 F.4th 1134 (10th Cir. 2022), in which we held that no Bivens remedy is available

for Eighth Amendment excessive force claims when the BOP’s Administrative

Remedy Program provides an alternative remedial scheme. The district court denied

the motion.

Appeal

The BOP defendants appealed, arguing only that the excessive force and

failure to intervene claims should be dismissed for lack of a Bivens remedy. Despite

raising a potential qualified immunity challenge to the failure to intervene claim

against PA Osagie in the docketing statement, the BOP defendants did not make a

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qualified immunity argument in their opening brief.3 They argue we have

interlocutory appellate jurisdiction under the collateral order doctrine to consider the

district court’s Bivens extension.

C. Legal Background

We must decide whether the district court’s order extending Bivens to

Mr. Mohamed’s Eighth Amendment excessive force and failure to intervene claims

qualifies for interlocutory review under the collateral order doctrine. In the

following legal background discussion, we first provide an overview of the collateral

order and Bivens doctrines and show the Supreme Court has often and increasingly

refused to expand either. Second, we turn to the few Supreme Court decisions that

resolved Bivens or related issues on interlocutory appeal. None of them was an

interlocutory appeal where the only issue was whether a Bivens claim exists. Third,

we review the two circuit court cases that have addressed whether Bivens extension

orders may be appealed under the collateral order doctrine. Both said no.

The Collateral Order and Bivens Doctrines

a. Collateral order doctrine

i. Final judgment rule – 28 U.S.C. § 1291

Federal appellate jurisdiction is generally limited to appeals from “final”

district court orders, 28 U.S.C. § 1291, and orders certified for interlocutory appeal,

3 The BOP defendants also abandoned their qualified immunity arguments on the deliberate indifference claims.

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id. § 1292(b). Section 1291 provides that “[t]he courts of appeals . . . shall have

jurisdiction of appeals from all final decisions of the district courts of the United

States.” This final judgment rule “preserv[es] respect for trial judges, reduc[es] the

ability of litigants to harass each other, and enhanc[es] the efficient administration of

justice.” United States v. Martinez-Haro, 645 F.3d 1228, 1231 (10th Cir. 2011)

(citing Flanagan v. United States, 465 U.S. 259, 263-64 (1984)).

ii. Cohen rationale and test

In 1949, the Supreme Court recognized the collateral order doctrine in Cohen

v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). The collateral order

doctrine allows for immediate appeal of some non-final orders under § 1291. See

Will v. Hallock, 546 U.S. 345, 349 (2006); Osage Tribal Council ex rel. Osage Tribe

of Indians v. U.S. Dep’t of Lab., 187 F.3d 1174, 1179 (10th Cir. 1999). The doctrine

gives § 1291’s finality requirement a “practical rather than a technical construction.”

Cohen, 337 U.S. at 546. Appealable collateral orders “are said to be ‘too important

to be denied review and too independent of the cause itself’ to justify waiting out the

rest of the adjudication.” Los Lobos Renewable Power, LLC v. Americulture, Inc.,

885 F.3d 659, 664 (10th Cir. 2018) (quoting Cohen, 337 U.S. at 546).

For orders to be appealed before final judgment, they must (1) be

“conclusive”; (2) “resolve important questions separate from the merits”; and (3) be

“effectively unreviewable on appeal from . . . final judgment.” Mohawk Indus., Inc.

v. Carpenter, 558 U.S. 100, 106 (2009) (quotations omitted); see Cohen, 337 U.S.

at 545-47. These are referred to as the “Cohen factors.” See, e.g., Osage Tribal

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Council, 187 F.3d at 1180. For the third factor, “the decisive consideration is

whether delaying review until the entry of final judgment ‘would imperil a

substantial public interest’ or ‘some particular value of a high order.’” Mohawk,

558 U.S. at 107 (quoting Will, 546 U.S. at 352-53).

In applying the Cohen test, courts consider “the entire category to which a

claim belongs” instead of “engag[ing] in an individualized jurisdictional inquiry” that

would ask whether “the litigation at hand might be speeded, or a particular injustice

averted.” Id. (alterations and quotations omitted).

iii. Cohen’s limited scope

“[T]he Supreme Court has issued increasingly emphatic instructions that the

class of cases capable of satisfying this ‘stringent’ test should be understood as

‘small,’ ‘modest,’ and ‘narrow.’” United States v. Wampler, 624 F.3d 1330, 1334

(10th Cir. 2010) (quoting Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,

868 (1994); Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995); Will, 546

U.S. at 350; Mohawk, 558 U.S. at 113).

The types of orders that fall under the collateral order doctrine “require only

two hands to count.” Belya v. Kapral, 45 F.4th 621, 629 n.5 (2d Cir. 2022), cert.

denied sub nom. Synod of Bishops of the Russian Orthodox Church Outside of Russ.

v. Belya, 143 S. Ct. 2609 (2023). The first and larger category includes

“constitutionally based immunities,” Los Lobos Renewable Power, 885 F.3d at 664—

orders denying qualified, absolute, tribal, Eleventh Amendment, or another

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immunity.4 The second category includes mostly orders that would be moot

following final judgment.5 The Supreme Court has declined to extend collateral

order treatment to a wide variety of other orders.6

4 Will, 546 U.S. at 350 (collecting cases); Osage Tribal Council, 187 F.3d at 1179 (denials of tribal sovereign immunity); Osborn v. Haley, 549 U.S. 225, 238 (2007) (denials of immunity under the Westfall Act); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993) (denials of Eleventh Amendment immunity); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (denials of qualified immunity, to the extent they turn on an issue of law); Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) (denials of absolute Presidential immunity); Helstoski v. Meanor, 442 U.S. 500, 508 (1979) (denials of Speech or Debate Clause immunity in a criminal case); Abney v. United States, 431 U.S. 651, 662 (1977) (adverse double jeopardy orders); Nixon, 457 U.S. at 742 (describing Abney as addressing a “claim of immunity under [the] Double Jeopardy Clause”). 5 Shoop v. Twyford, 142 S. Ct. 2037, 2043 n.1 (2022) (prisoner-transport orders under the All Writs Act); Sell v. United States, 539 U.S. 166, 177 (2003) (orders permitting the government to force a defendant to take antipsychotic drugs to render him competent to stand trial); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10-12 (1983) (stay orders when their sole purpose and effect is to surrender jurisdiction of federal suit to state court); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 715 (1996) (same); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170-72 (1974) (orders allocating the costs of providing notice to class members); Stack v. Boyle, 342 U.S. 1, 6 (1951) (orders denying motions to reduce bail); Swift & Co. Packers v. Compania Colombiana del Caribe, S.A., 339 U.S. 684, 688-89 (1950) (orders imposing an attachment of a vessel in admiralty). 6 Microsoft Corp. v. Baker, 582 U.S. 23, 26 (2017) (stipulated-to voluntary dismissals with prejudice of orders denying class certification); Mohawk, 558 U.S. at 103 (orders to disclose confidential materials based on waiver of attorney-client privilege); Will, 546 U.S. at 347 (refusals to apply FTCA judgment bar); Cunningham v. Hamilton County, 527 U.S. 198, 200 (1999) (attorney sanctions under Federal Rule of Civil Procedure 37(a)(4)); Johnson v. Jones, 515 U.S. 304, 307 (1995) (denials of qualified immunity at summary judgment based on fact-related disputes); Swint, 514 U.S. at 38 (denials of motions for summary judgment on non-qualified-immunity issue without pendent jurisdiction); Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989) (denials of motions to dismiss an indictment for violation of Federal Rule of Criminal Procedure 6(e)); Lauro Lines

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b. Bivens doctrine

In 42 U.S.C. § 1983, Congress created a damages action for deprivation of

federal rights by officials acting under color of state law.7 But “Congress did not

provide a specific damages remedy for plaintiffs whose constitutional rights were

violated by agents of the Federal Government.” Ziglar v. Abbasi, 582 U.S. 120, 130

(2017). In 1971, the Supreme Court in Bivens “recognized for the first time an

implied private action for damages against federal officers alleged to have violated a

s.r.l. v. Chasser, 490 U.S. 495, 496 (1989) (denials of motions to dismiss damages actions based on contractual forum-selection clauses); Van Cauwenberghe v. Biard, 486 U.S. 517, 527 (1988) (denials of immunity from civil process); id. (denials of forum non conveniens dismissal); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 278 (1988) (denials of Colorado River motions); Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 372, 377 (1987) (orders granting permissive intervention but denying intervention as of right); Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 426 (1985) (orders disqualifying counsel in a civil case); Flanagan, 465 U.S. at 260 (orders disqualifying defense counsel in a criminal prosecution); United States v. Hollywood Motor Car Co., 458 U.S. 263, 264 (1982) (denials of motion to dismiss indictment for prosecutorial vindictiveness); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 369-70 (1981) (denials of motions to disqualify counsel for the opposing party in a civil case); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (orders denying class certification), superseded by F.R.C.P. 23(f); United States v. MacDonald, 435 U.S. 850, 861 (1978) (denials of speedy trial motions). 7 Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

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citizen’s constitutional rights.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)

(quotations omitted). It held that officials acting under color of federal law may be

liable for money damages for using excessive force in conducting a warrantless

search and arrest in violation of the Fourth Amendment. Bivens, 403 U.S. at 397;

Abbasi, 582 U.S. at 130-31.

The Supreme Court has since “recognized . . . an implied cause of action in

[only] two cases involving other constitutional violations,” both in the decade after

Bivens. Abbasi, 582 U.S. at 131. In Davis v. Passman, 442 U.S. 228 (1979), the

Court allowed a Bivens claim against a Member of Congress for a congressional

staffer’s Fifth Amendment Due Process gender discrimination claim. In Carlson v.

Green, 446 U.S. 14 (1980), the Court said a prisoner could sue federal prison

officials under Bivens for inadequate medical care in violation of the Eighth

Amendment. After these two cases, “the arguments for recognizing implied causes

of action for damages began to lose their force.” Abbasi, 582 U.S. at 132. Indeed,

the Supreme Court has not done so since then.

“[E]xpanding the Bivens remedy is now a disfavored judicial activity.”

Id. at 135 (quotations omitted). “[A]lmost any difference between the case at hand

and the three [Bivens] precedents can justify rejecting a cause of action.” Logsdon v.

