Mitchell Garraway v. Jacquiline Ciufo

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MITCHELL GARRAWAY, No. 23-15482

Plaintiff-Appellee, D.C. No.

1:17-cv-00533-

v. ADA-GSA

JACQUILINE CIUFO; K. MILLER;

J. ZARAGOZA, OPINION

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of California

Ana de Alba, District Judge, Presiding

Argued and Submitted May 8, 2024

Pasadena, California

Filed September 3, 2024

Before: Richard C. Tallman, Danielle J. Forrest, and

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Tallman;

Dissent by Judge Bumatay

2 GARRAWAY V. CUIFO

SUMMARY *

Bivens / Collateral Order Doctrine

In an action brought by a federal inmate against prison

officials pursuant to Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the panel

dismissed defendants’ interlocutory appeal and, joining

three other circuits, held that district court orders extending

Bivens, absent a denial of qualified immunity, are not

immediately appealable under the collateral order doctrine.

Plaintiff alleged that prison officials were deliberately

indifferent to his safety in violation of his Eighth

Amendment rights. The district court denied defendants’

motion for judgment on the pleadings, in which defendants

argued that that no Bivens remedy is available for failure to

protect an inmate from a risk of prisoner violence. After the

Supreme Court issued Egbert v. Boule, 596 U.S. 482 (2022),

defendants filed a motion to reconsider, which the district

court denied. Defendants filed an interlocutory appeal.

The panel noted that the collateral order doctrine is a

narrow exception to be strictly applied. Appellate courts

may consider an underlying Bivens remedy when reviewing

an interlocutory order denying qualified immunity—and

may even consider it as a matter antecedent to qualified

immunity. However, it does not necessarily follow that

appellate courts can review on an interlocutory basis an

order recognizing a Bivens remedy standing alone.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GARRAWAY V. CUIFO 3

The panel concluded that an order recognizing a Bivens

remedy is not one of the small classes of collateral rulings

that is “effectively unreviewable” upon final

judgment. Delaying review does not threaten significant

public interests. Any alleged improper judicial intrusion

into the legislative function resulting from recognizing a

Bivens cause of action can be effectively rectified upon

review of a final judgment. And delaying review does not

so imperil the efficiency and effectiveness of the Executive

Branch as to warrant immediate review when the next

logical step in this litigation is for the federal-officer

defendant to claim qualified immunity, the denial of which

on a question of law would be immediately appealable.

Dissenting, Judge Bumatay wrote that under the

collateral order doctrine federal appellate courts may

consider interlocutory appeals whenever denying immediate

review would imperil a substantial public interest. Because

preserving the separation of powers is a value of the highest

order and authorizing an improper Bivens suit erodes that

value, the court had jurisdiction to immediately review the

district court’s Bivens ruling.

COUNSEL

D. Dangaran (argued) and Samuel Weiss, Rights Behind

Bars, Washington, D.C.; Mitchell Garraway, Pro Se, United

States Penitentiary, Coleman, Florida; for Plaintiff-

Appellee.

Weili J. Shaw (argued) and Barbara L. Herwig, Appellate

Staff Attorney, Civil Division; Brian M. Boynton, Principal

Deputy Assistant Attorney General; United States

Department of Justice, Washington, D.C.; Victoria L.

4 GARRAWAY V. CUIFO

Boesch, Assistant United States Attorney, Office of the

United States Attorney, Sacramento, California; for

Defendants-Appellants.

OPINION

TALLMAN, Circuit Judge:

Plaintiff-Appellee Mitchell Garraway brought this

Bivens action against three prison officials alleging they

were deliberately indifferent to his safety in violation of his

Eighth Amendment rights while he was incarcerated at U.S.

Penitentiary, Atwater, California. Defendants-Appellants

prison officials filed this interlocutory appeal after the

district court denied their motion for reconsideration of an

earlier motion for judgment on the pleadings in which they

argued no Bivens remedy exists for failure to protect an

inmate from a risk of prisoner violence. For the reasons set

forth herein, we dismiss for lack of jurisdiction. 1

I

Mitchell Garraway is a federal inmate currently

incarcerated in Coleman, Florida. In March 2016, while

Garraway was housed in Atwater, he allegedly informed

1

Unlike the dissent, we do not reach the merits of the district court’s

order recognizing a Bivens remedy for Eighth Amendment deliberate

indifference to inmate safety under Farmer v. Brennan, 511 U.S. 825

(1994). We may not assume jurisdiction for the purpose of deciding the

merits of the case. See Ex parte McCardle, 74 U.S. 506, 514 (1868)

(“Without jurisdiction the court cannot proceed at all in any cause.

Jurisdiction is power to declare the law, and when it ceases to exist, the

only function remaining to the court is that of announcing the fact and

dismissing the cause.”).

