Rhonda Fleming v. FCI Tallahassee Warden

127 F.4th 837

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 3, 2025
• Docket: 23-10252
• Status: Published

Opinion

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[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-10252 ____________________

RHONDA FLEMING, Plaintiff-Appellee, versus UNITED STATES OF AMERICA, et al.,

Defendants,

FCI TALLAHASSEE WARDEN,

Defendant-Appellant. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 2 of 43

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Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:20-cv-00545-WS-MJF ____________________

Before ROSENBAUM, ABUDU, and WILSON, Circuit Judges. ROSENBAUM, Circuit Judge: Patience is a virtue. At least, that’s the message Title 28, United States Code, Section 1291, conveys. Section 1291 gives us jurisdiction over district courts’ “final decisions.” In contrast, we ordinarily lack jurisdiction over district courts’ decisions that don’t end the litigation—meaning litigants must wait for a final judg- ment before they can appeal. But a judge-made rule called the “col- lateral-order doctrine” offers a limited exception to this final-deci- sion rule. The collateral-order doctrine extends § 1291’s jurisdic- tional grant to interlocutory appeals of “a small class of collateral rulings that, although they do not end the litigation, are appropri- ately deemed ‘final.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (cleaned up). This case requires us to determine whether to expand the collateral-order doctrine to permit an im- mediate appeal when a district court recognizes a cause of action under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), outside the context of addressing a qualified- immunity claim. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 3 of 43

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We join all four other circuits that have considered this ques- tion in declining to move the fenceposts of the collateral-order doc- trine. The doctrine is a minimal exception to the general rule that only final judgments are appealable. It covers only orders that threaten important interests that become moot if an appeal is not interlocutory. But orders recognizing Bivens claims, unlike orders denying immunity from those claims, do not fall into this class. So we dismiss this interlocutory appeal for lack of jurisdiction. I. Factual Background

Plaintiff-Appellee Rhonda Fleming was incarcerated at Fed- eral Correctional Institution Tallahassee (“FCIT”) beginning in Oc- tober 2018. Eventually, she was assigned to the A-South housing unit. According to Fleming, that’s when her living conditions de- teriorated so much that they significantly affected her health. In the A-South housing unit, she alleges, mold covered the ceiling, walls, and windowsills. And it grew when rainwater re- peatedly leaked in through the roof and walls. 1 A physician

1 This appeal follows the district court’s ruling on a motion to dismiss, so we

accept the facts alleged in the complaint as true. Myrick v. Fulton County, 69 F.4th 1277, 1294 (11th Cir. 2023). We also take judicial notice of a recent re- port from the Department of Justice’s Office of the Inspector General. That report corroborated much of Fleming’s complaint, such as the presence of leaks, mitigated only by “patchwork repairs, including plastic covering on damaged ceiling areas and feminine-hygiene products on leaking windows,” and of a “black substance” in housing units and showers. INSPECTION OF THE FEDERAL BUREAU OF PRISONS’ FEDERAL CORRECTIONAL INSTITUTION TALLA- HASSEE, U.S. DEPT. OF JUST. OFF. OF THE INSPECTOR GEN. at 12–17 (Nov. 2023), https://perma.cc/EHL7-QZFJ. The report describes these and other issues as USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 4 of 43

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informed Fleming that these conditions caused her respiratory sys- tem “extreme distress.” Fleming repeatedly complained to prison officials, including Defendant-Appellant Warden Erica Strong, but the leaks continued and the mold remained. The dangerous conditions didn’t end with mold. Fleming’s complaint also alleges that her housing unit exposed her to asbes- tos. And then in 2020, the COVID-19 virus raced through the prison’s close quarters. Prison officers and inmates who worked in food service contracted the virus and spread it. Fleming com- plained to Warden Strong and filed an administrative complaint about “overcrowding and denial of space to socially distance.” But Strong’s response did not stop COVID’s spread. Flem- ing asserts that Strong failed to quarantine infected persons or maintain social distancing to slow the spread of disease. Ulti- mately, Fleming asserts, she contracted COVID twice. She became severely ill and required weeks of hospitalization. Another inmate died. At the hospital, Fleming’s doctor determined that Fleming’s “respiratory system was already in extreme distress due to the ex- tended exposure to toxic mold” when she contracted COVID. 2

“serious infrastructure problems that created unsanitary and potentially un- safe conditions.” Id. at i. See also Glenn Thrush, Justice Dept. Watchdog Describes Unsanitary Conditions at Florida Prison, N.Y. TIMES (Nov. 8, 2023), https://perma.cc/RS2D-S894. 2 The Centers for Disease Control have concluded that “COVID-19 likely in-

creases the risk for fungal infections because of its effect on the immune USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 5 of 43

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II. Procedural Background

A. District Court Proceedings

After lodging several complaints with prison administrators, in November 2020 Fleming filed this pro se suit against Defendants Federal Correctional Institution Tallahassee Warden Erica Strong, the United States, and other federal officials and agencies in district court. The operative complaint, against only Strong and the United States, alleges violations of the Eighth Amendment’s prohi- bition of cruel and unusual punishment. It also asserts violations of Florida tort law. Fleming seeks injunctive relief and damages from both Defendants under the Eighth Amendment and Bivens and the Federal Tort Claims Act (“FTCA”). 3 Strong and the United States moved to dismiss the com- plaint on several grounds, including a failure to exhaust adminis- trative remedies, the discretionary-function exemption to FTCA li- ability, Strong’s qualified immunity from Fleming’s Eighth Amend- ment claim, and Fleming’s failure to show an Eighth Amendment violation under the deliberate-indifference standard. The magistrate judge recommended granting the motion to dismiss as to almost all Fleming’s claims, including all her claims

system.” Fungal Diseases and COVID-19, CTRS. FOR DISEASE CONTROL (May 8, 2024), https://perma.cc/HXX7-S7BD. 3 Fleming also brought claims of retaliation under the First Amendment and

negligent failure to protect (related to an attack by another prisoner). The district court dismissed those claims, and they are not relevant here. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 6 of 43

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against Strong. Fleming v. United States, No. 4:20-cv-545, 2022 WL 17542931 (N.D. Fla. Oct. 3, 2022). Construing Fleming’s Eighth Amendment claim against Strong as a “conditions-of-confinement” claim, the magistrate judge concluded that precedent precluded it. Id. at *8. In the magistrate judge’s view, Ziglar v. Abbasi, 582 U.S. 120 (2017), and Egbert v. Boule, 596 U.S. 482 (2022), required the con- clusions that Fleming’s claim was distinguishable from the kind of damages claims against federal officials that the Supreme Court previously recognized and that “special factors” counseled against the provision of a judicial remedy. Id. at *8–9. For those reasons, the magistrate judge concluded that Bivens provided for no remedy here. The magistrate judge did not address qualified immunity. Id. The district court partially rejected the magistrate judge’s recommendation. Fleming v. United States, No. 4:20-cv-545, 2022 WL 17091878 (N.D. Fla. Nov. 21, 2022). The court viewed Flem- ing’s Eighth Amendment claim against Strong as similar to the claim in Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990). Id. at *1. In Powell, we held that an inmate sufficiently alleged asbestos expo- sure to make out an Eighth Amendment claim against prison offi- cials. 914 F.2d at 1465. So based on Powell, the district court con- cluded that a Bivens remedy existed for Fleming’s Eighth Amend- ment claim against Strong. Fleming, 2022 WL 17091878, at *1–2. Like the magistrate judge, the district court did not address quali- fied immunity. Id. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 7 of 43

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B. Strong’s Appeal

Strong timely appeals the district court’s order. She makes two arguments. First, Strong urges that we enjoy jurisdiction over this interlocutory appeal under the collateral-order doctrine. And second, she asserts that the district court erred in failing to dismiss all Fleming’s damages claims against Strong under Bivens, Ziglar, and Egbert. Strong does not address the issue of qualified immun- ity. 4 Fleming responds, with the help of appointed counsel, that we lack jurisdiction over this interlocutory appeal and that the dis- trict court’s decision was correct, in any case. After careful review of the record and thoughtful oral argu- ment from both parties, we conclude that decisions recognizing Bivens causes of action fall outside the scope of the collateral-order doctrine. So we dismiss this appeal for lack of jurisdiction and do not reach the merits of the district court’s order.

