by Sam Rutherford

The United States Courts of Appeals for the Ninth and Tenth Circuits recently held that the government may not immediately appeal a district court’s order extending to new factual scenarios that the exemption to governmental immunity first identified in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In both cases, the government sought to lodge its challenge under the collateral order doctrine, but the appellate courts said that could apply only if the district court’s order also denied the government qualified immunity (QI).

In the Ninth Circuit case, federal prisoner Mitchell Garraway was confined at the U.S. Penitentiary in Atwater, California, when his cellmate cut his nose with a razor. Garraway informed three unnamed Bureau of Prisons (BOP) officials that he needed to be moved to another cell. These officials allegedly knew the cellmate had a history of attacking other prisoners but refused Garraway’s request. Several weeks later, Garraway’s cellmate struck him on the left side of his jaw. That resulted in swelling and prolonged pain.

Garraway then sued the three prison officials in federal court, alleging that by failing to protect him from a foreseeable assault they demonstrated deliberate indifference to his safety, in violation of the Eighth Amendment. He further contended that Bivens provided him a cause of action and an exception to the government’s immunity from suit. The BOP defendants filed a motion to dismiss, arguing that Bivens did not extend to Garraway’s claims. The district court denied their motion, and they appealed.

In the Tenth Circuit case, federal prisoner Khalfan Khamis Mohamed was confined at the U.S. Administrative Maximum Penitentiary in Florence, Colorado, when he went on a hunger strike, and BOP guards David Brush, Joseph Miller and Cody Espinoza allegedly removed Mohamed from his cell and beat him. Guard Lts. Joseph Armijo and Dennis Murton and Physician’s Assistant (PA) Anthony Osagie allegedly watched but did not intervene as Mohamed cried out for help. Murton further instructed the others “on how to beat [Mohamed],” the prisoner claimed.

Mohamed also sued in federal court, accusing the BOP officials of violating the Eighth Amendment with excessive force and failure to intervene. He contended that Bivens provided him a cause of action. BOP defendants again moved to dismiss, arguing that Bivens does not extend to his claims. Again, the district court denied their motion and they appealed.

Under Bivens, the Supreme Court of the U.S. (SCOTUS) found an implied cause of action for damages stemming from constitutional violations committed by federal officials—as opposed to a statutorily authorized cause of action against state officials for violating a citizen’s constitutional rights, like 42 U.S.C. § 1983. However, SCOTUS has recognized Bivens claims only in limited factual scenarios: (1) excessive force in conducting a warrantless search and arrest in violation of the Fourth Amendment, the circumstances of the original Bivens case; (2) a due process claim against a member of Congress for gender discrimination against a staffer, as held in Davis v. Passman, 442 U.S. 228 (1979)); and (3) an Eighth Amendment inadequate medical care claim against BOP officials, as held in Carlson v. Green, 446 U.S. 14 (1980).

More recently, SCOTUS has emphasized that expanding Bivens beyond these three scenarios is “now a disfavored judicial activity” in Ziglar v. Abbasi, 582 U.S. 120 (2017). As the high court subsequently explained in Egbert v. Boule, 596 U.S. 482 (2022), “[r]ecognizing any new Bivens action entails substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” (internal quotation marks and citations omitted).

In Garraway and Mohamed’s cases, the issue was whether BOP defendants could pursue interlocutory appeals under the collateral order doctrine of the district court orders extending the prisoners’ Bivens claims to new factual scenarios—extensions completely untethered from a QI ruling. Joining the Third and Sixth Circuits, the Ninth and Tenth Circuits held that they lacked jurisdiction over the BOP officials’ appeals.

By statute, U.S. Courts of Appeals “have jurisdiction of appeals from all final decisions of the district courts of the United States,” according to 28 U.S.C. § 1291. This has been interpreted to encompass “not only judgments that terminate an action, but also a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed final,” as held in Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009). Yet this so-called collateral order doctrine is a “narrow exception,” SCOTUS warned in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), and one to be “strictly applied,” as further warned in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985). The type of non-final orders that fit within this doctrine are usually those denying government officials some form of immunity from suit, such as the denial of QI or Eleventh Amendment immunity. See Will v. Hallock, 546 U.S. 345 (2006).

In the instant cases, Defendant BOP officials likened Bivens extension orders to orders denying government officials constitutional immunity from suit. They argued that officials are subject in both cases to the expense and burden of litigation. The Ninth and Tenth Circuits rejected this contention, however. The BOP officials may immediately appeal extension orders coupled with denial of QI. Or they may seek interlocutory review pursuant to 28 U.S.C. § 1292(b), which provides for review of a district court order “not otherwise appealable,” provided 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.” But neither criteria was applicable here, the appellate courts said, so they lacked jurisdiction to consider the appeals.

Accordingly, both BOP appeals were dismissed for want of jurisdiction, at the Ninth Circuit on September 3, 2024, and at the Tenth Circuit on May 7, 2024. See: Garraway v. Ciufo, 113 F.4th 1210 (9th Cir. 2024); and Mohamed v. Jones, 100 F.4th 1214 (10th Cir. 2024).

Both of these were 2-1 decisions made over sharp dissents. The Eleventh Circuit is also currently considering the issue as a matter of first impression in Fleming v. FCI Tallahassee Warden, USCA (11th Cir.), Case No. 23-10252 (argued Aug. 15, 2024).

So this issue should not be considered settled and will likely require SCOTUS review, particularly if the Eleventh Circuit reaches a contrary decision. Given the high court’s current distaste for Bivens extension, it may well find that these orders are similar to rulings denying QI and make them immediately appealable under the collateral order doctrine.  

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