GARRAWAY V. CUIFO 5

three prison officials that his cellmate cut his nose with a

razor and asked to be moved to another cell. Garraway says

that although officials were aware his cellmate had a history

of assaulting other inmates, all three officials refused his

request. Approximately two weeks later, Garraway’s

cellmate allegedly struck him on the left side of his jaw,

causing it to swell and inflicting lasting pain. Garraway filed

this Bivens action against the three officials, arguing that

their refusal to change his cell given his documented safety

concerns and the cellmate’s violent history constituted

deliberate indifference to his safety in violation of the Eighth

Amendment.

Defendants-Appellants moved for judgment on the

pleadings arguing that no Bivens remedy is available for

failure to protect an inmate from a risk of prisoner violence.

On February 21, 2020, the district court denied the motion

on the basis that it agreed with Garraway’s argument that his

case “does not differ in a meaningful way from Farmer, nor

do [his] claims arise in a new [Bivens] context.” The case

proceeded for two and a half years. During this time, though

Defendants-Appellants’ Answer listed the defense of

qualified immunity, they have not yet formally invoked

qualified immunity in a dispositive motion.

The Supreme Court issued its decision in Egbert v. Boule

on June 8, 2022. 596 U.S. 482 (2022) (holding that Bivens

does not extend to create causes of action for Fourth

Amendment excessive-force claims and First Amendment

retaliation claims). On August 24, 2022, this case was

reassigned from District Judge Dale A. Drozd to then-

District Judge Ana de Alba. 2 On December 8, 2022,

2

Judge de Alba was elevated to the United States Court of Appeals for

the Ninth Circuit on November 15, 2023.

6 GARRAWAY V. CUIFO

Defendants-Appellants filed a motion to reconsider the

denial of their previous motion for judgment on the

pleadings in light of Egbert. Judge de Alba denied

Defendants-Appellants’ motion for reconsideration on

February 1, 2023, reiterating that Farmer controlled,

determining that Farmer remained intact after Egbert, and

reasoning that Egbert “does not mention Farmer.”

On March 31, 2023, Defendants-Appellants timely filed

a notice of interlocutory appeal of the order denying their

motion for reconsideration. In his papers and at oral

argument, Garraway argued that we lacked jurisdiction over

this appeal on two alternative grounds. First, he insists that

we lack jurisdiction over the interlocutory appeal of a district

court order recognizing a Bivens cause of action, untethered

from a denial of qualified immunity. Second, he argues that

under Hanson v. Shubert, 968 F.3d 1014 (9th Cir. 2020), the

denial of a motion for reconsideration is not an appealable

final order standing alone. Today we join three sister circuits

in holding that district court orders extending Bivens, absent

a denial of qualified immunity, are not immediately

appealable under the collateral order doctrine. 3

II

In all matters, the threshold question is one of

jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 95 (1995) (“Every federal appellate court has

a special obligation to satisfy itself . . . of its own

jurisdiction.” (cleaned up)); In re Martinez, 721 F.2d 262,

264 (9th Cir. 1983) (holding that federal courts have both the

3

Accordingly, we decline to answer whether we have jurisdiction over

the denial of a motion to reconsider an order denying judgment on the

pleadings and recognizing a Bivens remedy where we lack jurisdiction

over the underlying order. See Hanson, 968 F.3d at 1018.

GARRAWAY V. CUIFO 7

inherent authority and the responsibility to consider their

own jurisdiction).

Garraway argues that we lack jurisdiction over an

interlocutory appeal of a district court ruling recognizing a

constitutional damages remedy under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), absent an ancillary denial of qualified immunity.4

Though a matter of first impression for our Court, three of

our sister circuits have declined to give collateral order

treatment to this class of orders. See Himmelreich v. Fed.

Bureau of Prisons, 5 F.4th 653, 662–63 (6th Cir. 2021);

Graber v. Doe, 59 F.4th 603, 608 (3d Cir. 2023), cert. denied

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

Mohamed v. Jones, 100 F.4th 1214, 1215 (10th Cir. 2024). 5

By statute, U.S. Courts of Appeals “have jurisdiction of

appeals from all final decisions of the district courts of the

United States.” 28 U.S.C. § 1291 (emphasis added).

Though a final decision is generally one “by which a district

court disassociates itself from a case,” Swint v. Chambers

Cnty. Comm’n, 514 U.S. 35, 42 (1995), the Supreme Court

“has long given” the statute a “practical rather than a

technical construction,” Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949). As such, § 1291 has been

4

As noted supra, at p. 5, Defendants-Appellants’ Answer lists the

affirmative defense of qualified immunity, however, immunity has not

yet been formally invoked in a dispositive motion or ruled upon.

Accordingly, the question of qualified immunity is neither properly

before us nor available to provide a jurisdictional hook to evaluate the

Bivens question.

5

The Eleventh Circuit is currently considering this same issue as a matter

of first impression. Fleming v. FCI Tallahassee Warden, No. 23-10252

(11th Cir. argued Aug. 15, 2024).