U.S. Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024), petition for rehr’g denied

(Apr. 5, 2024). A court may also deny a Bivens remedy when “the Government

already has provided alternative remedies that protect plaintiffs.” Silva, 45 F.4th

at 1141 (quoting Egbert, 142 S. Ct. at 1804). We recently declined to extend Bivens

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to an Eighth Amendment excessive force claim in Silva, id., and to a Fourth

Amendment excessive force claim against Deputy U.S. Marshals in Logsdon,

91 F.4th at 1355-56.

Relevant Supreme Court Cases

Several Supreme Court cases have addressed Bivens extension orders or

related issues on interlocutory appeal, but none have allowed interlocutory appellate

review for a Bivens-only appeal.

a. Hartman v. Moore, 547 U.S. 250 (2006)

In Hartman, the plaintiff brought “a Bivens action against criminal

investigators for inducing prosecution in retaliation for speech.” 547 U.S. at 252.

The defendants, federal officials sued in their individual capacities, moved for

summary judgment based on qualified immunity “because the underlying criminal

charges were supported by probable cause.” Id. at 255. The district court denied the

motion, and the D.C. Circuit affirmed on interlocutory appeal. Id.

The defendants petitioned for certiorari, arguing that (1) the complaint had to

allege an absence of probable cause to state a Bivens claim and (2) they were entitled

to qualified immunity. See Pet. for Certiorari at *I, Hartman, 547 U.S. 250

(No. 04-1495), 2005 WL 1123566. The parties disputed whether the Supreme Court

had interlocutory jurisdiction to consider the elements of a Bivens claim. Compare

Br. for Resp. at *36-39, Hartman, 547 U.S. 250 (No. 04-1495), 2005 WL 2653949,

with Reply Br. for Pets. at *14-15, Hartman, 547 U.S. 250 (No. 04-1495), 2005 WL

3118783. The Court had previously recognized that the collateral order doctrine

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permits interlocutory appeal of denials of qualified immunity, see Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985), but it had not discussed jurisdiction over Bivens

issues on interlocutory appeal.

The Court resolved the case without reaching qualified immunity, holding that

“want of probable cause must be alleged and proven” to “state[] an actionable

violation” under the Bivens theory presented. Hartman, 547 U.S. at 252. It justified

resolving only the Bivens issue because it “d[id] not go beyond a definition of an

element of the tort, [which was] directly implicated by the defense of qualified

immunity and properly before [the Court] on interlocutory appeal.” Id. at 257 n.5.

b. Wilkie v. Robbins, 551 U.S. 537 (2007)

In Wilkie, the plaintiff brought a Bivens claim for violations of his Fifth

Amendment rights. 551 U.S. at 548. The federal defendants moved for dismissal

and summary judgment based on qualified immunity, and the district court denied

both motions. Id. On interlocutory appeal, this court held we had jurisdiction under

the collateral order doctrine to consider the summary judgment denial because it was

premised on a denial of qualified immunity, and we affirmed. Robbins v. Wilkie,

433 F.3d 755, 761-64 (10th Cir. 2006), rev’d and remanded, 551 U.S. 537, vacated,

497 F.3d 1122 (10th Cir. 2007) (mem.).

The Supreme Court granted certiorari, held it had interlocutory jurisdiction,

and reversed. It held that Bivens did not give the plaintiff a cause of action and

“there [wa]s no reason to enquire further into . . . the asserted defense of qualified

immunity.” 551 U.S. at 567. The Court justified addressing the Bivens issue on

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interlocutory review based on Hartman’s “reasoning”—that “the definition of an

element of the asserted cause of action was ‘directly implicated by the defense of

qualified immunity and properly before [it] on interlocutory appeal’”—“applie[d] to

the recognition of the entire cause of action.” Id. at 549 n.4 (quoting Hartman,

547 U.S. at 257 n.5).8

c. Will v. Hallock, 546 U.S. 345 (2006)

Although Will did not concern a Bivens extension order, its discussion of

whether a district court’s order refusing to apply the FTCA’s judgment bar was

appealable under the collateral order doctrine is relevant here. The plaintiff in Will

brought an FTCA claim against the United States and, in a separate action, a Bivens

claim against U.S. Customs Service agents for damage to her property from a search.

546 U.S. at 347-48. The district court dismissed the first suit. In the second

proceeding, the agents sought to enforce the FTCA’s judgment bar, which precludes

“any action by the [plaintiff], by reason of the same subject matter, against the

employee of the government whose act or omission gave rise to the claim” if a court

enters “judgment in an action under [the FTCA].” 28 U.S.C. § 2676; see Will,

546 U.S. at 348. The district court denied the motion. Will, 546 U.S. at 348-49. The

8 The Court commented on these decisions in Iqbal, where it similarly looked to Hartman to hold that “the sufficiency of respondent’s pleadings [wa]s both ‘inextricably intertwined with’” “and ‘directly implicated by’ the qualified-immunity defense.” 556 U.S. at 673 (first quoting Swint, 514 U.S. at 51, then quoting Hartman, 551 U.S. at 257 n.5). The Iqbal Court assumed without deciding that the respondent’s First Amendment claim was actionable as a Bivens claim and did not discuss Bivens in its jurisdictional analysis. Id. at 675.

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Second Circuit “affirmed, after first finding jurisdiction under the collateral order

doctrine.” Id. at 349.

The Supreme Court vacated the Second Circuit’s decision for lack of appellate

jurisdiction, holding that orders “refus[ing] to apply the [FTCA’s] judgment bar” are

not appealable under the collateral order doctrine. Id. at 347, 349. The Court relied

on the third Cohen factor—whether the order would be “effectively unreviewable”

absent immediate appeal. Id. at 351; see id. at 351-54. It said no, explaining that

“effectively unreviewable” cannot include “any order denying a claim of right to

prevail without trial” because “this generalization is too easy to be sound and, if

accepted, would leave . . . § 1291 in tatters.” Id. at 351. The Court instead clarified

that “only some orders denying an asserted right to avoid the burdens of trial” are

“effectively” unreviewable. Id. (quotations omitted). It noted it had previously

allowed collateral order review when “some particular value of a high order was

marshaled in support of the interest in avoiding trial: honoring the separation of

powers, preserving the efficiency of government and the initiative of its officials,

respecting a State’s dignitary interest, and mitigating the government’s advantage

over the individual.” Id. at 352-53.

The Court then reasoned that the FTCA’s judgment bar did not implicate any

unique public interest and was “essential[ly] procedural,” id. at 354, with “no . . .

greater importance than the typical defense of claim preclusion,” id. at 355. It also

anticipated in dicta the issue raised here, suggesting that an interlocutory appeal of a

Bivens extension order would not fit the Cohen test:

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It is not the preservation of initiative but the avoidance of litigation for its own sake that supports the judgment bar, and 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 officer lost [a motion to dismiss] on a Bivens action, or a state official was in that position in a case under 42 U.S.C. § 1983, or Ex parte Young, 209 U.S. 123 (1908). In effect, 28 U.S.C. § 1291 would fade out whenever the Government or an official lost an early round that could have stopped the fight.

Id. at 353-54 (emphasis added) (the “Will dicta”).

Other Circuit Courts

Two other circuits have considered the issue we face here—whether district

court orders extending Bivens are immediately appealable under the collateral order

doctrine when a defendant fails to raise or abandons qualified immunity as a basis for

appellate jurisdiction. Both held the collateral order doctrine does not extend to

Bivens-only appeals. Himmelreich v. Fed. BOP, 5 F.4th 653 (6th Cir. 2021); Graber

v. Doe II, 59 F.4th 603 (3d Cir. 2023), cert denied sub nom. Boresky v. Graber,

144 S. Ct. 681 (2024) (mem.).9

a. Himmelreich v. Federal BOP, 5 F.4th 653 (6th Cir. 2021)

Himmelreich was an interlocutory appeal from a Bivens extension order where

the federal defendant failed to timely raise qualified immunity. 5 F.4th at 659. The

Sixth Circuit held that “[w]here a defendant has not appealed the denial of qualified

9 The Ninth and Eleventh Circuits are currently considering the same issue. Garraway v. Ciufo, No. 23-15482 (9th Cir.); Fleming v. FCI Tallahassee Warden, No. 23-10252 (11th Cir.).

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immunity, the appellate court does not have jurisdiction under the collateral order

doctrine to address an underlying claim.” Id. at 661. It first distinguished Hartman

and Wilkie because in those cases, “the appellate courts already had jurisdiction over

the appeals challenging the district courts’ denial of qualified immunity” and the

Bivens issue was “directly implicated by [the] . . . denial of qualified immunity.”

Id. at 660.

The court then analyzed the Cohen factors. It assumed the first two factors

were met and concluded the third—“effectively unreviewable”—was not.

Id. at 661-62. It reasoned that the possibility of reversing a Bivens extension on

interlocutory appeal “does not grant defendants an entitlement not to stand trial.”

Id. at 662. It characterized Will as holding that the “order allowing the Bivens claim

to proceed [without enforcing the FTCA’s judgment bar] was not effectively

unreviewable because the government did not have an absolute right to avoid trial.”

Id. at 663. It quoted the Will dicta and concluded that “Will does not recognize an

absolute right for [the defendant] to avoid trial.” Id.

b. Graber v. Doe II, 59 F.4th 603 (3d Cir. 2023)

In Graber, the Third Circuit held it could not review a Bivens extension under

the collateral order doctrine when the federal defendant had waived his challenge to

the district court’s Rule 12(b)(6) qualified immunity ruling. 59 F.4th at 607-08.

The court determined that a Bivens extension order did not meet the third

Cohen factor. Id. at 608. First, it reasoned that Bivens “is not an immunity

doctrine,” id. at 609, and although the “effectively unreviewable” standard is not

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limited to immunity doctrines, it encompasses only rights that would be “irretrievably

lost” or “moot following a final judgment,” id. at 608 n.9 (quotations omitted).

Because Bivens claims do “not become moot following a final judgment,” they are

not “effectively unreviewable.” Id. Second, the court found the Will dicta “highly

persuasive.” Id. at 609 & n.10 (quotations omitted). Third, “[t]he availability of”

certified appeals under § 1292(b) “counsel[ed] against” allowing the appeal under

§ 1291. Id. at 610 n.14.10

The Supreme Court denied certiorari. Boresky v. Graber, 144 S. Ct. 681

(2024) (mem.).

II. DISCUSSION

The BOP defendants bear the burden of establishing our appellate jurisdiction.

Cummings v. Dean, 913 F.3d 1227, 1235 (10th Cir. 2019). They must convince us to

create an exception to § 1291’s final judgment rule for all district court orders

extending a Bivens remedy—something that neither the Supreme Court nor any

circuit court has done before. Although the BOP defendants’ arguments are not

meritless, they have not met their burden. We conclude they have not shown that

10 Judge Hardiman dissented. He argued that “immunity is neither sufficient nor necessary” to satisfy the third Cohen factor. 59 F.4th at 611 (Hardiman, J., dissenting). He characterized the Will dicta as “drive-by dictum” and contended that Bivens extension orders are more important than the FTCA’s judgment bar and are not “‘essential[ly] procedural.’” Id. at 612 (quoting Will, 546 U.S. at 354). Judge Hardiman would have found Bivens extension orders meet the third Cohen factor because “they imperil a ‘particular value of a high order’ and ‘substantial public interest’”—namely, separation of powers. Id. at 614 (quoting Will, 546 U.S. at 352-53).