4 Like the other courts to consider cases in similar postures, we confront the

issues as presented and do not probe the decision not to present a qualified- immunity argument on appeal. We do note that Strong raised a qualified- immunity defense in her motion to dismiss the Bivens claims. Because quali- fied immunity is a defense from suit, not just liability, see Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), should Strong again raise a qualified-immunity de- fense, the district court should give it due consideration at the earliest possible time. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 8 of 43

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III. Standard of Review

We review de novo whether a complaint states a cognizable Bivens claim. See Alvarez v. U.S. Immigr. & Customs Enf’t, 818 F.3d 1194, 1200 (11th Cir. 2016). Whether we enjoy jurisdiction over this interlocutory appeal “presents a question of law subject to ple- nary review.” SmileDirectClub, LLC v. Battle, 4 F.4th 1274, 1277 (11th Cir. 2021) (en banc). IV. Legal Background

Before we launch into the analysis of the question here, we take a few moments to paint the legal landscape in which today’s question arises. As we’ve mentioned, this case involves two areas of law: (1) Bivens and (2) interlocutory appeals. So we divide our preliminary discussion of the applicable law in the same way. Sec- tion A briefly explains the current state of the law as it relates to Bivens actions. Section B discusses the collateral-order doctrine. A. Bivens Claims After Ziglar and Egbert

Fleming sues under Bivens and its progeny. This line of cases recognizes “an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). Bivens itself held that a plaintiff had a cause of action against federal officials who allegedly violated the Fourth Amendment by using excessive force when they engaged in a warrantless search and arrest. Bivens, 403 U.S. at 397. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 9 of 43

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The Supreme Court has extended Bivens’s implied cause of action and damages remedy twice. First, it recognized a damages claim under the Fifth Amendment’s Due Process Clause in a suit against a congressman for gender discrimination in hiring. Davis v. Passman, 442 U.S. 228 (1979). Second, it recognized a Bivens claim for violations of the Eighth Amendment’s Cruel and Unusual Pun- ishments Clause when prison officials failed to transfer a severely asthmatic inmate to an appropriate facility and mistreated the in- mate after an asthma attack, leading to his death. Carlson v. Green, 446 U.S. 14, 16 n.1, 20 (1979). Since Carlson, though, the Supreme Court has stepped back from recognizing new Bivens actions. In Ziglar v. Abbasi, the Court declared that “expanding the Bivens remedy is now a disfavored ju- dicial activity.” Ziglar, 582 U.S. at 135 (internal quotation marks omitted). Then, a few years later, in Egbert v. Boule, the Court summa- rized the two-step analysis for determining whether a Bivens cause of action exists. 596 U.S. at 492. “First, we ask whether the case presents a new Bivens context—i.e., is it meaningfully different from the three cases in which the Court has implied a damages ac- tion.” Id. (internal quotation marks omitted). And if so, second, “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.” Id. (internal quotation marks omitted). USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 10 of 43

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At the first step, many differences in context can be “mean- ingful.” Ziglar, 582 U.S. at 139. For instance, we consider the “the rank of the officers involved; the constitutional right at issue; [and] the generality or specificity of the official action.” Id. at 140. And at the second step, many “special factors” can preclude recognition of a Bivens cause of action. Egbert, 596 U.S. at 492 (quoting Ziglar, 582 U.S. at 136). These include things like potential “‘economic and governmental concerns,’ ‘administrative costs,’ and the ‘im- pact on governmental operations systemwide.’” Id. at 491. (quot- ing Ziglar, 582 U.S. at 134, 136). The Supreme Court roots its concern with new Bivens ac- tions in separation-of-powers principles. The potential effects of recognizing an implied cause of action mean that doing so impli- cates a “range of policy considerations . . . at least as broad as the range . . . a legislature would consider.” Id. (omission in original) (quoting Bivens, 403 U.S. at 407 (Harlan, J., concurring in the judg- ment)). And these policy considerations, the Court has said, are Congress’s meat and potatoes, not the courts’. Id. B. The Collateral-Order Doctrine

As we’ve mentioned, this case concerns our jurisdiction over an interlocutory appeal of a district-court order recognizing a Bivens cause of action. Generally, the circuit courts have jurisdic- tion over only “final decisions” from district courts. 28 U.S.C. § 1291. But 28 U.S.C. § 1292(b) makes some interlocutory appeals available: district courts may certify orders involving “controlling questions of law” for immediate review at the circuit court’s USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 11 of 43

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discretion. See id. And the courts have used a “practical rather than a technical” construction of § 1291 to allow interlocutory appeals of “a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final.’” Mohawk, 558 U.S. at 106 (cleaned up). To determine whether a matter falls within the bounds of the “collateral-order doctrine,” we look to Cohen v. Beneficial Indus- tries Loan Corp., 337 U.S. 541 (1949), which sets out three factors to consider. The three “Cohen factors” allow immediate appeals of only those nonfinal decisions “[(1)] that are conclusive, [(2)] that resolve important questions separate from the merits, and [(3)] that are effectively unreviewable on appeal from the final judgment in the underlying action.” Mohawk, 558 U.S. at 106 (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995) (summarizing Cohen, 337 U.S. at 546)). If that sounds like a severe restriction on interlocutory ap- peals, that’s by design. The Supreme Court has repeatedly cau- tioned against too broad a construction of the collateral-order doc- trine. Indeed, the Court has warned, the collateral-order doctrine must “never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered.” Id. at 106 (citation omitted in original) (quoting Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)). We have also emphasized the “narrow,” “limited,” “modest . . . [and] selective” scope of the collateral-order doctrine. SmileDirectClub, 4 F.4th at 1278 (quoting Firestone Tire & Rubber Co. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 12 of 43

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v. Risjord, 449 U.S. 368, 374 (1981), Flanagan v. United States, 465 U.S. 259, 265 (1984), and Will v. Hallock, 546 U.S. 345, 350 (2006)). As the Supreme Court has explained, the limited scope of the collateral-order doctrine reflects both “the strong bias of § 1291 against piecemeal appeals,” Digit. Equip., 511 U.S. at 872, and the values that the appellate-jurisdiction statutes reflect. Those values include judicial efficiency and respect for the “special role” of dis- trict-court judges in managing their cases. Mohawk, 558 U.S. at 106 (quoting Firestone Tire, 449 U.S. at 374). This case requires us to focus on the third Cohen factor: whether the decision would be “effectively unreviewable on ap- peal” without an immediate appeal. 5 Id. (quoting Swint, 514 U.S. at 42). Of course, a delayed appeal will never put a litigant in ex- actly the same position they would have been in if an interlocutory appeal had been available. But too broad a view of the “effectively unreviewable” test could encompass “almost every pretrial or trial order . . . in the sense that relief from error can never extend to rewriting history.” Digit. Equip., 511 U.S. at 872. So the collateral- order doctrine applies only when delayed review “would imperil a