8 GARRAWAY V. CUIFO

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.’” Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 106 (2009) (quoting Cohen, 337

U.S. at 545–46). As the Court established in Cohen and

restated in Swint, “[t]hat small category includes only

decisions that are conclusive, that resolve important

questions separate from the merits, and that are effectively

unreviewable on appeal from the final judgment in the

underlying action.” Swint, 514 U.S. at 42 (citing Cohen, 337

U.S. at 546).

On multiple occasions, the Supreme Court has

admonished that the collateral order doctrine is a “narrow

exception,” Firestone Tire & Rubber Co. v. Risjord, 449

U.S. 368, 374 (1981), to be “strictly applied,” Richardson-

Merrell, Inc. v. Koller, 472 U.S. 424, 431 (1985). Out of

“healthy respect for the virtues of the final-judgment rule,”

and with an eye toward “efficient judicial administration,”

Mohawk, 558 U.S. at 106 (quoting Firestone, 449 U.S. at

374), the 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,” Digit.

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868

(1994) (citation omitted).

Thus, “[t]he justification for immediate appeal must . . .

be sufficiently strong to overcome the usual benefits of

deferring appeal until litigation concludes.” Mohawk, 558

U.S. at 107. Specifically, the third Cohen factor inquiry—

whether an order is “effectively unreviewable”—“cannot be

answered without a judgment about the value of the interests

that would be lost through rigorous application of a final

judgment requirement.” Digit. Equip., 511 U.S. at 878–79.

GARRAWAY V. CUIFO 9

Accordingly, “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 v. Hallock, 546 U.S. 345, 352–53 (2006)).

Defendants-Appellants argue that “[t]he courts of

appeals routinely consider the existence of Bivens remedies

on immediate appeal from interlocutory district court

decisions.” E.g., Wilkie v. Robbins, 551 U.S. 537, 549 n.4

(2007); Mejia v. Miller, 61 F.4th 663, 669 (9th Cir. 2023);

Pettibone v. Russell, 59 F.4th 449, 452–54 (9th Cir. 2023);

Ioane v. Hodges, 939 F.3d 945, 949, 951 (9th Cir. 2018);

Martin v. Naval Crim. Investigative Serv., 539 F. App’x 830,

831–33 (9th Cir. 2013). They assert that “[i]n many of these

appeals, defendants also challenge the district court’s denial

of qualified immunity.” In fact, in every one of the cases

Defendants-Appellants cite, defendants challenged the

district court’s denial of qualified immunity.

It is well-established that a district court’s denial of

qualified immunity is a collateral order subject to immediate

appeal “to the extent that it turns on an issue of law.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Further,

“Wilkie establishes that, in an interlocutory appeal from a

denial of qualified immunity, we necessarily have

jurisdiction to decide whether an underlying Bivens cause of

action exists.” Pettibone, 59 F.4th at 453. 6 In some

6

In Wilkie, the Court did not explicitly identify a theory on which

jurisdiction was based. Pettibone, 59 F.4th at 453 (“In explaining why

there was appellate jurisdiction to decide whether a Bivens cause of

action existed, the [Wilkie] Court did not apply the pendent appellate

jurisdiction test . . . [i]nstead, the Court said, without elaboration, that

10 GARRAWAY V. CUIFO

instances, upon review of denials of qualified immunity,

courts have made the analytical choice to consider the Bivens

remedy prior to considering qualified immunity. Compare,

e.g., Wilkie, 551 U.S. at 549–62 (concluding no Bivens

remedy existed and thus declining to reach qualified

immunity), with Wood v. Moss, 572 U.S. 744, 757 (2014)

(assuming without deciding that Bivens extends to First

Amendment claims to reach the qualified immunity

question).

Appellate courts may consider the underlying Bivens

remedy when reviewing an interlocutory order denying

qualified immunity—and may even consider it as a matter

antecedent to qualified immunity. However, it does not

necessarily follow that appellate courts can review on an

interlocutory basis an order recognizing a Bivens remedy

standing alone. We cannot assume that which is necessary

for our review to be proper—a jurisdictional hook.

We must decide in the first instance whether the district

court’s denial of Defendants-Appellants’ motion for

reconsideration of that court’s earlier denial of Defendants-

Appellants’ motion for judgment on the pleadings

independently satisfies Cohen’s three requirements. See

Swint, 514 U.S. at 40. Because the order fails to satisfy the

third Cohen requirement—that the order be “effectively

unreviewable on appeal from a final judgment”—we need

not decide whether the other two prongs are met. See Lauro

Lines S.R.L. v. Chasser, 490 U.S. 495, 498 (1989)

(quoting Richardson-Merrell Inc. v. Koller, 472 U.S. 424,

431 (1985)) (explaining that “we need not decide” whether

the recognition of the underlying Bivens cause of action was ‘directly

implicated by the defense of qualified immunity and properly before us

on interlocutory appeal.’” (internal citations omitted)).