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Bivens extension orders are effectively unreviewable after final judgment11 and

therefore have not satisfied the third Cohen factor.12 We base our holding on the

following considerations:

A. The BOP defendants have a heavy burden to show expansion of the collateral order doctrine is warranted.

1. The exception to finality is narrow.

2. Other avenues exist for interlocutory review.

3. Congress and the Supreme Court prefer rulemaking to judicial expansion of the doctrine.

11 The parties seem to agree that Bivens extension orders are reviewable after final judgment, but they disagree about whether they are effectively unreviewable. As Mr. Mohamed notes, “the Supreme Court itself has reviewed the availability of a Bivens remedy after trial.” Suppl. Aplee. Br. at 24 (citing FDIC v. Meyer, 510 U.S. 471, 474-75, 486 (1994)). In that case, the plaintiff brought a Bivens claim and prevailed at trial, Meyer, 510 U.S. at 474, and the Supreme Court rejected the Bivens extension on appeal from final judgment, id. at 486. The Court also rejected a Bivens extension after final judgment in Egbert. 142. S. Ct. at 1802. Both Meyer and Egbert show that, like district court denials of qualified immunity, Bivens extension orders are not “unreviewable” on appeal from final judgment. The question remains whether they implicate public interests that make them “effectively unreviewable” under the third Cohen factor. 12 We are also not convinced the second Cohen factor—whether the Bivens extension question is separate from the merits—is met. “The Supreme Court has repeatedly cautioned that the collateral-order doctrine requires ‘complete separation’ from the merits.” Kell v. Benzon, 925 F.3d 448, 455 (10th Cir. 2019) (quotations omitted). And “[t]he question of whether the plaintiff has a cognizable cause of action (and what that cause of action might be) is not a question separate from the merits; it is the merits.” Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 1134 (D.C. Cir. 2004) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)); see also Cohen, 337 U.S. at 546-47 (finding an order “appealable because it [wa]s a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it” (emphasis added)).

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B. The BOP defendants have failed to meet their heavy burden.

1. Bivens extension orders are different from denials of qualified immunity.

2. Separation of powers concerns about Bivens extension orders do not necessarily satisfy the third Cohen factor, and expanding the collateral order doctrine raises separation of powers concerns of its own.

3. The Will dicta counsels against applying the collateral order doctrine to Bivens extension orders.

C. The Supreme Court has never treated a Bivens extension order as an independent basis for collateral order review.

D. We are reluctant to create a circuit split.

A. The Heavy Burden to Warrant Collateral Order Doctrine Expansion

As the following discussion shows, the BOP defendants have a heavy burden

to convince us that judicial expansion of the collateral order doctrine is warranted.

Cohen’s Narrow Exception

We must heed the Supreme Court’s “increasingly emphatic instructions that

the class of cases capable of satisfying th[e] ‘stringent’ [Cohen] test should be

understood as ‘small,’ ‘modest,’ and ‘narrow.’” Wampler, 624 F.3d at 1334 (quoting

Digit. Equip., 511 U.S. at 868; Swint, 514 U.S. at 42; Will, 546 U.S. at 350; Mohawk,

558 U.S. at 113); see also Tucker v. Faith Bible Chapel Int’l, 36 F.4th 1021, 1033

(10th Cir. 2022) (“Immediate appeals under the collateral order doctrine are

disfavored; they ‘are the exception, not the rule.’” (quoting Johnson v. Jones,

515 U.S. 304, 309 (1995))), cert. denied, 143 S. Ct. 2608 (2023) (mem.).

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In Will, the Court reiterated that it “ha[s] meant what [it] ha[s] said.” 546 U.S.

at 350. A few years after Will, the Mohawk Court again declined to expand the

collateral order doctrine and emphasized the need to keep the doctrine exceptionally

narrow. 558 U.S. at 113. Mohawk commentators sounded the death knell for Cohen

expansion. See Erwin Chemerinsky, Court Keeps Tight Limits on Interlocutory

Review, 46 Trial 52, 54 (2010) (“[Mohawk] shows that little, if anything, will be

found to fit within the collateral order exception that the Court recognized in

Cohen.”); James E. Pfander, Iqbal, Bivens, and the Role of Judge-Made Law in

Constitutional Litigation, 114 Penn. St. L. Rev. 1387, 1404 (2010) (“[T]he Court [in

Mohawk] . . . suggested that it would no longer adopt judge-made expansions of the

collateral order doctrine.”).

In the 15 years since Mohawk, only once has the Court applied the collateral

order doctrine to a new situation, one entirely unlike a Bivens extension order. Shoop

v. Twyford, 142 S. Ct. 2037, 2043 n.1 (2022) (extending the collateral order doctrine

to prisoner transport orders under the All Writs Act); see also supra notes 4-6. The

5-4 decision provided only minimal analysis in a footnote and drew sharp dissents.

See Shoop, 142 S. Ct. at 2047-48 (Breyer, J., dissenting); id. at 2050-51 (Gorsuch, J.,

dissenting).

Alternatives

Federal defendants have alternative means to pursue interlocutory review of a

district court’s Bivens extension order without seeking to expand the collateral order

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doctrine. These options—qualified immunity interlocutory appeals and 28 U.S.C.

§ 1292(b)—reinforce the Supreme Court’s call for a narrow collateral order doctrine.

Federal defendants may combine a challenge to a Bivens extension order with

an interlocutory challenge to a denial of qualified immunity. As we said in Big Cats

of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853 (10th Cir. 2016), “[T]he court has

jurisdiction over the question of whether a Bivens remedy exists [when] it [i]s

sufficiently implicated by the qualified immunity defense.” Id. at 856 (citing Wilkie,

551 U.S. at 549 n.4). Here, PA Osagie initially appealed the denial of qualified

immunity in addition to the Bivens extension component of the district court’s order,

but he abandoned that argument. The BOP defendants could still raise qualified

immunity at summary judgment and appeal any denial of that issue along with a

challenge to a Bivens extension.

The BOP defendants argue that having to tether Bivens extension challenges to

interlocutory appeals of qualified immunity denials “would incentivize defendants to

raise qualified-immunity arguments that are unlikely to succeed on appeal solely to

provide jurisdiction for a stronger appeal concerning the allowance of a Bivens

remedy.” Suppl. Aplt. Reply Br. at 3-4. This concern is overblown, as the plethora

of interlocutory appeals of qualified immunity denials indicates.13 And if the

13 About 40 percent of all circuit court qualified immunity appeals from 2004 to 2015 (excluding 2009) were interlocutory from denials of qualified immunity. Alexander A. Reinert, Asymmetric Review of Qualified Immunity Appeals, 20 J. Empirical Legal Stud. 4, 6 n.8, 22 & n.48, 57 (2023).

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government defendant decides a non-frivolous qualified immunity defense is not

possible in a given case, it may pursue an appeal under § 1292(b).

In § 1292(b), Congress provided for interlocutory review of a district court

order “not otherwise appealable” when there are “controlling question[s] of law as to

which there is substantial ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate termination of the

litigation.” The Supreme Court has repeatedly pointed to § 1292(b) as a reason to

limit expansion of the collateral order doctrine. In Van Cauwenberghe v. Biard,

486 U.S. 517 (1988), for example, the Court said, “Our conclusion that the denial of

a motion to dismiss on the ground of forum non conveniens is not appealable under

§ 1291 is fortified by the availability of interlocutory review pursuant to 28 U.S.C.

§ 1292(b).” Id. at 529; see also Digit. Equip., 511 U.S. at 883 (“In preserving the

strict limitations on review as of right under § 1291, our holding should cause no

dismay, for the law is not without its safety valve[:] . . . § 1292(b) of Title 28.”);

Mohawk, 558 U.S. at 114 (“We expect that the combination of standard postjudgment

appeals, § 1292(b) appeals, mandamus, and contempt appeals will continue to

provide adequate protection to litigants . . . .”).14

14 As the dissent notes, § 1292(b) applies to non-appealable orders, Dissent at 12 n.8, but that is our point—one reason to deny Cohen review to a Bivens extension order is that § 1292(b) is an interlocutory alternative. The dissent ignores the Supreme Court’s repeated invocation of § 1292(b) as a reason to reject Cohen treatment. And given the Supreme Court’s refusals to recognize new Bivens claims, federal defendants should not have trouble showing a “substantial ground for difference of opinion” when a district court has extended Bivens in a given case.

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Adding yet another avenue for interlocutory review “risks additional, and

unnecessary, appellate court work” that might “turn[] out to be unnecessary” if these

alternatives are used or the litigation is simply allowed to continue. Johnson, 515

U.S. at 309.15

Rulemaking Preference

In 1990, Congress enacted “legislation designating rulemaking, ‘not expansion

by court decision,’ as the preferred means for determining whether and when

prejudgment orders should be immediately appealable,” which adds “special force” to

the Court’s “admonition” to keep the collateral order doctrine narrow and selective.

Mohawk, 558 U.S. at 113 (quoting Swint, 514 U.S. at 48).

The collateral order doctrine’s history leading to congressional action is

instructive. Cohen expansion mostly began “in the early 1960s, . . . culminating in

the 1985 decision of Mitchell,” which extended the doctrine to include denials of

qualified immunity. Lloyd C. Anderson, The Collateral Order Doctrine: A New

“Serbonian Bog” and Four Proposals for Reform, 46 Drake L. Rev. 539, 540 (1998).

Mitchell was seen as “something of a departure from established doctrine.” Pfander,

15 We also note that Bivens claims are often accompanied—as in this case—by FTCA claims. Because we apply the FTCA’s judgment bar to claims within the same action, Est. of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 859 (10th Cir. 2005), resolution of an FTCA claim in the district court may obviate the need for appeal of a related Bivens claim. Because we “must apply the collateral order doctrine with an eye towards preserving judicial economy and avoiding the harassment and cost of a succession of separate appeals from the various rulings in a single case,” Tucker, 36 F.4th at 1034 (quotations omitted), this is yet another reason to decline to extend the collateral order doctrine here.

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supra, at 1397. Concerns mounted about doctrinal inconsistency and the

“congestion, delay, and expense” involved in litigating further expansions.

Anderson, supra, at 540-51; Bryan Lammon, Finality, Appealability, and the Scope

of Interlocutory Review, 93 Wash. L. Rev. 1809, 1842 n.180 (2018) (calling the

collateral order doctrine “the most maligned rule of federal appellate jurisdiction”).