5 Strong argues that the district court’s order meets all three Cohen factors;

Fleming contests only the “effectively unreviewable” prong, so that is what we review. Still, we share the Tenth Circuit’s uncertainty as to whether a Bivens-extension order has “‘complete separation’ from the merits” as the sec- ond Cohen factor requires. Mohamed v. Jones, 100 F.4th 1214, 1224 n.12 (10th Cir. 2024) (quoting Kell v. Benzon, 925 F.3d 448, 455 (10th Cir. 2019). USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 13 of 43

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substantial public interest or some particular value of a high order.” Mohawk, 558 U.S. at 107 (internal quotation marks omitted). Perhaps the classic type of order meriting immediate review is that denying absolute, qualified, or another immunity. These entitlements provide “immunity from suit rather than a mere de- fense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). So an immunity is “effectively lost if a case is erroneously permitted to go to trial.” Id. Immunity doctrines also serve “compelling pub- lic ends” like preventing “disruption of governmental functions” (in the case of qualified immunity) or “honoring the separation of powers” (in the case of absolute immunity). Will, 546 U.S. at 352 (cleaned up). For these reasons, immunity denials are generally immediately appealable, including when they relate to a qualified- immunity defense in a Bivens suit. See Mitchell, 472 U.S. at 526. That said, the collateral-order doctrine does not allow for the im- mediate review of every order “denying an asserted right to avoid the burdens of trial.” Will, 546 U.S. at 351. Rather, the order must bear on “avoidance of a trial that would imperil a substantial public interest”—like the interests immunity doctrines protect. Id. at 353. Not only that, but Congress has expressed its preference that the Supreme Court expand the collateral-order doctrine through rulemaking, not case-by-case adjudications. Mohawk, 558 U.S. at 113. In response to a series of Supreme Court decisions expanding the collateral-order doctrine, Congress passed two laws in the early 1990s clarifying the Court’s authority to promulgate rules about in- terlocutory appellate jurisdiction. First, the Federal Courts Study USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 14 of 43

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Committee Implementation Act of 1990 allowed the Court to make general rules “defin[ing] when a ruling of the district court is final for the purposes of appeal under section 1291.” Pub. L. No. 101-650, § 315, 104 Stat. 5104, 5115 (codified at 28 U.S.C. § 2072(c)). Second, the Federal Courts Administration Act of 1992 amended 28 U.S.C. § 1292 to allow the Court to “prescribe rules . . . to pro- vide for an appeal of an interlocutory decision to the courts of ap- peals that is not otherwise provided for” in § 1292. Pub. L. No. 102- 572, § 101, 106 Stat. 4506, 4506 (codified at 28 U.S.C. § 1292(e)). The Court understood these reforms as urging rulemaking rather than case-by-case expansions of the collateral-order doc- trine. See, e.g., Swint, 514 U.S. at 48 (calling rulemaking “[t]he pro- cedure Congress ordered” for defining “final” decisions); Cunning- ham v. Hamilton County, 527 U.S. 198, 210 (1999) (describing Con- gress’s “designation of the rulemaking process as the way to define . . . when an interlocutory order is appealable” (quoting Swint, 514 U.S. at 48)); Mohawk, 558 U.S. at 114 (“Any further avenue for im- mediate appeal of such rulings should be furnished, if at all, through rulemaking”); id. at 118–19 (Thomas, J., concurring in part and in the judgment) (“Congress, which holds the constitutional reins in this area, has determined that [the] value judgments” re- quired by Cohen should be made through rulemaking, not “case-by- case adjudication”). And the Supreme Court has explained why this approach makes sense. Even when we adjudicate individual cases, our ap- proach to collateral-order expansion is “blunt [and] categorical”: USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 15 of 43

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we assess the appealability of “the entire category to which a claim belongs.” Mohawk, 558 U.S. at 112, 107 (quoting Digit. Equip., 511 U.S. at 883, 868). We don’t conduct an “individualized jurisdic- tional inquiry” into the value of allowing an interlocutory appeal on any particular set of facts. Id. at 107 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 473 (1978)). Rather, we must examine and determine whether to allow appeals of each “class of claims, taken as a whole.” Id. And the rulemaking process—which facilitates input from all potentially interested parties and not just those that happen to be litigants in a given case—best suits that kind of broad determination. Id. at 114. In contrast, when a case’s particulars uniquely merit immediate review, § 1292(b)’s mechanism for dis- cretionary appeals better fits that situation. We noted all this recently when, sitting en banc, we unani- mously overturned our decades-old decision that allowed interloc- utory appeals from denials of so-called “state action immunity” in Sherman Act suits. SmileDirectClub, 4 F.4th at 1283. We recognized that what we had colloquially called an “immunity” doctrine was in fact just a “strict standard for locating the reach of ” federal anti- trust law that did not reflect a “value of sufficiently high order” to merit immediate review. Id. at 1279, 1282. In other words, so-called “state action immunity” wasn’t immunity at all; it was a shorthand (and incorrectly imprecise) way of saying, on the merits, that the Sherman Act did not reach government action. That the “negative consequences” of allowing too many interlocutory appeals were significant enough to warrant reversing a decades-old precedent USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 16 of 43

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shows the importance we place on policing the boundaries of the collateral-order doctrine. Id. at 1285 (Pryor, C.J., concurring). V. Discussion

Every other circuit that has considered whether Bivens- recognition and -extension orders6 fall within the collateral-order doctrine when they don’t arise in the context of an appeal from the denial of qualified immunity—four in all—has concluded they don’t. Today, we join them. The collateral-order doctrine permits interlocutory appeals from only a small set of orders. To the extent the doctrine should be broadened beyond its existing borders to categories of other types of orders, we agree with the Supreme Court’s suggestion that rulemaking is the way to do it. No Supreme Court precedent says that the collateral-order doctrine allows interlocutory appeals from Bivens-extension orders in their own right. And in fact, the Court has suggested the opposite. Most importantly, Bivens-

6 The district court here determined that Fleming’s Eighth Amendment claim

was similar enough to a previously recognized Bivens claim to proceed. Flem- ing, 2022 WL 17091878, at *1. That is, the district court did not extend Bivens at all. Instead, it recognized what it viewed as an existing Bivens remedy. Id. Strong asks us to recognize an expansive right of interlocutory appeal from not just Bivens-extension orders but really any order recognizing a Bivens rem- edy, even when a district court determines the facts at hand are substantially identical to those in a recognized Bivens claim. Because we think the same principles limiting interlocutory appeals of Bivens-extension orders apply with at least as much force to Bivens-recognition orders, and because nearly all the relevant precedent involves Bivens-extension orders, we refer throughout the rest of the opinion to Bivens-extension orders. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 17 of 43

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extension orders rarely (if ever) jeopardize the kinds of urgent and weighty interests that require the protection of instantaneous re- view. And if they do in a particular case, qualified immunity well protects those interests. A. Supreme Court precedent has not extended the collat- eral-order doctrine to cover this case.