GARRAWAY V. CUIFO 11

the order meets the other prongs when it “fail[s] to satisfy

the third requirement of the collateral order test”).

A

Defendants-Appellants argue that “such orders are

effectively unreviewable after trial because delaying review

threatens significant public interests that lie at the heart of

the Supreme Court’s Bivens doctrine—protecting the

separation of powers, and protecting the efficiency and

effectiveness of the Executive Branch.” These interests are

certainly implicated when any Bivens-style claim is brought

and adjudicated. First, consideration of separation-of-

powers principles are “central” to the analysis required of

courts considering whether to fashion a Bivens remedy.

Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (“When a party

seeks to assert an implied cause of action under the

Constitution itself . . . separation-of-powers principles are or

should be central to the analysis. The question is ‘who

should decide’ whether to provide for a damages remedy,

Congress or the courts? The answer most often will be

Congress.” (citation omitted)). Second, the recognition of a

Bivens cause of action acts as an inherent limitation on the

Executive Branch. See Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 70 (2001) (“The purpose of Bivens is to deter

individual federal officers from committing constitutional

violations.”).

But the question is not simply whether these interests are

implicated by the Bivens inquiry or whether those interests

are sufficiently weighty, but rather, whether delaying review

of a district court order recognizing a Bivens remedy “so

imperils th[ose] interest[s]” as to justify immediate appeal of

that entire class of orders. Mohawk, 558 U.S. at 108 (“The

crucial question, however, is not whether an interest is

12 GARRAWAY V. CUIFO

important 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.”). Stated differently, it is both necessary “that the

right asserted be one that is essentially destroyed if its

vindication must be postponed until trial is completed,”

Chasser, 490 U.S. at 499, and that the right be “sufficiently

important to overcome the policies militating against

interlocutory appeals,” id. at 503 (Scalia, J., concurring).

Neither condition, standing alone, is sufficient. See id. at

502–03 (recognizing that while the right to be sued only in a

particular forum is “positively destroyed” by allowing trial

to proceed in another jurisdiction, reversal after trial is

“vindication enough because the right is not sufficiently

important”); Mohawk, 558 U.S. at 108–09

(“acknowledg[ing] the importance of the attorney-client

privilege,” but concluding “postjudgment appeals generally

suffice to protect the rights of litigants and ensure the vitality

of the attorney-client privilege”). While we recognize the

relative importance of the interests implicated, we do not see

what irreparable harm would occur, or what interest, right,

or entitlement “would be lost through rigorous application of

a final judgment requirement” such that this class of orders

should be considered “effectively unreviewable.” Digit.

Equip., 511 U.S. at 878–79 (emphasis added).

1

Regarding Defendants-Appellants’ concern for

protecting separation-of-powers principles, improper

judicial intrusion into the legislative function can be

effectively rectified upon review of a final judgment,

without immediate and irreparable harm being done to our

system of governance as a result of the delay. In coming to

this conclusion, we mean not to undermine the Supreme

GARRAWAY V. CUIFO 13

Court’s admonitions of the dangers of judicially created

implied causes of action under the Constitution, but rather,

we simply disagree with the argument that these admonitions

amount to an immediate, concrete harm justifying

interlocutory appeal. 7

Bivens and the doctrine it has spawned is not new—the

Courts of Appeals and the Supreme Court have routinely, for

many decades now, declined to extend Bivens to new

contexts. See, e.g., Schweiker v. Chilicky, 487 U.S. 412, 414

(1988); Minneci v. Pollard, 565 U.S. 118, 120 (2012);

Hernandez v. Mesa, 589 U.S. 93, 113–14 (2020); Adams v.

Johnson, 355 F.3d 1179, 1181 (9th Cir. 2004); Pettibone, 59

F.4th at 457. In all these cases, the appellate process had

adequate opportunity to review the Bivens determination

without any irreparable harm being done to the separation of

powers. Defendants-Appellants—and indeed, the dissent—

7

To further illustrate this point, the case(s) in which the Supreme Court

has identified “honoring the separation of powers” as a “particular value

of a high order” sufficient to warrant immediate review are inapposite.

The class of orders in question in those cases—the denial of absolute

Presidential immunity from suit—posed an immediate and tangible

threat to the separation of powers. See Will, 546 U.S. at 352 (“Thus, in

Nixon . . . we stressed the ‘compelling public ends,’ ‘rooted in . . . the

separation of powers,’ that would be compromised by failing to allow

immediate appeal of a denial of absolute Presidential immunity.”

(citations omitted)); Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982) (“In

light of the special solicitude due to claims alleging a threatened breach

of essential Presidential prerogatives under the separation of powers, we

conclude that petitioner did present a ‘serious and unsettled’ and

therefore appealable question to the Court of Appeals.” (citation

omitted)). Denial of absolute Presidential immunity is the destruction of

a right not to be sued, irreparable upon final judgment. The recognition

of a Bivens remedy at the pleadings stage does not even resemble the

denial of a claim as of right that is essentially destroyed if its vindication

is postponed until final judgment. See infra § 3.