In response, Congress created a Federal Courts Study Committee to consider

the issue. Anderson, supra, at 540-41. The Committee recommended the Supreme

Court define the collateral order doctrine using rulemaking instead of applying Cohen

on a case-by-case basis. Staff of Fed. Cts. Study Comm., Jud. Conf. of the U.S.,

Report of the Federal Courts Study Committee 95 (1990).

Based on the Committee’s recommendation, Anderson, supra, at 541,

Congress recognized rulemaking as the preferred process to define the collateral

order doctrine. First, in 1990, it amended the Rules Enabling Act to authorize the

Supreme Court to adopt rules “defin[ing] when . . . a district court [order] is final for

the purposes of appeal under section 1291.” Federal Courts Study Committee

Implementation Act of 1990, Pub. L. No. 101-650, § 315, 104 Stat. 5104, 5115

(codified at 28 U.S.C. § 2072(c)). Second, in 1992, it empowered the Court to

“prescribe rules, in accordance with section 2072 . . . , to provide for an

[interlocutory] appeal . . . that is not otherwise provided for under [§ 1292].” Federal

Courts Administration Act of 1992, Pub. L. No. 102-572, § 101, 106 Stat. 4506, 4506

(codified at 28 U.S.C. § 1292(e)); see also Mohawk, 558 U.S. at 113-14.

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The Supreme Court declared that Congress’s choice to prefer rulemaking to

judicial decision in this area “warrant[s] the Judiciary’s full respect.” Mohawk, 558

U.S. at 114 (alterations omitted) (quoting Swint, 514 U.S. at 48). In Wampler, we

said that “[o]ut of deference to the rubric Congress has created, . . . any request for

expansion of the Cohen doctrine should be directed to the rules committee, not this

court.” 624 F.3d at 1338. The Mohawk Court suggested that rulemaking may be the

only way to expand the collateral order doctrine: “Any further avenue for immediate

appeal[s]”—beyond “standard postjudgment appeals, § 1292(b) appeals, mandamus,

and contempt appeals”—“should be furnished, if at all, through rulemaking, with the

opportunity for full airing it provides.” 558 U.S. at 114.16 It described case-by-case

expansion of Cohen as “the blunt, categorical instrument of § 1291 collateral order

appeal.” Id. at 112 (quotations omitted).

Justice Thomas’s Mohawk concurrence underscored that “Congress, which

holds the constitutional reins in this area, has determined that such value judgments

are better left to the ‘collective experience of bench and bar’ and the ‘opportunity for

full airing’ that rulemaking provides.” Id. at 118-19 (Thomas, J., concurring in part)

(quoting Mohawk, 558 U.S. at 114 (majority opinion)). He also observed that courts

make case-by-case determinations and are not positioned to “subordinate the realities

16 See also Microsoft Corp., 582 U.S. at 39-40 (denying Cohen treatment because decisions about finality “are to come from rulemaking, . . . not judicial decisions in particular controversies or inventive litigation ploys”). But see Shoop, 142 S. Ct. at 2043 n.1 (expanding the collateral order doctrine through judicial decision).

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of each case . . . to generalized conclusions about the ‘likely’ costs and benefits of

allowing an exception to the final judgment rule in an entire ‘class of cases.’”

Id. at 118.

Here, the BOP defendants ask us to write another exception into § 1291 in

tension with a congressional enactment and in conflict with the expressed preference

of two constitutional branches—Congress and the Supreme Court—for rulemaking

over case-by-case creations of Cohen exceptions. We decline to do so.

B. The BOP Defendants Have Failed to Meet Their Burden

The BOP defendants have not shown that Bivens extension orders are

effectively unreviewable—the third Cohen factor. As noted above, “the decisive

consideration is whether delaying review until the entry of final judgment ‘would

imperil a substantial public interest’ or ‘some particular value of a high order.’”

Id. at 107 (majority opinion) (quoting Will, 546 U.S. at 352-53). Will explained that

prior Supreme Court cases had “marshaled” values including “honoring the

separation of powers, preserving the efficiency of government and the initiative of its

officials, respecting a State’s dignitary interest, and mitigating the government’s

advantage over the individual.” 546 U.S. at 352-53.

The BOP defendants invoke two of those values. First, they argue that

interlocutory appeals of Bivens extension orders, like appeals of qualified immunity

denials, would serve government efficiency and initiative. Second, they contend

such appeals would reduce separation of powers concerns. We are not persuaded and

adhere to the Will dicta.

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Bivens, Qualified Immunity, Efficiency, and Initiative

The BOP defendants argue we should expand Cohen because “Bivens-

extension orders raise similar concerns for collateral-order purposes” as “orders

denying qualified immunity”: “‘preserving the efficiency of government . . . and the

initiative of its officials.’” Suppl. Aplt. Reply Br. at 4-5 (quoting Will, 546 U.S.

at 352). But the differences between a qualified immunity affirmative defense and a

Bivens claim undermine this argument.

a. Efficiency

The BOP defendants’ argument that we should allow immediate appeal of the

Bivens extension order to promote government efficiency proves too much. They

contend that subjecting them to trial would waste resources. But that is far from clear.

First, expanding the collateral order doctrine to Bivens extension orders would

undermine the efficiency rationale underlying the final judgment rule: “Permitting

piecemeal, prejudgment appeals . . . undermines efficient judicial administration and

encroaches upon the prerogatives of district court judges, who play a special role in

managing ongoing litigation.” Mohawk, 558 U.S. at 106 (quotations omitted).

Second, and relatedly, the BOP defendants’ argument seems premised on an

assumption that the district court improvidently extended Bivens to cover Mr. Mohamed’s

claims and that prompt reversal therefore should be available. But the relative merits of

the issue proposed for interlocutory review should not affect the collateral order doctrine

analysis. As the Supreme Court instructed in Mohawk, courts applying the Cohen test

should not “engage in an individualized jurisdictional inquiry” with an eye toward

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whether “the litigation at hand might be speeded, or a particular injustice averted.”

Id. at 107 (alterations and quotations omitted). Thus, even if the BOP defendants are

correct that the district court erred in extending Bivens, that is not a valid reason to

expand Cohen and compromise § 1291’s avoidance of piecemeal appeals.

Third, the BOP defendants’ argument could be deployed to seek interlocutory

review of Rule 12(b)(6) dismissals of many types of claims against federal officials. The

Supreme Court has warned us not to accept such arguments. See Digit. Equip., 511 U.S.

at 873 (noting that failure to state a claim is insufficient for Cohen treatment).

Fourth and finally, qualified immunity adequately “preserv[es] the efficiency of

government,” Will, 546 U.S. at 352, when a Bivens claim is brought against a federal

official.

b. Preservation of initiative

Bivens extension orders do not implicate the same interest in preserving the

initiative of government officials as qualified immunity because Bivens’s structure and

purpose differ from qualified immunity’s.

i. Structure

Bivens is more analogous to § 1983 than to qualified immunity. When the

Supreme Court decided Bivens, it created a claim for constitutional violations by federal

officials. The Court “ha[s] described Bivens as a ‘more limited’ ‘federal analog’ to

§ 1983.” Hernandez v. Mesa (“Hernandez II”), 140 S. Ct. 735, 747 (2020) (quoting

Hartman, 547 U.S. at 254 n.2). Both Bivens and § 1983 enable a plaintiff to sue a federal

or state official, respectively, for a constitutional violation. The Bivens Court explained

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that its implied cause of action derived from “the right of every individual to claim the

protection of the laws, whenever he receives an injury.” 403 U.S. at 397 (quoting

Marbury v. Madison, 1 Cranch 137, 163 (1803)). And unlike a Bivens claim, qualified

immunity is an affirmative defense that may be asserted against either a Bivens or a

§ 1983 claim. See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999), abrogated on other

grounds by Pearson v. Callahan, 555 U.S. 223 (2009).

ii. Purpose

Bivens and qualified immunity serve distinct purposes. Qualified immunity’s

underlying rationale is to preserve officer initiative by protecting officials from liability

and trial. As the Supreme Court said in Mitchell, “The conception animating the

qualified immunity doctrine . . . is that where an official’s duties legitimately require

action in which clearly established rights are not implicated, the public interest may

be better served by action taken with independence and without fear of

consequences,” including “the general costs of subjecting officials to the risks of

trial.” 472 U.S. at 525-26 (quotations omitted).

In Will, the Court explained that qualified immunity appeals fit the collateral order

doctrine because “the burden of trial is unjustified” where “the action was reasonable in

light of the law as it was,” and that “[t]he nub of qualified immunity is the need to induce

officials to show reasonable initiative when the relevant law is not clearly established.”

546 U.S. at 353 (quotations omitted).

In short, qualified immunity enables both Bivens and § 1983 defendants to do their

jobs without unduly second-guessing their exposure to liability or trial. It gives

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government officials “breathing room to make reasonable but mistaken judgments about

open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

By contrast, “[t]he purpose of Bivens is to deter individual federal officers . . .

from committing constitutional violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61,

70 (2001). Like § 1983, Bivens gives plaintiffs a chance to vindicate their constitutional

rights.

The BOP defendants argue that the risk of erroneous Bivens extension orders

will sap their initiative unless they can challenge allowance of Bivens claims through

an immediate appeal. See Aplt. Br. at 7 (“[E]xtending Bivens remedies to new

contexts . . . entail[s] . . . ‘the risk that fear of personal monetary liability and

harassing litigation will unduly inhibit officials in the discharge of their duties.’”

(quoting Egbert, 142 S. Ct. at 1807)). But federal defendants already have the

qualified immunity defense, which addresses those very concerns.

In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court said its

“cases have accommodated . . . conflicting concerns” about constitutional violations

by government officials and “the risk that fear of personal monetary liability and

harassing litigation will unduly inhibit officials in the discharge of their duties . . . by

generally providing government officials performing discretionary functions with a

qualified immunity.” Id. at 638. And as the Sixth Circuit said, “To the extent that

defendants are concerned about litigating meritless cases, qualified immunity more

than adequately protects government officials from the burdens of litigation.”

Himmelreich, 5 F.4th at 662.

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Separation of Powers

The BOP defendants argue that “recognizing a Bivens claim places great stress

on the separation of powers.” Aplt. Br. at 35 (quoting Egbert, 142 S. Ct. at

1807 n.3).17 Their abstract invocation of separation of powers falls short of what the

Supreme Court requires to create a new category of interlocutory appeals in light of

the countervailing considerations we identify here, including that expanding the

collateral order doctrine in the face of § 1291’s final judgment rule raises separation

of powers concerns.