We first consider Supreme Court precedent. Strong argues that the Court has viewed Bivens-extension orders as “immediately appealable collateral orders in their own right.” We disagree. In fact, the Court’s decisions show otherwise. No Supreme Court case holds that Bivens-extension orders fall within the scope of the collateral-order doctrine. 7 To be sure, in the context of analyzing some interlocutory appeals, the Supreme Court has opined on whether the Bivens remedy should be extended. But it has done so on interlocutory appeal only as a part of its analysis of whether a defendant is entitled to qualified immunity—that is, whether the officer violated a clearly established right of the plaintiff. So to the

7 In three of the panels in other circuits that have tackled this issue, one judge

dissented. Graber v. Doe II, 59 F.4th 603, 611 (3d Cir. 2023) (Hardiman, J., dis- senting); Mohamed v. Jones, 100 F.4th 1214,1235 (8th Cir. 2024) (Tymkovich, J., dissenting); Garraway v. Ciufo, 113 F.4th 1210, 1222 (9th Cir. 2024) (Bumatay, J., dissenting). But tellingly, at least two dissents acknowledge that the Su- preme Court has not extended the collateral-order doctrine to Bivens exten- sions orders. See Graber, 59 F.4th at 611 (Hardiman, J., dissenting) (“It’s hard to predict how the Supreme Court would resolve this conflict.”); Mohamed, 100 F.4th at 1241 (Tymkovich, J., dissenting) (describing the possibility of “recogniz[ing] new collaterally appealable orders.” (emphasis added)). USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 18 of 43

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extent the Court has reviewed Bivens-extension orders in an inter- locutory context, it’s explained that qualified immunity, not a Bivens extension, has provided the jurisdictional hook. Take Hartman v. Moore, 547 U.S. 250 (2006). There, the plain- tiff sued postal inspectors under Bivens for First Amendment viola- tions in the form of an allegedly retaliatory criminal prosecution. 547 U.S. at 252–55. The postal inspectors moved for summary judg- ment on qualified-immunity grounds. Id. at 255. That meant they had to show that (1) the defendants violated their First Amendment rights, and (2) those rights were clearly established at the time the defendants violated them. After the district court denied the motion, the D.C. Circuit affirmed in an interlocutory appeal. Id. The circuit court’s decision focused on whether establishing a violation of the plaintiff’s rights—the first element of the qualified-immunity test—required a retaliatory-prosecution Bivens plaintiff to show that government officials lacked probable cause for the prosecution. Moore v. Hart- man, 388 F.3d 871, 877 (D.C. Cir. 2004). The circuit court deter- mined that the existence of probable cause did not preclude a re- taliatory-prosecution Bivens claim (under clearly established law), so the defendants’ claim that they had probable cause for the pros- ecution did not give them qualified immunity. Id. at 878–86. The Supreme Court granted certiorari and held that retalia- tory-prosecution Bivens plaintiffs must show that the defendants lacked probable cause when they prosecuted the plaintiffs. Hart- man, 547 U.S. at 265–66. In reaching this conclusion, the Court USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 19 of 43

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rejected the argument that it had “exceeded its appellate jurisdic- tion” by reaching a merits issue on appeal from a denial of qualified immunity. Id. at 257 n.5. The Court acknowledged that its holding went to the substance of the Bivens claim. Id. But, it concluded, reaching that issue was jurisdictionally proper because that issue was “directly implicated by the defense of qualified immunity and properly before us on interlocutory appeal.” Id. At no point did the Court suggest that interlocutory appeal was appropriate simply because the case involved an extension of Bivens. Next up, in Wilkie v. Robbins, 551 U.S. 537 (2007), the Court heard a case about a Bivens claim for Fifth Amendment violations by Bureau of Land Management employees “accused of harass- ment and intimidation aimed at extracting an easement across pri- vate property.” 551 U.S. at 541. The district court denied the em- ployees’ motion to dismiss (and their motion for summary judg- ment) on qualified-immunity grounds. Id. at 548–49. The govern- ment defendants appealed up to the Supreme Court. As in Hartman, the Court reached the Bivens issue only by traveling the qualified-immunity road. In the context of resolving the qualified-immunity issue, the Court held that special factors counseled against recognition of the plaintiff’s Bivens action. Id. at 550–62. As the Court expressly explained, it found its interlocutory jurisdiction based on the “the same reasoning” as in Hartman. Id. at 549 n.4. In other words, the decision to recognize a Bivens cause of action was “directly implicated by the defense of qualified im- munity and properly before us on interlocutory appeal,” just like USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 20 of 43

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the determination of the required elements of the claim in Hart- man. Id. (quoting Hartman, 547 U.S. at 257 n.5). So the Court (and the court of appeals) had jurisdiction over the defendants’ interloc- utory appeal. Id. Far from indicating that Bivens-extensions orders are “immediately appealable orders in their own right,” the Court explained that the orders were appealable because they involved qualified immunity. Finally, because Defendants invoke them, we take a moment to discuss the Court’s two decisions in the Hernandez v. Mesa litiga- tion. In that litigation, the parents of a Mexican teenager brought a Bivens claim against a Border Patrol agent who shot their son across the border. Hernandez v. Mesa (Hernandez I), 582 U.S. 548, 550 (2003) (per curiam). But as we explain below, the Hernandez decisions never dealt with the collateral-order doctrine at all, so they do not bear on our inquiry here. The district court dismissed all the plaintiffs’ claims, and the plaintiffs appealed. See Hernandez v. United States, 802 F. Supp. 2d 834, 846–47 (W.D. Tex. 2011); Hernandez v. Mesa, No. EP-11-CV-331- DB, slip op. at 9 (W.D. Tex. Feb. 17, 2012); Hernandez v. United States, 757 F.3d 249, 254–57 (5th Cir. 2014). Because the district court dis- missed all the plaintiffs’ claims, by definition, the appeal to the Fifth Circuit was not an interlocutory appeal; it was an appeal from a final decision. See Hernandez v. United States, 757 F.3d at 257 n.5. As a result, nothing that the Fifth Circuit decided bore on the collat- eral-order doctrine. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 21 of 43

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On appeal to the Fifth Circuit, a panel of that court held that the plaintiffs’ complaint against the Border Patrol agent failed to state a Fourth Amendment violation. But the court concluded that the complaint did state a Fifth Amendment claim for which a Bivens remedy was available, and qualified immunity did not shield that claim. Id. at 256–57, 263–80. The Fifth Circuit reheard the case en banc and agreed as to the dismissal of the Fourth Amendment claim but reversed on the Fifth Amendment decision, holding that the Border Patrol agent was entitled to qualified immunity on that claim. Hernandez v. United States, 785 F.3d 117, 121 (5th Cir. 2015) (en banc) (per curiam). The plaintiffs appealed, and the Supreme Court granted certiorari. Hernandez v. Mesa, 580 U.S. 915 (2016). The Court vacated the Fifth Circuit’s decision as to the Fourth Amendment and directed it to examine whether the then- recent Abbasi decision meant the case should be dismissed for lack of an available remedy under Bivens, rather than on Fourth Amend- ment grounds directly. Hernandez I, 582 U.S. at 553–54. As for the Fifth Amendment claim, the Court identified an error in the Fifth Circuit’s reasoning for its grant of qualified immunity and vacated that decision. Id. at 554–55. On remand, the Fifth Circuit determined that the national- security implications of the transnational shooting were a “special factor[]” that foreclosed both Fourth and Fifth Amendment Bivens remedies under Abbasi. Hernandez v. Mesa, 885 F.3d 811, 814–15 (5th Cir. 2018). When the plaintiffs appealed, the Supreme Court again granted certiorari and affirmed the Fifth Circuit’s Bivens analysis. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 22 of 43

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Hernandez v. Mesa (Hernandez II), 589 U.S. 93, 96–99 (2020). In nei- ther Hernandez I nor II did any party or court invoke the collateral- order doctrine. Nor could they have because the underlying appeal to the circuit court and both appeals to the Supreme Court were from indisputably “final decisions” dismissing all the plaintiffs’ claims. For that reason, the Hernandez litigation is not instructive here. See also Mohamed, 100 F.4th at 1233 n.4 (discussing Hernan- dez’s procedural history). In short, the Supreme Court has never previously recog- nized a right of interlocutory appeal in a case like this. If we were to hear such an appeal, it would not just invoke but extend the col- lateral-order doctrine. We now discuss why our sister circuits de- clined to expand the collateral-order doctrine to cover Bivens-exten- sion orders and explain why we agree. B. All four circuits to consider the question have agreed: interlocutory appeals are unavailable for Bivens-ex- tension orders.