14 GARRAWAY V. CUIFO

fail to identify what immediate harm would be inflicted upon

the separation of powers that cannot be effectively reviewed

and remedied upon final judgment. Defendants-Appellants

rely entirely on the conclusory assertion that “[a]n erroneous

district court decision recognizing a Bivens remedy causes

‘immediate’ harm to separation-of-powers interests that are

‘essential.’” (Citing to Graber v. Doe II, 59 F.4th 603, 616

(3d Cir. 2023) (Hardiman, J., dissenting)). The dissent

similarly relies upon dissents from other judges in other

circuits proclaiming a “parade of horribles,” and ignoring

that we are joining the majority opinions of the three other

circuits who have addressed this issue before us. We choose

to follow Supreme Court precedent, join the prevailing

majority voices of our sister circuits, and decline to create

the circuit split urged upon us.

2

Defendants-Appellants’ next argument, that orders

recognizing a Bivens remedy threaten the efficiency and

effectiveness of the Executive Branch, presents a more

tangible harm, which, at first blush, has an immediacy to it.

See Egbert, 596 U.S. at 499 (“Recognizing any new Bivens

action ‘entail[s] 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.’” (alteration in original) (quoting Anderson v.

Creighton, 483 U.S. 635, 638 (1987))); Ziglar, 582 U.S. at

134 (cautioning against the expansion of implied causes of

actions under Bivens because “[c]laims against federal

officials often create substantial costs, in the form of defense

and indemnification . . . [and] the time and administrative

costs attendant upon intrusions resulting from the discovery

and trial process”). This argument has cogency, especially

given, as Defendants-Appellants themselves recognize,

GARRAWAY V. CUIFO 15

“[t]hese concerns mirror those that prompted the Supreme

Court to conclude that qualified-immunity rulings are

collateral final orders.”

But Defendants-Appellants’ attempt to justify extending

the collateral order doctrine to orders recognizing Bivens

remedies untethered from a denial of qualified immunity by

comparing that class of orders to qualified immunity proves

too much. Delaying review of an order recognizing a Bivens

remedy does not so imperil the efficiency and effectiveness

of the Executive Branch as to warrant immediate review

when the next logical step in this litigation—and indeed, in

nearly any Bivens action—is for the federal-officer

defendant to claim qualified immunity, the denial of which

on a question of law would be immediately appealable. See

Mitchell, 472 U.S. at 525, 528–30 (“A major characteristic

of the denial or granting of a claim appealable under Cohen’s

‘collateral order’ doctrine is that ‘unless it can be reviewed

before [the proceedings terminate], it can never be reviewed

at all.’” (alteration in original) (quoting Stack v. Boyle, 342

U.S. 1, 12 (1952))).

As the Court recognized in Mohawk, “[a]s long as the

class of claims, taken as a whole, can be adequately

vindicated by other means, the chance that the litigation at

hand might be speeded, or a particular injustice averted, does

not provide a basis for jurisdiction under § 1291.” 558 U.S.

at 107 (cleaned up) (holding that disclosure orders adverse

to the attorney-client privilege did not qualify for immediate

appeal under the collateral order doctrine in part because

“[p]ostjudgment appeals, together with other review

mechanisms, suffice to protect the rights of litigants and

preserve the vitality of the attorney-client privilege”).

16 GARRAWAY V. CUIFO

Protecting the efficiency and effectiveness of the

Executive Branch is the foundation on which qualified

immunity is grounded. As the Supreme Court stated 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 . . . [which

is] not limited to liability for money damages;

they also include the general costs of

subjecting officials to the risks of trial—

distraction of officials from their

governmental duties, inhibition of

discretionary action, and deterrence of able

people from public service . . . even such

pretrial matters as discovery are to be avoided

if possible, as [i]nquiries of this kind can be

peculiarly disruptive of effective

government.

472 U.S. at 525–26 (second alteration in original) (internal

citations and quotation marks omitted).

Qualified immunity presents an alternative means by

which the efficiency and effectiveness of the Executive

Branch is protected. And because the denial of qualified

immunity on issues of law is immediately appealable,

whereby the underlying Bivens remedy itself is reviewable,

any residual argument that qualified immunity fails to

protect the effectiveness and efficiency of the Executive

GARRAWAY V. CUIFO 17

Branch from the threats of adverse rulings recognizing

Bivens remedies loses much of its force. As such, we

conclude that qualified immunity presents an alternative, if

imperfect, means by which the potential harms posited can

be vindicated.

3

Upon closer inspection, fitting the assertion that the

“recognition of a Bivens remedy poses an immediate and

irreparable threat to the efficiency and effectiveness of the

Executive Branch” into the Cohen framework leads to

absurd results and contravenes Supreme Court precedent.