In Will, the Supreme Court made clear that “honoring the separation of

powers,” 546 U.S. at 352, does not mean that every kind of district court order that

raises a separation of powers issue is effectively unreviewable after final judgment

under the third Cohen factor. Will discussed Nixon v. Fitzgerald, 457 U.S. 731

(1982), as its primary example of sufficiently weighty separation of powers concerns

to justify interlocutory review. Will, 546 U.S. at 352.

A review of Nixon is instructive. A discharged Air Force employee sued

former President Nixon seeking damages for official acts of alleged retaliation

against the plaintiff, who “embarrass[ed] . . . his superiors” when he testified before

17 In Egbert, the district court “declined to extend a Bivens remedy to” the plaintiff’s First and Fourth Amendment Bivens claims, “and entered judgment.” 142 S. Ct. at 1802. The plaintiff appealed, the court of appeals reversed, and the Supreme Court reversed, holding the district court properly declined to recognize a Bivens claim. Id. The appeals were not interlocutory, so the Court did not address whether separation of powers concerns called for expansion of the collateral order doctrine.

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Congress about Defense Department cost overruns. 457 U.S. at 733-34. The district

court denied a motion for summary judgment, ruling that the former president was

not entitled to absolute immunity. Id. at 740-41. The court of appeals refused to

apply the collateral order doctrine and “dismissed summarily.” Id. at 741. The

Supreme Court disagreed, exercised interlocutory review, and held the former

president was entitled to absolute immunity from damages liability. Id. at 758. The

Court said the collateral order doctrine applied because the case involved “absolute

immunity,” a “serious and unsettled question,” and “the special solicitude due to

claims alleging a threatened breach of essential Presidential prerogatives under the

separation of powers.” Id. at 742-43 (quotations omitted). Further, the denial of

absolute immunity “raise[d] unique risks to the effective functioning of government”

“[b]ecause of the singular importance of the President’s duties.” Id. at 751.18

Will said the Nixon Court allowed an immediate appeal because of “the

compelling public ends rooted in the separation of powers that would be

compromised by failing to allow immediate appeal.” 546 U.S. at 352 (citations,

alterations, and quotations omitted). Although Will left open the possibility of

18 In United States v. Nixon, 418 U.S. 683 (1974), a precursor to Nixon v. Fitzgerald, the Court reviewed on interlocutory appeal the district court’s denial of the president’s motion invoking executive privilege to quash a grand jury subpoena to produce tape recordings. Id. at 686-87. The Court explained that, in this “unique setting,” the lack of immediate review would “require a President of the United States to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review of the ruling,” which “would be unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government.” Id. at 691-92.

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finding a “compelling” separation of powers concern in future cases, id., it counseled

against “the lawyer’s temptation to generalize,” id. at 350. We follow this advice

because using a generalized separation of powers rationale to expand the collateral

order doctrine would defy the Supreme Court’s repeated and increasingly stringent

directives to limit Cohen expansion. It would risk ever-increasing judge-made

categories for interlocutory appellate review.

Bivens extension orders do not raise separation of powers concerns

commensurate with denials of presidential immunity intruding on “essential

Presidential prerogatives,” Nixon, 457 U.S. at 743, or posing “unique risks to the

effective functioning of government,” id. at 751. Nor do they trigger an exigent need

for interlocutory review to resolve a “constitutional confrontation between two

branches of the Government.” United States v. Nixon, 418 U.S. 683, 691-92

(1974).19

When plaintiffs ask courts to recognize new Bivens claims, the separation of

powers concern is whether Congress or the judiciary should provide the answer.

See, e.g., Egbert, 142 S. Ct. at 1802-04, 1806-07; Big Cats of Serenity Springs,

843 F.3d at 860. This concern may explain in part why the Court has recognized

only three types of Bivens claims, Hernandez II, 140 S. Ct. at 741, has been reluctant

19 Will did not say that separation of powers concerns always justify interlocutory review. And it discussed presidential immunity as its only example where separation of powers supported a Cohen exception. The Court did not extend this rationale to qualified immunity, see 546 U.S. at 352-53, and suggested Bivens-related dismissals would not be immediately appealable, id. at 353-54.

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to recognize others, id., and has even signaled the demise of the Bivens doctrine

altogether, Egbert, 142 S. Ct. at 1803. Even so, the Court has not jettisoned Bivens,

which means courts, including the district court here, are obligated to determine

whether a plaintiff has stated a Bivens claim.20 But doing so does not impede the

legislative branch, which could eliminate or authorize the Bivens claim as it sees fit.

In sum, the Supreme Court has recognized that district court orders implicating

separation of powers may be candidates for interlocutory review, but that is as far as

it goes. See Kelly v. Great Seneca Fin. Corp., 447 F.3d 944, 948-49 (6th Cir. 2006)

(“Absolute Presidential immunity protects a substantial public interest in the

separation of powers,” but “[t]he Supreme Court did not say that denials of all forms

of absolute immunity . . . were immediately appealable.”). The BOP defendants’

claim, presented in three briefs, is that Bivens extension orders implicate generalized

concerns about “separation of powers.”21 That is insufficient to meet their burden to

show why Bivens extension orders should receive the same consideration for

interlocutory review as orders denying presidential immunity—the only cases in

20 Relying largely on Justice Gorsuch’s concurrence in Egbert, the dissent would hold that Bivens is dead. Dissent at 1-6. We prefer an express holding from a Supreme Court majority. 21 See Aplt. Br. at 1 (“[E]xtending Bivens remedies . . . would contravene the separation of powers.”); id. at 7, 33, 35, 37; Aplt. Reply Br. at 2, 18, 19; Suppl. Aplt. Reply Br. at 3, 11, 13-14, 17.

35 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 36

which the Court has expanded the collateral order doctrine based on separation of

powers concerns.22

Further, the BOP defendants overlook a countervailing consideration. The

collateral order doctrine is a judicially created exception to Congress’s final

judgment rule embodied in § 1291. See Mohawk, 558 U.S. at 113; Dissent at 2 n.2

(“[F]ederal courts are courts of limited jurisdiction. They possess only the power

authorized by Constitution and statute, which is not to be expanded by judicial

decree.” (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994))). Their requested expansion of the collateral order doctrine to a new class of

cases thus raises the separation of powers concern of how far courts should go in

carving out exceptions to the congressionally enacted final judgment rule.

* * * *

We will not overread Will and extend the collateral order doctrine to any class

of cases that touch on separation of powers concerns. Nor will we ignore the

competing separation of powers concern of creating a categorical exception to the

final judgment rule for Bivens extension orders in the face of Congress’s clear

preference for finality in § 1291 and for rulemaking in §§ 2072(c) and 1292(e). The

22 The BOP defendants argue that “[i]nterlocutory orders denying qualified immunity, and those allowing non-statutory Bivens remedies, both contravene the separation of powers.” Suppl. Aplt. Reply Br. at 3; see also id. at 5. But again, Will never characterized qualified immunity as invoking separation of powers concerns, see 546 U.S. at 352-53, and we show above that Bivens and qualified immunity differ in structure and purpose.

36 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 37

foregoing may explain why the Will Court stopped short of saying that separation of

powers concerns always call for a Cohen interlocutory appeal, and why it then

cautioned against extending Cohen to Bivens extension orders, a matter we turn to

next.

Will Dicta

Will not only indicated separation of powers concerns may not be sufficient to

warrant interlocutory review, but it also cautioned against expanding the collateral

order doctrine to Bivens extension orders. Will stated 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

officer lost [a motion to dismiss] on a Bivens action.” 546 U.S. at 353-54. We are

“bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings,

particularly when the dicta is recent and not enfeebled by later statements.” Utah

Republican Party v. Cox, 892 F.3d 1066, 1079 (10th Cir. 2018) (quotations

omitted).23

The BOP defendants quote Judge Hardiman’s characterization of Will’s

statement as “‘at most’ . . . non-binding ‘drive by dictum.’” Aplt. Br. at 39 (quoting

Graber, 59 F.4th at 612 (Hardiman, J., dissenting)). We give the Will Court more

credit for its statement. After recognizing, as it had before, that the Cohen doctrine is

23 We seem to bind ourselves more strongly to Supreme Court dicta than the Third Circuit. See Graber, 59 F.4th at 609 n.10 (explaining that that court takes Supreme Court dicta as “highly persuasive” (quotations omitted)).

37 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 38

narrow; after warning about generalizations concerning trial burdens; and after

identifying high-order values that might support interlocutory review, the Will Court

expressed concern about expanding the collateral order doctrine “as a matter of right

whenever . . . a federal officer lost [a motion to dismiss] on a Bivens action,”

546 U.S. at 353-54, as the BOP defendants did here. We see this passage as a

thoughtful observation meant to be taken seriously, hardly as “drive-by dictum.”

And we understand it as constraining us from creating a collateral order doctrine

exception for Bivens exception orders.

C. Supreme Court Precedent

The BOP defendants contend that in Hartman and Wilkie, the Supreme Court

recognized Bivens extension orders as a separate category of cases “immediately

appealable . . . in their own right.” Aplt. Br. at 35; see also Suppl. Aplt. Reply Br.

at 2.24 We disagree. Both cases were interlocutory appeals that tied Bivens extension

issues to qualified immunity.

24 The BOP defendants mistakenly argue that “the Supreme Court addressed . . . a Bivens extension on an interlocutory appeal . . . in Hernandez [II].” Aplt. Br. at 35. In that case, the district court granted the government defendants’ motions to dismiss and for summary judgment. See Hernandez v. United States, 757 F.3d 249, 257 n.5 (5th Cir. 2014), on reh’g en banc, 785 F.3d 117 (5th Cir. 2015), vacated and remanded sub nom. Hernandez v. Mesa (“Hernandez I”), 582 U.S. 548 (2017) (per curiam), on remand, 885 F.3d 811 (5th Cir. 2018) (en banc), aff’d, Hernandez II, 140 S. Ct. 735; Hernandez II, 140 S. Ct. at 740 (“The District Court granted [the government defendants’] motion to dismiss, and the Court of Appeals for the Fifth Circuit sitting en banc has twice affirmed this dismissal.”). The plaintiffs appealed from final judgment under § 1291 without the need for the collateral order doctrine. Although Hernandez I said that “Bivens question[s] [are] ‘antecedent’ to” qualified immunity questions, 582 U.S. at 553 (quoting Wood v. Moss, 572 U.S.

38 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 39

In Hartman, the petition for certiorari expressly raised qualified immunity and

linked it to the Bivens extension issue. See Pet. for Certiorari at *I, Hartman, 547

U.S. 250 (No. 04-1495), 2005 WL 1123566. The Court explained it had jurisdiction

to consider the Bivens claim because the qualified immunity analysis “directly

implicated” it. Hartman, 547 U.S. at 257 n.5.