Before beginning our own analysis, we consider the other cases where four of our sister circuits have recently analyzed the very issue we face here. In each case, a district court declined to dismiss a Bivens suit under Ziglar and Abbasi. Each defendant ap- pealed the recognition of a Bivens action but did not raise a quali- fied-immunity challenge on appeal. And each circuit court held that it lacked jurisdiction under the collateral-order doctrine. We start with Himmelreich v. Federal Bureau of Prisons, 5 F.4th 653 (6th Cir. 2021). There, the Sixth Circuit considered an appeal USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 23 of 43

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from an order that partially denied a Bivens defendant’s motion for summary judgment. The district court had concluded that, alt- hough the claims presented a new Bivens context, no special factors foreclosed a cause of action. Himmelreich v. Fed. Bureau of Prisons, No. 10-2404, 2019 WL 4694217, at *1 (N.D. Ohio Sept. 25, 2019). But “for some unexplained reason,” the defendant had waived her qualified-immunity defense. Himmelreich, 5 F.4th at 658, 661. The Sixth Circuit held that it lacked jurisdiction over the in- terlocutory appeal under § 1291. Id. at 656. First, the court consid- ered Wilkie and similar cases. But it found them unhelpful because appellate jurisdiction there was “anchored . . . in the defendants’ appeal of the . . . denial of qualified immunity.” Id. at 661. So the court turned to the three Cohen factors to assess whether it enjoyed interlocutory jurisdiction. At the third Cohen factor, the Sixth Cir- cuit determined that the order was not “effectively unreviewable” on appeal from final judgment. That was so, the court reasoned, because, among other reasons, Bivens “provides a plaintiff’s rem- edy” rather than a defendant’s immunity that would be lost if a case proceeded to trial, and the merits of a Bivens claim could be effec- tively reviewed after final judgment. Id. at 662. The Third Circuit next took up the issue in Graber v. Doe II, 59 F.4th 603 (3d Cir. 2023). The district court in Graber denied a Bivens defendant’s motion to dismiss claims that the court con- cluded did not arise in a new Bivens context and, in any event, pre- sented no special factors counseling against recognition of a cause of action. Id. at 607. Later, the district court denied the defendant’s USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 24 of 43

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motion for summary judgment on qualified-immunity grounds. Id. The defendant then appealed the court’s decision permitting the Bivens claim (but waived his challenge to the immunity ruling). Id. A divided Third Circuit panel held it lacked jurisdiction over the appeal. As the Sixth Circuit did in Himmelreich, the Third Cir- cuit emphasized the different aims of immunity doctrines and Bivens. It noted that Bivens concerns “whether courts should be in the business of creating avenues for liability, which is distinct from whether a defendant is immune from suit altogether.” Id. at 609. And, the court reasoned, the liability issue, versus immunity from suit, could be “effectively reviewed” after final judgment. Id. at 610. So the Third Circuit declined to expand the collateral-order doc- trine to include Bivens-extension orders. Next, the Tenth Circuit addressed the appealability of Bivens- extension orders in its thorough and thoughtful decision in Mo- hamed v. Jones, 100 F.4th 1214 (10th Cir. 2024). The suit dealt with a variety of Eighth Amendment Bivens claims against federal Bu- reau of Prisons officials as well as FTCA claims against the United States. The individual defendants moved to dismiss. Some as- serted that Bivens provided no remedy for the claims against them, and another argued for qualified immunity. Id. at 1217. The dis- trict court denied the defendants’ motion, concluding (as relevant here) (1) that the defendant seeking qualified immunity was not entitled to it, (2) that the relevant claims did “not present a new Bivens context, and [(3)] that no special factors counsel[ed] against USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 25 of 43

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recognizing a Bivens claim.” Mohamed v. Huddleston, No. 20-cv- 02516, 2022 WL 22353363, at *3–4 (D. Colo. May 18, 2022). The defendants appealed. But in doing so, none raised qualified-im- munity arguments, instead challenging only the recognition of a Bivens remedy. Mohamed, 100 F.4th at 1217. A divided Tenth Circuit panel, like the Third and Sixth Cir- cuits before it, held that it lacks jurisdiction over the interlocutory appeal of a Bivens-extension order when qualified immunity is not at issue. The Tenth Circuit based its decision on several consider- ations: the narrowness of the collateral-order doctrine, id. at 1225; the inapplicability of Supreme Court precedents that happened to involve review of Bivens extensions but did so only because the in- terlocutory appeals were based on a denial of qualified immunity, id. at 1235; Bivens’s purpose of discouraging and remediating fed- eral officials’ misconduct rather than protecting those officials from suit, id. at 1229–31; and the judicial inefficiencies that might arise from allowing interlocutory appeals of Bivens-extension orders. Id. at 1228. The Tenth Circuit also noted Congress’s preference for the courts to use rulemaking rather than case adjudication to de- termine which types of orders are subject to interlocutory appeals. Id. at 1227. Last, the court pointed out that Bivens defendants had another avenue for interlocutory appeal: seeking permission under 28 U.S.C. § 1292(b). Id. Finally, the Ninth Circuit joined this chorus in Garraway v. Ciufo, 113 F.4th 1210 (9th Cir. 2024). There, the district court de- nied a motion to dismiss a Bivens action on the ground that the USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 26 of 43

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claims did not present a new Bivens context. Id. at 1214. So the defendants appealed. Id. A divided panel held it lacked jurisdiction. Id. at 1221–22. Its reasons were by now familiar: interlocutory ap- peals are available only in limited circumstances, id. at 1215; Con- gress has directed rulemaking as the preferred way to expand those circumstances, id. at 1221; and qualified immunity, not the Bivens remedy, protects government defendants, so decisions about qual- ified immunity, not Bivens extensions, warrant immediate review. Id. at 1217–21. We would not shy away from creating a circuit split if we thought the issue warranted it. But we see no reason to break from our sister circuits here. Cf. Pub. Health Tr. v. Lake Aircraft, Inc., 992 F.2d 291, 295 n.4 (11th Cir. 1993) (“[I]ntercircuit splits on points of law are not all bad. Still, we do listen to other courts.”). We agree with their reasoning and hold that Bivens-extension orders that don’t present a qualified-immunity issue are not immediately ap- pealable under the collateral-order doctrine. We further explain our thinking below. C. The collateral-order doctrine should not be extended to include Bivens-extension orders.