Insisting that an adverse Bivens ruling be subject to

immediate appeal on the basis that government officials

might be spared the burdens of litigation sooner essentially

amounts to an assertion that government officials have a

right to avoid litigation altogether—separate and apart from

this right embodied by qualified immunity—that is

essentially destroyed by an adverse Bivens ruling. However,

that a ruling “may burden litigants in ways that are only

imperfectly reparable by appellate reversal of a final district

court judgment . . . has never sufficed” to independently

justify collateral order treatment. Digit. Equip., 511 U.S. at

872. This is true even when the burdened litigant is a

government actor or official. See Will, 546 U.S. at 354. As

the Supreme Court announced in Will, if the government’s

interest in avoiding litigation alone sufficed as justification

for an interlocutory appeal, then “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.

Indeed, the logic of Will extends to the class of orders to

which we are asked to give Cohen treatment today. In Will,

the Supreme Court considered whether a district court order

18 GARRAWAY V. CUIFO

rejecting the Federal Tort Claims Act judgment bar as a

defense to a Bivens claim was appealable on an interlocutory

basis under the collateral order doctrine. Id. at 353–54. In

holding it was not, the Court reasoned that in declining to

construe the “claim of the customs agents in this case . . . as

an immunity demanding the protection of a collateral order

appeal,” the government did not have an absolute right to

avoid trial. Id. Otherwise,

if 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 motion 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.

Id.

The dissent suggests that we read this language in Will

to mean that because “an adverse Bivens action does not

implicate the right not to stand trial . . . there’s no need for

immediate appeal.” But we understand the Supreme Court

to be making a more nuanced point. Where there is no right

permanently destroyed, or harm irreparably done, simply

abbreviating litigation burdensome to government officials

does not suffice as justification for Cohen treatment.

Bivens liability exists, albeit in a severely cabined form,

not for the purpose of protecting the separation of powers or

the efficiency and effectiveness of the Executive Branch, but

in spite of those considerations—a tension the Supreme

Court has repeatedly recognized. For example, in Egbert,

GARRAWAY V. CUIFO 19

the Court encapsulated the purpose of Bivens as “concerned

solely with deterring the unconstitutional acts of individual

officers—i.e., the focus is whether the Government has put

in place safeguards to prevent constitutional violations from

recurring.” 596 U.S. at 498 (cleaned up) (discussing

alternative remedy processes). Importantly, Egbert also

made plain that, given the stressors on the separation of

powers, “recognizing a cause of action under Bivens is ‘a

disfavored judicial activity.’” Id. at 491 (quoting Ziglar, 582

U.S. at 135).

An adverse Bivens decision does not represent the denial

of a government official’s right not to stand trial, as in the

case of qualified immunity, or any denial of an affirmative

right. Federal officials are harmed by an adverse Bivens

ruling only insofar as they are required to litigate qualified

immunity in a dispositive motion, the denial of which is

immediately appealable. To elevate an adverse Bivens

ruling to the class of orders immediately appealable would

be to equate it with the denial of a federal officer’s right not

to stand trial, in contravention of the spirit of Will. See Will,

546 U.S. at 353–54. As the Sixth Circuit trenchantly

observed:

Unlike qualified immunity, Bivens provides a

plaintiff’s remedy for unconstitutional

conduct. It does not grant defendants an

entitlement not to stand trial. 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. We agree.

20 GARRAWAY V. CUIFO

Because an order recognizing a Bivens remedy is not

“effectively unreviewable” upon final judgment, we decline

the invitation to extend the collateral order doctrine to allow

for the immediate appeal of that class of claims.

B

Those who would oppose our holding today voice

concern about implied causes of action as undermining the

separation of powers, while in the same breath suggesting

we expand the collateral order doctrine, a judicially created

exception to 28 U.S.C. § 1291. Expansion of the class of

collaterally appealable orders “has acquired special force in

recent years with the enactment of legislation designating

rulemaking, ‘not expansion by court decision,’ as the

preferred means for determining whether and when

prejudgment orders should be immediately appealable.”

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

Congress has statutorily authorized the Supreme Court to

adopt rules “defin[ing] when a ruling of a district court is

final for the purposes of appeal under section 1291,” 28

U.S.C. § 2072(c), and empowered the Supreme Court to

“prescribe rules, in accordance with [§ 2072], to provide for

an appeal of an interlocutory decision to the courts of appeals

that is not otherwise provided for under [§ 1292],”

§ 1292(e). The rule we announce today, if wrong, can be

properly revisited via the rulemaking process “with the

opportunity for full airing it provides.” Mohawk, 558 U.S.

at 114.

III

The dissent urges that “we ought to use our power

under the . . . collateral order doctrine” to reach the merits.