In Wilkie, the Court said that whether a Bivens remedy exists can be addressed

as part of a qualified immunity appeal, 551 U.S. at 549 n.4, not, as the BOP

defendants contend, that a Bivens issue “presented alone and not in conjunction with

a qualified-immunity appeal” would be reviewable under the collateral order

doctrine, Suppl. Aplt. Reply Br. at 1.

In sum, when qualified immunity is at issue on interlocutory appeal, Bivens

extension order issues may be resolved as “directly implicated by the defense of

qualified immunity.” Wilkie, 551 U.S. at 549 n.4 (quoting Hartman, 547 U.S.

at 257 n.5). The BOP defendants contend otherwise, Suppl. Aplt. Reply Br. at 2, but

they ignore that this court and other circuit courts have interpreted Wilkie this way.

In Big Cats of Serenity Springs, we said, “[T]he court has jurisdiction over the

question of whether a Bivens remedy exists [when] it [i]s sufficiently implicated by

the qualified immunity defense.” 843 F.3d at 856 (citing Wilkie, 551 U.S. at 549

744, 757 (2014)), neither that case nor Hernandez II had anything to do with the collateral order doctrine.

39 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 40

n.4).25 Here, the Bivens issue is not “directly implicated by the defense of qualified

immunity.” Wilkie, 551 U.S. at 549 n.4 (quoting Hartman, 547 U.S. at 257 n.5).

Only one BOP defendant raised qualified immunity before the district court and

waived that issue in this appeal.

The BOP defendants counter that “it would make no sense to hold that” Bivens

extension orders are “immediately appealable only when conjoined with a qualified-

immunity appeal.” Suppl. Aplt. Reply Br. at 3. They explain that when the Supreme

Court reviewed Bivens extension orders in Hartman and Wilkie, it could not have

attached the Bivens issue to qualified immunity using pendent jurisdiction26 because

that jurisdictional basis is disfavored. Id.; see Cummings, 913 F.3d at 1235

(providing background on pendent jurisdiction). Thus, they argue, “[T]he Court is

25 See also Pettibone v. Russell, 59 F.4th 449, 453 (9th Cir. 2023) (“Wilkie establishe[d] that, in an interlocutory appeal from a denial of qualified immunity, [an appellate court] necessarily ha[s] jurisdiction to decide whether an underlying Bivens cause of action exists.”); id. at 453-54 (collecting similar holdings from the Third, Fourth, Fifth, Sixth, Seventh, Eighth, and D.C. Circuits). 26 Pendent jurisdiction allows a court to review “otherwise nonfinal and nonappealable lower court decision[s] that overlap[] with an appealable decision” in “two scenarios: (1) when the otherwise nonappealable decision is inextricably intertwined with the appealable decision, or (2) where review of the nonappealable decision is necessary to ensure meaningful review of the appealable one.” Cummings, 913 F.3d at 1235 (quotations omitted). We have exercised pendent jurisdiction in interlocutory appeals from a district court’s denial of qualified immunity. See, e.g., Crowson v. Washington County, 983 F.3d 1166, 1174, 1192 (10th Cir. 2020); Moore v. City of Wynnewood, 57 F.3d 924, 927, 928-31 (10th Cir. 1995).

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best understood as having considered [Bivens] extension orders . . . as immediately

appealable collateral orders in their own right.” Suppl. Aplt. Reply Br. at 1.

We need not resolve whether pendent jurisdiction was the basis for the

Supreme Court’s decisions. We agree with the Sixth Circuit’s statement in

Himmelreich that “[w]hatever the basis for” the Court’s decisions in Hartman and

Wilkie, “there was a predicate denial of qualified immunity,” and without such a

predicate, review of a Bivens extension order is unavailable. 5 F.4th at 661.

The Court has never held that Bivens extensions are independently appealable

under the collateral order doctrine. We decline to break new ground.

D. Circuit Split

Finally, the BOP defendants ask us to create a circuit split. Aplt. Br. at 36.

We are “reluctant” “to go against the tide,” particularly when multiple circuits “are

aligned together.” United States v. Thomas, 939 F.3d 1121, 1130-31 (10th Cir.

2019). We see “no good reason to create a circuit split,” id. at 1134, here.

The Supreme Court in Will recognized separation of powers as a “substantial

public interest” that may justify interlocutory appellate review, but not always. We

have identified countervailing considerations: the Cohen exception to finality is

narrow; Bivens defendants have other avenues for interlocutory review, including

immediate appeals of qualified immunity denials; Congress and the Supreme Court

favor rulemaking over judicial expansion of the collateral order doctrine; Bivens

claims do not implicate the efficiency and government initiative interests underlying

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allowance of interlocutory appeals of qualified immunity denials; expanding the

doctrine puts stress on separation of powers; binding Will dicta discourages a Cohen

exception for Bivens extension orders; and Tenth Circuit case law cautions against

creating circuit splits. We do not think the BOP defendants overcome these

considerations.

III. CONCLUSION

We dismiss the appeal for lack of appellate jurisdiction.

42 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 43

22-1453, Mohamed v. Jones

TYMKOVICH, Circuit Judge, dissenting.

Because I conclude that Bivens claims are no longer judicially cognizable, and that

we have jurisdiction to review (and foreclose) interlocutory rulings recognizing Bivens

claims under the collateral order doctrine, I respectfully dissent.

I. Bivens Doctrine

“Marley was dead, to begin with. There is no doubt whatever about that.”

Charles Dickens, A Christmas Carol

In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388, 391 (1971), the Supreme Court authorized a damages action against federal officials

for alleged violations of the Fourth Amendment.

This act of judicial adventurism “has not worn well.” Logsdon v. U.S. Marshal

Serv., 91 F.4th 1352, 1355 (10th Cir. 2024), petition for rehr’g denied (Apr. 5, 2024).

“Although the Court recognized causes of action under Bivens in two subsequent

cases . . . it is on course to treating Bivens as a relic of the 20th century.”1 Id. The

Majority agrees with this trend. Maj. at 35 (The Court “has even signaled the demise of

Bivens doctrine altogether” but “has not jettisoned” it.). I, however, believe the Court has

relegated it to the dustbin.

1 The Court last authorized a Bivens remedy in 1980, and “[o]ver the past 42 years” it has “declined 11 times to imply a similar cause of action for other alleged constitutional violations.” Egbert v. Boule, 596 U.S. 482, 486 (2022) (listing cases). The Court’s refusal in Egbert makes twelve. Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 44

The Court’s abrogation of Bivens sprang from its recognition that the “judicial

creation of a cause of action is an extraordinary act that places great stress on the

separation of powers.” Nestlé USA, Inc. v. Doe, 593 U.S. 628, 636 (2021) (plurality

opinion). As it explained:

Now long past “the heady days in which this Court assumed common-law powers to create causes of action,” we have come to appreciate more fully the tension between judicially created causes of action and the Constitution’s separation of legislative and judicial power. At bottom, creating a cause of action is a legislative endeavor . . . . Unsurprisingly, Congress is far more competent than the Judiciary to weigh such policy considerations. And the Judiciary’s authority to do so at all is, at best, uncertain. Egbert v. Boule, 596 U.S. 482, 486 (2022) (quoting Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 75 (2001) (Scalia, J., concurring)) (internal quotations and citations omitted).2

The abrogative process has been “gradual, but relentless.”3 Logsdon, 91 F.4th at

1355. Through a series of decisions tracing their lineage back to Chief Justice Burger’s

dissent in Bivens itself, 403 U.S. at 411, the Court has methodically defanged the doctrine

2 In contrast to common-law courts, “[f]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). 3 While the abrogative process may have been gradual, the Court’s hostility to Bivens has increased exponentially in recent years: going from “it is possible that the analysis in the Court’s three Bivens cases might have been different if they were decided today,” Ziglar v. Abassi, 582 U.S. 120, 134 (2017), to “if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.” Egbert, 596 U.S. at 502. 2 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 45

by placing additional hurdles in the way of Bivens claims. In Egbert, the Court

summarized the evolution of Bivens’s analytical framework:

To inform a court’s analysis of a proposed Bivens claim, our cases have framed the inquiry as proceeding in two steps. First, we ask whether the case presents “a new Bivens context”—i.e., is it “meaningful[ly]” different from the three cases in which the Court has implied a damages action. Second, if a claim arises in a new context, 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.” If there is even a single reason to pause before applying Bivens in a new context, a court may not recognize a Bivens remedy. 596 U.S. at 492 (quoting Ziglar v. Abbasi, 582 U.S. 120, 136, 140 (2017)) (alteration in

original) (internal quotation and citations omitted).

But even this restrictive two-step framework caused problems. See Id. at 502

(“What distinguishes the first step from the second? What makes a context ‘new’ or a

factor ‘special’? And, most fundamentally, on what authority may courts recognize new

causes of action even under these standards?”) (Gorsuch, J., concurring). These problems

persisted because none of the Court’s changes addressed Bivens’s fundamental flaw: it is

a constitutionally impermissible extrajudicial act placing “great stress on the separation

of powers.” Nestlé, 593 U.S. at 636.

The “special factors” analysis prescribed under the Court’s two-step framework

illustrates this conundrum. Under the first step, courts were required to ask whether the

case presented a “new Bivens context.” Ziglar, 582 U.S. at 139–140. And a “new

context arises when there are potential special factors that previous Bivens cases did not

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consider.” Egbert, 596 U.S. at 492 (citing Ziglar, 582 U.S. at 140). But the second step

also requires courts to consider whether “special factors indicat[e] that the Judiciary is at

least arguably less equipped than Congress to weigh the costs and benefits of allowing a

damages action to proceed.” Id. (internal quotations omitted).

Given that both steps mandate consideration of “special factors,” it was “hard to

see the difference between the analyses conducted in the two steps.” Logsdon, 91 F.4th

at 1356. Recognizing this, the Court explained that the steps “often resolve to a single

question: whether there is any reason to think that Congress might be better equipped to

create a damages remedy.” Egbert, 596 U.S. at 492. See also Logsdon, 91 F.4th at

1356–57 (“If there was any doubt concerning whether the ‘special factors’ in [the first

step] were somehow different from the ‘special factors’ to be considered in the second

step, that doubt was dissipated [in] Egbert[.]”).

With that insight, the Court distilled the inquiry to its constitutional essence and

established the controlling Bivens test: “A court faces only one question: whether there is

any rational reason (even one) to think that Congress is better suited to weigh the costs

and benefits of allowing a damages action to proceed.” Egbert, 596 U.S. at 496

(emphasis in original); and see Logsdon, 91 F.4th at 1355 (adopting this test).

In my view, Egbert’s single question test dealt Bivens a coup de grâce. See, e.g.,

Egbert, 596 U.S. at 503 (“It seems to me that to ask the question is to answer it.”)