To fall within the scope of the collateral-order doctrine, an order must be “effectively unreviewable on appeal” from a final judgment. Mohawk, 558 U.S. at 106 (quoting Swint, 514 U.S. at 42). But Bivens-extension orders that don’t involve qualified-immunity issues don’t undermine the sorts of interests that justify expanding USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 27 of 43

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a doctrine that we and the Supreme Court have time and again warned against broadening. The problem with allowing interlocutory appeals of Bivens- extension orders is not their significance but their urgency, or to be more precise, their lack of it. Qualified immunity and its immedi- ate review sufficiently protect the interests of Bivens defendants and the executive branch. As for other separation-of-powers concerns with Bivens extensions, they do not spoil when a case is allowed to proceed to trial. So we conclude that Bivens-extension orders sel- dom (if ever) slip through the narrow opening the collateral-order doctrine creates for interlocutory appeal. As a result, we lack juris- diction over this appeal. i. The collateral-order doctrine allows inter- locutory appeals of only decisions that jeopardize interests that are both im- portant and time-sensitive.

As we’ve discussed, the collateral-order doctrine permits in- terlocutory appeals of a small class of decisions that would be “ef- fectively unreviewable” if appeal waited until after trial. Mohawk, 558 U.S. at 106. Decisions about immunities, we’ve noted, are the classic example of “effectively unreviewable” decisions: an immun- ity from trial is lost if the case proceeds to trial. But the Supreme Court has emphasized that not every asserted right to avoid trial justifies immediate appeal: only when a trial would “imperil a sub- stantial public interest” is immediate review necessary. Will, 551 U.S. at 353. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 28 of 43

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In Will v. Hallock, the Supreme Court elaborated on this prin- ciple and even signaled how the collateral-order doctrine applies in cases like this one. Will addressed whether the collateral-order doc- trine applied to a district court’s denial of Bivens defendants’ motion for judgment based on the FTCA’s judgment bar. Id. at 347. The FTCA bars Bivens suits after a judgment in an FTCA action “by rea- son of the same subject matter.” Id. at 348 (quoting 28 U.S.C. § 2676). In Will, a court had dismissed, on procedural grounds, the Will plaintiff’s FTCA suit against the United States. Id. The de- fendant federal agents then sought to apply the FTCA’s judgment bar in the related Bivens suit against them. Id. The district court held that procedural dismissals don’t trigger the judgment bar, so it refused to dismiss the Bivens suit. Id. at 348–49. On an interloc- utory appeal, the Second Circuit affirmed after finding it enjoyed jurisdiction under the collateral-order doctrine. Id. The Supreme Court reversed. It held that the district court’s order was not immediately appealable, so the circuit court had lacked jurisdiction. Id. at 349. The Court emphasized that under Cohen, for an order to be “effectively unreviewable” at the end of district-court litigation, it’s not enough for the order to concern “mere avoidance of a trial.” Id. at 353. Rather, the order must bear on “avoidance of a trial that would imperil a substantial public in- terest.” Id. With this touchstone underfoot, Will found an important difference between the judgment bar and qualified immunity, and it rejected the analogy between the two: while qualified immunity USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 29 of 43

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facilitates the public’s interest in preserving government officials’ “initiative” despite unclear law, the Court observed, the judgment bar prevents duplicative litigation. Id. Then the Court unani- mously rejected the idea that every shield against suit deserves in- terlocutory review: [I]f simply abbreviating litigation troublesome to Government employees were important enough for Cohen treatment, collateral order appeal would be a matter of right whenever the Government lost a mo- tion to dismiss under the Tort Claims Act, or a federal officer lost one 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. 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) (citation omitted). For two reasons, Will’s words weigh heavily upon us when we consider expanding the collateral-order doctrine to encompass a new type of order. First, Will indicates a clear stance against interlocutory ap- peal every time “a federal officer los[es] [a motion to dismiss] on a Bivens action.” Id. at 354. To be sure, Will’s guidance appears in dicta. But as we’ve said more than once, “[T]here is dicta and then there is dicta, and then there is Supreme Court dicta.” Johnson v. Terry, 119 F.4th 840, 861 n.7 (11th Cir. 2024) (alteration in original) (quoting Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006)). The last category is “not something to be lightly cast aside,” and we do USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 30 of 43

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not think it apt to do so here without a clear justification. Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997). Second, Will shows that we look to the rationale for a doc- trine, not just its effects, to understand the interests it protects and thus whether that interest warrants interlocutory appeal. Denials of immunity receive immediate review because immunity exists to limit officials’ exposure to trial. Officials’ interest in avoiding trial justifies immediate review because the interest is not just substan- tial but also time-bound: “a quick resolution . . . is essential” to ful- fill the goals of the qualified-immunity doctrine. Will, 551 U.S. at 353. That is, without immediate review, qualified immunity wrongfully denied would be altogether lost and unrecoverable, at least as to the immunity from suit. But not all reasons for dismissal require such speedy review. So we examine the interests at stake in allowing an interloc- utory appeal here to see whether “delaying review until the entry of judgment would imperil a substantial public interest or some particular value of a high order.” SmileDirectClub, LLC, 4 F.4th at 1282 (citation and internal quotation marks omitted). We keep in mind that what matters is not just the weight of the “interest” or “value” but the extent to which it “effectively may be reviewed and corrected if and when final judgment results.” Cohen, 337 U.S. at 546. “The crucial question . . . is not whether an interest is im- portant in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders.” Mohawk, USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 31 of 43

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558 U.S. at 108. Interlocutory appeals are not for issues that are merely important; they are for issues that are important, now. Defendants argue that Bivens-extension orders jeopardize in- terests that need the special protection of the collateral-order doc- trine. But when we examine the interests at stake, we disagree. Below, we first describe the separation-of-powers interests Bivens extensions allegedly threaten. We then explain that qualified im- munity well protects any time-sensitive executive-branch interests, and any legislative interests are not time-sensitive so as to justify immediate review. ii. Bivens-extension orders touch on executive and legislative interests, but those interests do not justify interlocutory appeals.

Strong argues that an interlocutory appeal of the Bivens-ex- tension order here is necessary to protect a cluster of “separation of powers” interests. In particular, Strong emphasizes, the Su- preme Court has said that recognizing a new Bivens remedy pre- sents a threat to the “separation of legislative and judicial power.” Egbert, 596 U.S. at 491 (quoting Hernandez II, 589 U. S at 100). Be- cause “creating a cause of action is a legislative endeavor,” doing so touches on Congress’s legislative prerogatives and “places great stress on the separation of powers.” Id. at 491, 497 n.3 (quoting Nestlé USA, Inc. v. Doe, 593 U.S. 628, 636 (2001) (plurality opinion)). So the “special factors” test for whether courts should recognize a new Bivens remedy focuses on whether Congress or the judiciary is USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 32 of 43

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better situated to decide whether to permit a Bivens remedy on any given set of facts. Id. at 491–92. The special-factors inquiry protects the separation of Con- gress and the courts. But the special factors themselves concern the functioning of the executive branch. For instance, courts must be wary of how extending Bivens would affect “economic and gov- ernmental concerns, administrative costs, and the impact on gov- ernmental operations systemwide.” Id. at 491 (cleaned up) (quot- ing Ziglar, 582 U.S. at 134, 136). And the Supreme Court has warned that undermining “the initiative of [federal] officials” to act in the face of uncertainty presents perhaps the greatest risk. Will, 546 U.S. at 352–53. Personal liability, the theory goes, might “de- ter[]” officers “from carrying out their duties.” 8 Egbert, 596 U.S. at 499 (internal quotation marks omitted). In Strong’s words, “an im- mediate appeal protects both Congress’s prerogatives to enact causes of action and federal officials’ abilities to discharge their du- ties.” We agree that both interests are important. But as we ex- plain, neither justifies interlocutory appeal of Bivens-extension or- ders.