With the utmost respect for our dissenting colleague’s views,

our power to address the merits is synonymous with our

GARRAWAY V. CUIFO 21

jurisdiction, mandated by Congress and limited by the

Constitution. We are not looking, as the dissent suggests,

for any way out of applying the collateral order doctrine, but,

rather, we are faithfully applying Supreme Court precedent

disfavoring expanding the doctrine’s limited exception to

§ 1291’s final judgment rule. And we are unwilling to bend

that precedent to the breaking point.

DISMISSED for lack of jurisdiction.

BUMATAY, Circuit Judge, dissenting:

This case requires us to determine whether federal

government officers may immediately appeal a district

court’s recognition of a new Bivens claim—even though the

Supreme Court has all but put us out of the business of

creating new causes of action under that “zombi[fied]”

doctrine. See Mohamed v. Jones, 100 F.4th 1214, 1240 (10th

Cir. 2024) (Tymkovich, J., dissenting). The answer is “yes.”

In this case, a federal prisoner, Mitchell Garraway, sued

three federal prison officials under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), for the alleged violation of his Eighth Amendment

right. On behalf of the officials, the government quickly

moved for judgment on the pleadings, arguing that no Bivens

remedy was available for Garraway’s novel context. The

district court denied the motion. After the Supreme Court

decided Egbert v. Boule, 596 U.S. 482 (2022), the

government moved for reconsideration of the district court’s

order. Once again, the district court denied the motion and

allowed the Bivens claim to proceed. The government

immediately appealed.

22 GARRAWAY V. CUIFO

The Supreme Court has been clear—no more freelanced

Bivens claims. Simply, judicially created causes of action

offend the “separation of legislative and judicial power.”

Egbert, 586 U.S. at 491 (simplified). Outside of those

already recognized by the Court, federal courts may not seize

the legislative mantle to create a new Bivens remedy if

there’s a single reason to oppose it. And the Court left us

instructions: “[b]ecause recognizing a Bivens cause of action

is an extraordinary act that places great stress on the

separation of powers,” we have “a concomitant

responsibility to evaluate any grounds that counsel against

Bivens relief.” Id. at 497 n.3 (simplified) (emphasis added).

Given this special “responsibility,” we ought to use our

power under the well-established collateral order doctrine to

foreclose the undue expansion of Bivens liability. Under that

doctrine, federal appellate courts may consider interlocutory

appeals whenever denying immediate review would imperil

a “substantial public interest.” See Will v. Hallock, 546 U.S.

345, 349, 353 (2006).

Because preserving the separation of powers is a value

of the highest order and authorizing an improper Bivens suit

erodes that value, we have jurisdiction to immediately

review the district court’s Bivens ruling. And the posture of

this appeal—from a denial of a motion to reconsider—

doesn’t change our jurisdiction. See Hanson v. Shubert, 968

F.3d 1014, 1019 n.4 (9th Cir. 2020). Finally, on review of

the Bivens order, we should have easily reversed because the

district court inappropriately expanded the scope of Bivens.

Instead, the majority declines jurisdiction and permits a

wrong-headed Bivens action to continue. I thus respectfully

dissent.

GARRAWAY V. CUIFO 23

I.

Collateral Order Doctrine

The courts of appeals “have jurisdiction of appeals from

all final decisions of the district courts of the United States.”

28 U.S.C. § 1291. As the Supreme Court has stated, “[f]rom

the very foundation of our judicial system, the general rule

has been that the whole case and every matter in controversy

in it must be decided in a single appeal.” Microsoft Corp. v.

Baker, 582 U.S. 23, 36 (2017) (simplified); see also Bank of

Columbia v. Sweeny, 26 U.S. 567, 569 (1828) (“If this

motion could now prevail, it would be a plain evasion of the

provision of the Act of Congress, that final judgments only

should be brought before this Court for re-examination.”).

This principle, commonly referred to as the final-judgment

rule, “descend[ed] from the Judiciary Act of 1789, where the

First Congress established the principle that only final

judgments and decrees of the federal district courts may be

reviewed on appeal.” Cunningham v. Hamilton Cnty., Ohio,

527 U.S. 198, 203 (1999) (simplified).

But the Supreme Court has said that appellate courts also

have jurisdiction over “a small class of collateral rulings that,

although they do not end the litigation, are appropriately

deemed final.” Mohawk Indus., Inc. v. Carpenter, 558 U.S.

100, 106 (2009) (simplified). These immediate appeals are

known as interlocutory appeals under the “collateral order

doctrine.” Digit. Equip. Corp. v. Desktop Direct, Inc., 511

U.S. 863, 867 (1994). To satisfy the collateral order doctrine,

a ruling must “[1] conclusively determine the disputed

question, [2] resolve an important issue completely separate

from the merits of the action, and [3] be effectively

unreviewable on appeal from a final judgment.” Puerto Rico

24 GARRAWAY V. CUIFO

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 144 (1993) (simplified).

The first two prongs of this test are easily satisfied here.