(Gorsuch, J., concurring). As Justice Gorsuch observed:

If the costs and benefits do not justify a new Bivens action on facts so analogous to Bivens itself, it’s hard to see how they ever could. And if the only question is whether a court is 4 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 47

“better equipped” than Congress to weigh the value of a new cause of action, surely the right answer will always be no. Doubtless, these are the lessons the Court seeks to convey. I would only take the next step and acknowledge explicitly what the Court leaves barely implicit. Id. at 504. The lesson I take away is that the “right answer” to whether to recognize a Bivens

cause of action “will always be no.” Id. As I read it, Egbert’s test is always self-

defeating because underlying every Bivens case are two “rational reason[s]” to “think that

Congress is better suited to weigh the costs and benefits of allowing a damages action to

proceed.” Id. at 496 (emphasis in original and internal quotations omitted).

The first is the Court’s increased appreciation for “the tension between” judicially

created causes of action and “the Constitution’s separation of legislative and judicial

power.” Hernandez v. Mesa, 589 U.S. 93, 100 (2020). The second is a court’s inability

to “predict the systemwide consequences of recognizing a cause of action under Bivens.

That uncertainty alone is a special factor that forecloses relief.” Egbert, 596 U.S. at 493

(internal citations omitted and emphasis added). Indeed, these twin factors preclude

relief even “when the facts are virtually the same” as those of Bivens, or the two cases to

which the Court extended its cause of action, Carlson v. Green, 446 U.S. 14 (1980), and

Davis v. Passman, 442 U.S. 228 (1979). Logsdon, 91 F.4th at 1355. See, e.g., Egbert,

596 U.S. at 504 (“If the costs and benefits do not justify a new Bivens action on facts so

analogous to Bivens itself, it’s hard to see how they ever could.”) (Gorsuch, J.,

concurring).

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If even the Bivens, Carlson, and Davis fact patterns are no longer judicially

cognizable, then the question after Egbert is not whether an order impermissibly

“exten[ds]” Bivens, Maj. at 20, it is whether to “recogniz[e] a cause of action under

Bivens” at all. Egbert, 596 U.S. at 491. And because the twin special factors are present

in every Bivens case, drumming up others amounts to illusory pretext. Maj. at 35 (The

Court “has even signaled the demise of the Bivens doctrine altogether . . . . ”); Logsdon,

91 F.4th at 1355 (cognizable Bivens claims “appear[] to comprise a null set.”); Silva v.

United States, 45 F.4th 1134, 1140 (10th Cir. 2022) (“[W]e are left in no doubt that

expanding Bivens is not just a disfavored judicial activity, it is an action that is

impermissible in virtually all circumstances.”) (internal quotations and citations omitted).

To arrive at Bivens’s death is to return to its congenital defect: “recognizing a

Bivens cause of action is an extraordinary act that places great stress on the separation of

powers[.]” Egbert, 596 U.S. at 498 n.3 (internal quotations omitted). Armed with this

understanding, I next consider whether district court rulings recognizing Bivens claims

are immediately reviewable collateral orders.

II. Bivens Rulings and the Collateral Order Doctrine

A. The Collateral Order Doctrine

We have jurisdiction over “appeals from all final decisions of the district courts.”

28 U.S.C. § 1291. But what constitutes a final decision?

A final decision is generally one that concludes the litigation. Will v. Hallock, 546

U.S. 345, 349 (2006). This means that a district court’s denial of a motion to dismiss is

generally not a final decision because it does not end the litigation. Cf. 28 U.S.C. § 1291.

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But the “collateral order doctrine accommodates a small class of rulings, not

concluding the litigation, but conclusively resolving claims of right separable from, and

collateral to, rights asserted in the action.” Will, 546 U.S. at 349 (citing Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)) (internal quotations omitted).

See also Edward H. Cooper, 15A Fed. Prac. & Proc. Juris. (Wright & Miller) § 3911 (3d

ed. updated Apr. 2023) (“The only finality required is that the district court has made its

final determination of the matter in question.”).

These interlocutory rulings are immediately appealable when they: “[1]

conclusively determine the disputed question, [2] resolve an important issue completely

separate from the merits of the action, and [3] [are] effectively unreviewable on appeal

from a final judgment.” Will, 546 U.S. at 349 (internal quotations omitted). This so

called “Cohen test” permits immediate review of rulings “too important to be denied

review and too independent of the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated.” Cohen, 337 U.S. at 546.

B. Application of the Cohen Test

I would hold that orders recognizing Bivens claims are “final” under § 1291 and

the collateral order doctrine, rendering them immediately appealable. See Graber v. Doe

II, 59 F.4th 603, 611 (3rd Cir. 2023) (Hardiman, J., dissenting), cert. denied sub nom.

Boresky v. Graber, 144 S. Ct. 681 (2024).

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Because the third factor is the fulcrum of the analysis, I discuss Cohen’s factors in

reverse order.4

1. Factor 3 – Effectively Unreviewable on Appeal from Final Judgment

“[W]hen asking whether an order is effectively unreviewable if review is to be left

until later,” what “counts” is whether the delay “imperil[s] a substantial public interest.”

Will, 546 U.S. at 353. See also Cohen, 337 U.S. at 546 (an order is effectively

unreviewable when it presents an issue “too important to be denied review . . . until the

whole case is adjudicated.”). The “separation of powers” is a “substantial public

interest.” Will, 546 U.S. at 352–53.5

A substantial public interest is imperiled if its delayed vindication results in the

“very harm” sought to be avoided. Sell v. United States, 539 U.S. 166, 176–77 (2003).

4 As the Majority acknowledged, the other two Circuits to have considered this issue both assumed without deciding that a Bivens ruling satisfies the first and second Cohen factors. Himmelreich v. Fed. Bureau of Prisons, 5 F.4th 653 (6th Cir. 2021) (predating Egbert); Graber, 59 F.4th at 610. 5 Although Will contains passing dictum concerning the interlocutory reviewability of Bivens authorizations, it predated Egbert by 16 years. Since deciding Will, the Court has “come to appreciate more fully the tension between judicially created causes of action and the Constitution’s separation of legislative and judicial power[.]” Egbert, 596 U.S. at 491 (internal quotations omitted). And it has acknowledged that “recognizing a Bivens cause of action ‘is an extraordinary act that places great stress on the separation of powers[.]’” Id. at 498 n.3 (quoting Nestlé, 593 U.S. at 636). This modern conception of Bivens is consistent with Will’s acknowledgement that “honoring the separation of powers” is a “particular value of a high order” warranting interlocutory review. Will, 546 U.S. at 346. See also Graber, 59 F.4th 612–13 (Hardiman, J., dissenting) (“The defense that no Bivens cause of action lies is just like qualified immunity” in that it is “timely from the moment an official is served with a complaint.”) (quoting Will, 546 U.S. at 346).

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Recognizing a claim premised on an “impermissible” intrusion by “the federal courts,”

Helstocki v. Meanor, 442 U.S. 500, 505–06 (1979), irreparably harms every branch of

government, the litigants, and the public. It irreparably harms the judiciary and the

claimants by “hold[ing] out [a] kind of false hope, and in the process invit[ing] still more

protracted litigation destined to yield nothing.” Egbert, 596 U.S. at 504 (Gorsuch, J.,

concurring). It irreparably harms the legislature by “arrogating legislative power” and

upsetting “the careful balance of interests struck by the lawmakers.” Hernandez, 589

U.S. at 100; see also Egbert, 596 U.S. at 492 (“a court likely cannot predict the

systemwide consequences of recognizing a cause of action under Bivens.”) (internal

quotations omitted). It irreparably harms the executive branch, both abstractly by

impairing government functioning, interfering with executive autonomy, and chilling

high-level policy making, and tangibly by imposing “time and administrative costs

attendant upon intrusions resulting from the discovery and trial process.” Ziglar, 582

U.S. at 134, 141–42. Finally, its zombie existence harms the public writ large because,

absent its formal abrogation, Congress has no incentive to legislate in the space. Instead,

potential claimants are left with a brain-dead cause of action sustained by life support.

Because the judicial process itself is the injury, these harms are a bell that cannot

be unrung later in the litigation. See, e.g., Egbert, 596 U.S. at 496, 498 n.3 (Bivens so

imperils the “separation of powers,” and so “impair[s] governmental interests,” that

courts have a responsibility to sua sponte “evaluate any grounds that counsel against

Bivens relief”—even those not raised by the parties.). See also Nixon v. Fitzgerald, 457

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U.S. 731, 743 (1982) (Courts should show “special solicitude” toward “threatened

breach[es]” of the “separation of powers.”).6

While the Majority acknowledges that “district court orders implicating separation

of powers concerns may be candidates for interlocutory review,” Maj. at 36, it resists

finding so here by concluding that the “[s]eparation of powers concerns about Bivens

extension orders do not necessarily satisfy the third Cohen factor[.]” Id. at 20. Rather,

the Majority argues, “separation of powers” concerns sufficient to satisfy Cohen’s third

factor are effectively limited to orders “denying presidential immunity[.]” Id. at 35

(discussing Nixon, 457 U.S. at 742–43).

I take the Court at its word. It said that “recognizing a Bivens cause of action is an

extraordinary act that places great stress on the separation of powers.” Egbert, 596 U.S.

at 498 n.3 (emphasis added and internal quotations omitted). And it said that “honoring

the separation of powers”—not presidential immunity alone—is a “particular value of a

high order” warranting interlocutory review. Will, 546 U.S. at 346 (emphasis added).

Taken together, these edicts plainly support jurisdiction for Bivens-recognizing orders.

This does not mean that every “class of case[] that touch[es] on separation of

powers concerns” warrants Cohen treatment. Maj. at 37. As the Majority illustrates, the

collateral order doctrine itself implicates “competing separation of powers concern[s]”

6 Compare less weighty interests warranting interlocutory review under the collateral order doctrine, including Cohen, 337 U.S. at 546–47 (order rejecting the applicability of security laws enacted after the initiation of derivative shareholder suits) and Praxis Properties, Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 61 (3d Cir. 1991) (orders denying requests for a litigation stay). 10 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 53

such that its membership class must be “stringent[ly] protected. Maj. at 37, 21. I agree

with those concerns, as far as they go.7 But here we must determine the greater harm:

recognizing Bivens claims or modestly expanding the collateral order doctrine.

Bivens-authorizing orders warrant Cohen treatment because “Bivens, Davis, and

Carlson represent the only instances in which the Court has approved of an implied

damages remedy under the Constitution itself.” Ziglar, 582 U.S. at 131 (emphasis

added). Put another way, “Bivens actions are [a] very limited” category of case posing

unique Constitutional harms. Graber, 59 F.4th at 609. The collateral order doctrine does

not rise to this level. Tucker v. Faith Bible Chapel Int'l, 36 F.4th 1021, 1033 (10th Cir.