8 We note, though, that even when Bivens plaintiffs receive a damages award

or settlement payment, the funds rarely come from federal officials’ own pock- ets. See James E. Pfander, Alexander A. Reinert & Joanna C. Schwartz, The Myth of Personal Liability: Who Pays When Bivens Claims Succeed, 72 STAN. L. REV. 561 (2020). USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 33 of 43

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1. Qualified-immunity doctrine ade- quately protects federal officials’ inter- ests against Bivens suits.

To be sure, the threat of trial—and ultimately, liability—may impact a federal official’s conduct. That is, after all, the point. “[T]he purpose of Bivens is to deter the officer.” FDIC v. Meyer, 510 U.S. 471, 485 (1994). So a different doctrine sustains federal officers’ “initiative” in the face of legal threats: qualified immunity. Qualified immunity shields government officials performing discretionary functions so long as their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Mitchell, 472 U.S. at 517 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity provides an “immunity from suit rather than a mere defense to liability; and . . . is effectively lost if a case is erroneously permitted to go to trial.” Id. at 526. And pretrial denials of qualified immunity are immediately appeal- able because the right qualified immunity protects would be lost were the appeal to be delayed until after trial. Id. at 536. Like our sister circuits, we think that “qualified immunity . . . adequately protects government officials from the burdens of liti- gation.” Himmelreich, 5 F.4th at 662; Mohamed, 100 F.4th at 1230; Garraway, 113 F.4th at 1221. As an immunity doctrine—crafted to shield defendants from trial—it is a natural fit for interlocutory ap- peal. Qualified immunity is a defense available to every Bivens de- fendant. And district courts should resolve qualified-immunity USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 34 of 43

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claims at the earliest possible juncture. So even if the district court errs in recognizing a Bivens cause of action, a Bivens defendant can immediately appeal if a district court denies his motion to dismiss on qualified-immunity grounds. By contrast, Bivens is a plaintiff’s cause of action. It is not a defense like qualified immunity. The point of Bivens—like any cause of action—is to deter the defendants from harming would- be plaintiffs and to provide a remedy if deterrence fails. So expand- ing the collateral-order doctrine to cover Bivens-extension orders would use a plaintiff’s remedy as a basis for protecting defendants’ interests. We don’t think that fits within the narrow collateral-or- der doctrine’s exception to the final-decision-appeal rule. Strong argues that the qualified-immunity doctrine and the opening it provides for immediate appeal cannot change the analy- sis of whether Bivens extensions fall under the collateral-order doc- trine. The separation-of-powers limitation on new Bivens actions, Strong asserts, would be “hollow if it does nothing but duplicate pre-existing immunity from suit.” United States v. Stanley, 483 U.S. 669, 686 (1987). But the redundant view is precisely the one Strong would have us adopt: that separation-of-powers concerns with new Bivens actions implicate the same parties and interests as qualified immunity, so Bivens-extension orders enjoy qualified immunity’s privilege of interlocutory review. Rather than hollow out the separation-of-powers concerns with new Bivens claims, we give those concerns force by USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 35 of 43

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recognizing their distinctiveness from qualified immunity and con- sidering how the collateral-order doctrine applies. 2. Bivens-extension orders do not jeop- ardize time-sensitive interests of the legislature.

As we’ve noted, the primary separation-of-powers issue in recognizing a new Bivens context is the potential to infringe on the legislature’s power. See Egbert, 596 U.S. at 491. This understanding is as old as Bivens itself. See Bivens, 403 U.S. at 396 (“The present case involves no special factors counseling hesitation in the absence of affirmative action by Congress.”); see also id. at 411–12 (Burger, C.J., dissenting) (“We would more surely preserve the important values of the doctrine of separation of powers . . . by recommending a solution to the Congress as the branch of government in which the Constitution has vested the legislative power.”). And it continues to animate the Supreme Court’s most recent Bivens cases. See Eg- bert, 596 U.S. at 486 (“[I]n all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts”); Ziglar, 582 U.S. at 136 (“[T]he [special-factors] inquiry must concen- trate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” (emphasis added)). True, the Court has also noted the potential “burdens on Government employees” as a reason to hesitate before recognizing a Bivens action. Ziglar, 582 U.S. at 136. But these burdens—the same as those informing the creation of qualified immunity—are USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 36 of 43

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relevant in the Bivens-extension context only as one of the policy “considerations” that a court would have to weigh before recogniz- ing a new Bivens claim (and which, of course, the Court has told us are to be settled mostly by Congress). See, e.g., Egbert, 596 U.S. at 491. So while the special-factors inquiry may look at some of the same issues as qualified immunity, it sees them from a different per- spective: that of Congress, not of defendants or the executive branch. From this, two points follow. First, as we’ve noted, qualified immunity and interlocutory appeals of qualified-immunity orders better address concerns with Bivens actions’ impact on officers’ “in- itiative.” And second, our understanding of the separation-of-pow- ers risks involved in Bivens-extension orders informs our collateral- order analysis—especially whether those risks are time-sensitive so as to require prejudgment review. We conclude that the separation-of-powers risks that Bivens- extension orders raise don’t justify interlocutory appeal. For start- ers, Will shows that not all decisions touching on separation-of- powers issues merit interlocutory appeal. A comparison with Nixon v. Fitzgerald, 457 U.S. 731 (1982), and other cases where separation-of-powers issues justified imme- diate appeal shows why interlocutory appeal is unavailable here. Strong asserts that Nixon suggests that any “threatened breach” of the separation of powers merits “special solicitude” in the form of an immediate appeal. 457 U.S. at 743. But Nixon shows no such thing. To the contrary, Nixon presents immunity issues, not USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 37 of 43

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separation-of-powers concerns generally, as central to the right of interlocutory review. Nixon arose out of a former Air Force analyst’s suit against President Nixon for an allegedly retaliatory firing. Id. at 733–41. There, the Court afforded “special solicitude” “due to claims alleg- ing a threatened breach of essential Presidential prerogatives under the separation of powers.” Id. at 743 (emphasis added). But threats to the President’s prerogatives are a unique separation-of-powers is- sue. The President’s position in our constitutional structure de- mands “energetic, vigorous, decisive, and speedy” action. Trump v. United States, 603 U.S. 539, 610 (2024) (quoting Clinton v. Jones, 520 U.S. 681, 712 (1997) (Breyer, J., concurring in judgment)). So the President claimed immunity from suit, and the Supreme Court found that claim worthy of immediate review. Nixon, 457 U.S. at 741; see also id. at 743 n.23 (“The immunity question is a pure issue of law, appropriate for our immediate resolution.”). Nixon teaches the same lesson as other cases addressing in- terlocutory review of immunity decisions: immunities promote speedy action by government officials faced with uncertainty. And similarly speedy review of immunity decisions is available to that end. But no immunity claim is on appeal here, only a Bivens-exten- sion order. And the alleged separation-of-power harms to the legislature in the Bivens-extension context are qualitatively different than those to the President in Nixon and other executive-branch cases. Simply put, we see no reason that whatever legislative injuries a Bivens- USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 38 of 43