2022), cert. denied, 143 S. Ct. 2608 (2023) (“Immediate appeals under the collateral

order doctrine are disfavored . . . because ‘too many interlocutory appeals can cause

harm.’”) (quoting Johnson v. Jones, 515 U.S. 304, 309 (1995)).

At bottom, courts may recognize new collaterally appealable orders. See, e.g., Los

Lobos Renewable Power, LLC v. Americulture, Inc., F.3d 659, 668 (10th Cir. 2018)

(extending the collateral order doctrine to decisions not to apply state anti-SLAPP

statutes); Tucker, 36 F.4th at 1033 (“Immediate appeals under the collateral order

doctrine . . . ‘are the exception, not the rule[.]’”) (quoting Johnson, 515 U.S. at 309). In

fact, the Court recognized a new collateral order in a footnote only thirteen days after

deciding Egbert. Shoop v. Twyford, 596 U.S. 811, 817 n.1 (2022) (extending the

7 See Los Lobos, 885 F.3d at 667 (“Whatever the merits of discarding Cohen, the Court did not take that path in Mohawk, and we may not blaze it here.”) (discussing Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 114–119 (2009) (Thomas, J., concurring in part and concurring in the judgment)) (internal citations omitted). 11 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 54

collateral order doctrine to prisoner transport orders under the All Writs Act). What

courts cannot do after Egbert, however, is recognize Bivens claims.

“[R]ecognizing a Bivens cause of action is an extraordinary act that places great

stress on the separation of powers[.]” Egbert, 596 U.S. at 498 n.3 (internal quotations

omitted). Any delay in foreclosing this judicial intrusion into the legislature’s domain

imperils a weighty public interest in the separation of powers and should be vindicated at

the earliest possible opportunity. For these reasons, I would hold that Bivens-recognizing

orders are “effectively unreviewable” under the third Cohen factor. 8

8 The Majority also argues that “alternative means to pursue interlocutory review” counsels against reviewing Bivens-recognizing orders under the collateral order doctrine. Maj. at 22. But the existence of “possible alternate means of vindication” does not “defeat collateral order jurisdiction.” Los Lobos, 885 F.3d at 667.

For example, the “discretionary availability” of interlocutory review under 28 U.S.C. § 1292(b) does not bar collateral recognition of orders authorizing Bivens claims. Section 1292(b) applies only to orders “not otherwise appealable” whereas § 1291 conveys appellate jurisdiction over “all final decisions of the district courts[.]” Since § 1292(b) applies only to non-appealable orders, it does not limit the appealability of collateral final orders (which are appealable) under § 1291. Will, 546 U.S. at 350 (The collateral order doctrine is “not [] an exception” to § 1291,” but a “practical construction of it.”). See also Graber, 59 F.4th at 617 n.3 (Hardiman, J., dissenting) (“Courts have tools other than the collateral order doctrine to facilitate interlocutory appeals of important legal issues . . . [their existence] does not forbid us from recognizing new collateral orders[.]”).

Independently, the order before us would not satisfy § 1292(b) because it only applies to questions on which there is “substantial ground for difference of opinion.” As I explained above, there is no “substantial ground” to dispute the permissibility of orders recognizing Bivens claims.

Nor does Fed. R. Civ. P. 54(b)’s appellate certification procedure limit collateral recognition. “The collateral order doctrine and Rule 54(b) apply to entirely distinct types of orders: the doctrine applies only to orders completely separate from the merits of the claims for relief, and the Rule applies only to orders that resolve the merits of one or more of those claims. Rule 54(b), therefore, does not limit review of orders that are 12 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 55

2. Factors 2 & 1

Cohen’s second factor asks whether the challenged order resolves “an important

issue completely separate from the merits.” Will, 546 U.S. at 349. The fact question in

any Bivens claim is whether the defendant violated the claimant’s constitutional rights,

while the legal Bivens question is whether the claimant can sue at all. But see Egbert,

596 U.S. at 504 (“[T]he right answer will always be no”) (Gorsuch, J., concurring).

Liability for a claim and the cognizability of a cause of action are completely

separate questions. And it is axiomatic that the existence of a cause of action—and so the

ability to sue—is an “important question” to a lawsuit. Thus, answering the Bivens

question resolves an important question completely separate from the merits, and so

satisfies Cohen’s second factor. See Los Lobos, 885 F.3d at 667 (Cohen recognized an

order that was “a prerequisite to the cause of action itself.”).

Finally, Cohen’s first factor asks whether the challenged ruling conclusively

determines the disputed question. Will, 546 U.S. at 350. A decision authorizing a Bivens

cause of action conclusively determines the judicial cognizability of that claim. But-for

appealable under the collateral order doctrine.” 10 Daniel R. Coquillette, Gregory P. Joseph, Georgene M. Vairo & Chilton Davis Varner, Moore’s Federal Practice, § 54.27[2](c) (3d ed. 2024) (emphasis in original). See, e.g., Valley Ranch Dev. Co. v. F.D.I.C., 960 F.2d 550, 555–56 (5th Cir. 1992) (Stating that because the district court’s order “is immediately appealable as a collateral order[,] [a] rule 54(b) judgment is not necessary.”); In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1118 (7th Cir. 1979) (“We hold that, despite the refusal of the trial court to enter judgment pursuant to Rule 54(b), we have jurisdiction to review the order . . . as a collateral order.”); Crowder v. Housing Auth. of City of Atlanta, 908 F.2d 843, 845–846 (11th Cir. 1990) (“[T]he absence of a Rule 54(b) determination does not mean that a decision of the district court is not a collateral order within the meaning of Cohen.”). 13 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 56

the court’s legal conclusion that the cause of action exists, there can be no claim. See

Elhady v. Unidentified CBP Agents, 18 F.4th 880, 884 (6th Cir. 2021) (“[I]f there is no

cause of action, courts should stop there.”); Vanderklock v. United States, 868 F.3d 189,

197 (3d Cir. 2017) (The existence of a Bivens claim is a “threshold question of law[.]”).

The authorization of a Bivens claim thus satisfies Cohen’s first factor.

The collateral order doctrine means nothing if it does not accommodate immediate

review of orders authorizing causes of action that have been abrogated by virtue of the

grave constitutional harms they inflict. Certainly, this is a “small class of rulings” too

“important to be denied review” falling within the doctrine’s ambit. Will, 546 U.S. at

349. Accordingly, I conclude that orders recognizing Bivens claims are “final” under

§ 1291 and the collateral order doctrine, and so would permit their immediate appellate

review.

III. The District Court’s Bivens Ruling

Having addressed appellate jurisdiction, I turn to the district court’s ruling.

The district court erred because it focused almost exclusively on whether Mr.

Mohamed’s Bivens claims presented a new context. But after Egbert “[a] court faces

only one question: whether there is any rational reason (even one) to think that Congress

is better suited to weigh the costs and benefits of allowing a damages action to proceed.”

Egbert, 596 U.S. at 496 (internal quotations omitted). See also Logsdon, 91 F.4th at 1358

(“[W]e conclude our analysis should focus on that single question.”).

14 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 57

Myriad rational reasons suggest that Congress is better suited to weigh the costs

and benefits of permitting Mr. Mohamed’s Bivens claims. Ever present is the Court’s

increased appreciation for “the tension between” judicially created causes of action and

“the Constitution’s separation of legislative and judicial power.” Hernandez, 589 U.S. at

100. As is the court’s inability to “predict the systemwide consequences of recognizing a

cause of action under Bivens.” Egbert, 596 U.S. at 493 (internal quotations omitted).

The existence of these special factors alone “counsel against Bivens relief.” Id. at 498

n.3.

Of course, other “special factors” also warrant dismissal, as they always will. For

example, the Appellants represent a “new category of defendants.” Logsdon, 91 F.4th at

1358. Although the Carlson defendants were BOP employees, there they were BOP

medical officials who allegedly provided inadequate medical care. 446 U.S. at 54 n.1.

Here, the defendants are BOP prison guards. See Logsdon, 91 F.4th at 1358 (Agents of

the U.S. Marshals Service presented a different category of defendant than agents of the

Federal Bureau of Narcotics). Not only are these positions categorically different, but

prison guards and prison medical officials also have different duties and perform different

functions—i.e., one’s primary responsibility is to provide medical care and the other’s is

to oversee security.9 Id. (“Of particular relevance here is a duty of the USMS that was

not a factor considered in Bivens.”).

9 One of the named BOP Officers—Anthony Osagie—is alleged to be a “medical provider” in addition to being a correctional officer. Even though Officer Osagie is alleged to have a medical role, Mr. Mohamed’s Bivens claims against him are not for inadequate medical care, like the claims in Carlson. 446 U.S. at 54 n.1. Instead, Officer 15 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 58

And independently, “a court may not fashion a Bivens remedy if Congress already

has provided, or has authorized the Executive to provide, an alternative remedial

structure.” Egbert, 596 U.S. at 493. In Silva, we concluded that the BOP’s

Administrative Remedy Program is an alternative remedial structure. 45 F.4th at 1141

(“[T]he availability of the BOP’s Administrative Remedy Program offers an

independently sufficient ground to foreclose [an Eighth amendment excessive force]

Bivens claim.”). That program was available to Mr. Mohamed. In fact, he utilized it. Its

existence alone is enough to foreclose his Bivens claims.10 Id.

For these reasons, I conclude that Mr. Mohamed’s Bivens claims are not judicially

cognizable. The district court erred when it failed to dismiss them.

IV. Conclusion

Bivens claims are contrary to the constitutional separation of judicial and

legislative powers. Recognizing this, the Court created a self-defeating test in Egbert—

effectively tolling Bivens’s death knell. The consequence is that neither Mr. Mohamed,

nor any other claimant, has viable Bivens claims.

Osagie is alleged to have violated the Eighth Amendment by failing to stop Mr. Mohamed’s alleged battery. For this reason, Mr. Mohamed’s Bivens claim would reach a “new category of defendant” because the conduct under scrutiny is related to his duties as a correctional officer—not those of a medical provider. 10 The existence of the Civil Rights of Institutionalized Persons Act, the Prison Litigation Reform Act, and the Prison Rape Elimination Act is another special factor counseling against Mr. Mohamed’s Bivens claims. Ziglar, 582 U.S. at 148 (The existence of “legislative action suggesting that Congress does not want a damages remedy” is yet another “special factor” counseling against recognizing a Bivens claim.). 16 Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 59

Moreover, because I would recognize Bivens authorizing orders as “final” under

§ 1291 and the collateral order doctrine, I would reach the merits, vacate the district

court’s order, and remand with instructions to dismiss those claims.

For these reasons, I respectfully dissent.