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extension order inflicts grow worse without immediate review. Congress does not face an impending trial. Congress does not par- ticipate in the suit at all. And Congress’s power to modify or rec- ognize a cause of action does not diminish if a court reviews a Bivens-extension order years rather than months later. In fact, de- layed review might enhance the legislature’s voice by giving it more time to act before an appellate court speaks on the issue. Strong points to general “separation of powers” interests to justify interlocutory appeal, but she gives us little reason to think that those interests come with an expiration date sometime between a district court’s initial Bivens-extension decision and its final judg- ment. This case also contrasts with Shoop v. Twyford, the Supreme Court’s most recent recognition of a new category of immediately appealable order. 596 U.S. 811 (2022). Shoop concerned a vertical separation-of-powers question: when a federal court can order transport of a state prisoner under the All Writs Act. Id. at 824. As part of its 5–4 decision, the Court held that the circuit court properly took jurisdiction of an interlocutory appeal granting a prisoner-transport order. Id. at 817 n.1. By temporarily requiring the state to take an inmate out of prison, “[s]uch an order creates public safety risks and burdens on the State that cannot be reme- died after final judgment.” Id. The Court further cited a prisoner escape during one such movement as evidence that “[t]hese risks are not speculative.” Id. at 822 n.2. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 39 of 43

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In comparison, the purported immediate harms of a Bivens- extension order aren’t just speculative, they’re illogical. Unlike in the All Writs Act context, where state agents may be ordered to take action, with a Bivens-extension order, the legislature is not or- dered to do or not do anything, and the defendant is still able to assert a qualified-immunity defense. Will, too, offers no support for the notion that just any sepa- ration-of-power issue warrants interlocutory appeal. That case cited Nixon to show how a denial of immunity—the President’s— implicated “compelling public ends rooted in the separation of powers.” Will, 546 U.S. at 352 (cleaned up) (quoting Nixon, 457 U.S. at 758, 749). Will noted only that immunity doctrines implicate the separation of powers, not that any separation-of-powers issue is subject to immediate appeal. Even supposing a particular order’s impact on the separation of powers is “substantial,” see Mohawk, 558 U.S. at 107, that impact still must be immediate and irreparable in a way that requires instantaneous review. We think this case is exactly what the Will Court had in mind when it envisioned the need to limit the scope of the collateral- order doctrine so interlocutory appeal doesn’t become “a matter of right whenever . . . a federal officer los[es] [a motion to dismiss] on a Bivens action.” Will, 546 U.S. at 353–54. Finally, the Supreme Court’s recent separation-of-powers analysis in Axon Enterprise, Inc. v. FTC does not affect our conclu- sion. 598 U.S. 175 (2023). Strong’s reply briefly invokes Axon for the proposition that “a court ‘can do nothing’ to retroactively cure USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 40 of 43

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harms flowing from a separation-of-powers violation.” In other words, Strong complains that she enjoys no retroactive remedy for having to undergo a Bivens adjudication for an implied cause of ac- tion that Congress, not the courts, should recognize, so she is enti- tled to an immediate appeal. But this overreads Axon, which in any event is not on point here. Axon addressed whether respondents in administrative ac- tions had to raise constitutional challenges to the prosecuting agen- cies’ structures in agency proceedings (later reviewable in a court of appeals, according to the applicable statutory review schemes) or whether they could bring collateral and immediate challenges in district court to enjoin the enforcement action. Id. at 180–83. The Court held that district courts had jurisdiction over such challenges. Id. at 196. It analyzed the issue under the Thunder Basin test for determining whether a statutory-review scheme precludes district-court jurisdiction over challenges to agency action. Id. at 185; see Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994). The Thunder Basin test asks in part whether “precluding district court jurisdiction [would] ‘foreclose all meaningful judicial review’” of the claims, somewhat echoing Cohen’s “effectively unreviewable” prong. Axon, 598 U.S. at 186 (quoting Thunder Basin, 510 U.S. at 212–13). The Court analogized respondents’ claimed harm—“sub- jection to an illegitimate proceeding, led by an illegitimate deci- sionmaker”—to the harms that “immunity doctrines” are designed to prevent: in both cases, the harm flows from being required to participate in the adjudicatory proceeding itself, not its result. Id. USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 41 of 43

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at 191–92. The Court concluded that this injury justified allowing the respondents to sue in the district court rather than waiting for their claims to be heard on appeal from the agency proceeding. Id. at 196. Strong seems to read Axon as providing a rule for all “sepa- ration-of-powers violation[s].” But the violation in Axon and its re- sultant harm were severe: subjection to a wholly illegitimate, “un- constitutionally structured decisionmaking process.” Id. at 192. The respondents argued that the entities conducting the proceed- ings (administrative law judges and the agencies) had no legitimate governmental authority. Id. at 193. It is true that both this case and Axon deal with asserted sep- aration-of-powers violations. But the alleged violations are very different. Strong hardly claims that the district court is an “illegiti- mate decisionmaker” or that the proceeding is entirely “illegiti- mate.” (After all, it is undisputed that the district court is the ap- propriate forum to determine in the first instance whether a con- stitutional remedy exists. Strong just disagrees with the district court’s decision.) Strong’s asserted injury here is having to spend more time before a judge than she wishes; the alleged injury in Axon was like being tried by a sports referee who has decided of his own accord to put on judicial robes. Axon is also irrelevant here because it dealt with a different question: when respondents to administrative enforcement actions can bring a collateral challenge in district court. The standards for interlocutory appeal are different, and the Axon Court even said USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 42 of 43

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that “[n]othing we say today portends newfound enthusiasm for interlocutory review.” Id. at 192. iii. Collateral-order doctrine expansions outside the rulemaking process create their own separa- tion-of-powers issues.

We conclude by echoing our sister circuits’ observation— drawn from the Supreme Court’s own words—that if the collat- eral-order doctrine is to be extended, rulemaking is the right way to do it. See, e.g., Mohamed, 100 F.4th at 1227. Despite the Supreme Court’s insistence that its limitations on Bivens claims protect Con- gressional prerogatives, Congress has not taken “affirmative ac- tion” to undo the Court’s early Bivens cases. Bivens, 403 U.S. at 395. What Congress has done, twice, is facilitate the Court’s ability to use a rulemaking process to allow new categories of interlocutory appeals. See 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)); Federal Courts Administration Act of 1992, Pub. L. No. 102-572, § 101, 106 Stat. 4506, 4506 (codified at 28 U.S.C. § 1292(e)). The Court has recognized the benefits of this process and has gone so far as to call rulemaking “[t]he procedure Congress ordered” for determining which decisions merit interlocutory ap- peal. Swint, 514 U.S. at 48. So while Bivens-extension orders purportedly offend the sep- aration of powers, collateral-order doctrine expansions outside the rulemaking process create separation-of-powers problems of their own. Congress has instructed us to use rulemaking rather than USCA11 Case: 23-10252 Document: 56-1 Date Filed: 02/03/2025 Page: 43 of 43

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adjudication to identify new categories of immediately appealable orders. It would be strange to listen to the “congressional silence” about Bivens remedies, cf. Ziglar, 582 U.S. at 131, and somehow hear a congressional command to end-run two enacted statutes. We de- cline to take that approach here. VI. Conclusion

The Bivens order here can be effectively reviewed after final judgment. The order does not address (and does not foreclose) qualified immunity, so it does not endanger the types of excep- tional interests that need immediate review. If Bivens defendants seek immediate review outside the normal qualified-immunity path, § 1292(b) offers a way to get it; if the judiciary determines immediate review should be extended to Bivens-extension orders as a class, it can promulgate a rule doing so. As for us, we conclude that the collateral-order doctrine does not cover Bivens-extension orders that do not address qualified immunity. We dismiss the appeal for lack of appellate jurisdiction. DISMISSED.