First, the district court’s Bivens ruling was not “tentative,

informal[,] or incomplete.” Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949). After denying

reconsideration, the Bivens issue was “concluded,” “closed,”

and “final” for this litigation. Id. Second, the Bivens issue

resolves a crucial separation-of-powers issue apart from “the

correctness of [either party’s] version of the facts.” Mitchell

v. Forsyth, 472 U.S. 511, 528 (1985). So it’s separate from

the merits of Garraway’s claim.

The only question then is whether the Bivens ruling is

“effectively unreviewable” on appeal from the eventual final

judgment here. I turn to that next.

A.

Bivens Claims Are Effectively Unreviewable

To be sure, the canonical example of an order

“effectively unreviewable” on appeal is the denial of

qualified immunity. That’s because the purpose of immunity

is “an immunity from suit” which is “effectively lost if a case

is erroneously permitted to go to trial.” Id. at 512 (emphasis

removed).

But immunity doctrines are not the only types of issues

that are effectively unreviewable on appeal. See, e.g., Cohen,

337 U.S. at 541 (order denying applicability of state law to a

stockholder’s derivative suit), Stack v. Boyle, 342 U.S. 1

(1951) (order denying a motion to reduce bail); United States

v. Baker, 603 F.2d 759, 761–62 (9th Cir. 1979) (order

requiring the federal government to pay the defendant’s

attorney’s fees for deposition expenses); Gough v.

GARRAWAY V. CUIFO 25

Perkowski, 694 F.2d 1140 (9th Cir. 1982) (order

disqualifying a party’s counsel in a civil case); Wiggins v.

Alameda Cnty., 717 F.2d 466, 467–68 (9th Cir. 1983) (order

requiring state prison officials to pay expenses associated

with producing and guarding a state prisoner); Hunt v.

Imperial Merch. Servs., Inc., 560 F.3d 1137 (9th Cir. 2009)

(order imposing the costs of class notification on one party);

Copeland v. Ryan, 852 F.3d 900, 904 (9th Cir. 2017) (order

requiring a state prison official to reimburse petitioner for

deposition expenses); see also Graber v. Doe II, 59 F.4th

603, 612 (3rd Cir. 2023) (Hardiman, J., dissenting)

(collecting other cases). So “an immunity is neither

sufficient nor necessary for an order denying a claim to be

‘effectively unreviewable on appeal.’” Graber, 59 F.4th at

612 (Hardiman, J., dissenting).

Indeed, the Supreme Court has suggested that when it

comes to whether an order is “effectively unreviewable on

appeal,” the touchstone is not immunity, but whether

appellate delay threatens “a substantial public interest.” Will,

546 U.S. at 353. Thus, rather than merely look to whether

immunity is invoked, we must consider “the value of the

interests that would be lost through rigorous application of a

final judgment requirement,” Digit. Equip., 511 U.S. at 878–

79, or “whether delaying review . . . would imperil a

substantial public interest or some particular value of a high

order.” Mohawk Indus., 558 U.S. at 107 (simplified). So

interlocutory appeal may be appropriate even when the

“right to be free of all proceedings whatsoever” is not

implicated. Will, 546 U.S. at 352.

After all, the driving force of the “effectively

unreviewable” prong is not immunity in itself but rather the

interest “root[ed]” in the protection of the “separation of

powers.” Id. (quoting Nixon v. Fitzgerald, 457 U.S. 731, 749

26 GARRAWAY V. CUIFO

(1982)). In addressing the need for the collateral order

doctrine, the Supreme Court “spoke of the threatened

disruption of governmental functions, and fear of inhibiting

able people from exercising discretion in public service if a

full trial were threatened.” Id. And first among the “value[s]

of a high order” supporting interlocutory appeal was

“honoring the separation of powers” and “preserving the

efficiency of government and the initiative of its officials.”

Id. Although explained in the context of qualified immunity,

these considerations overlap perfectly with the concerns for

expansive Bivens liability.

1.

Separation of Powers and Executive Branch Concerns

Like qualified immunity, creating new Bivens causes of

action imperils the separation of powers and hamstrings

executive branch officials from performing their

constitutional duties. So while not a formal immunity

doctrine, see, e.g., Graber, 59 F.4th at 603, the caution in

extending Bivens is rooted in the same concerns and should

be entitled to the same immediate review.

First, being subject to a proceeding in violation of the

“separation of powers” presents a “here-and-now injury.”

Axon Enter., Inc. v. FTC, 598 U.S. 175, 191 (2023)

(simplified); see also Seila Law LLC v. CFPB, 591 U.S. 197,

212 (2020) (When “a provision violates the separation of

powers it inflicts a ‘here-and-now’ injury on affected third

parties that can be remedied by a court.”). Such an injury “is

impossible to remedy once the proceeding is over” and so

the Court has warned against providing review “too late to

be meaningful.” Axon Enter., 598 U.S. at 191. By their

nature, Bivens claims usurp the judicial process to hale

executive branch officials into court—all without the

GARRAWAY V. CUIFO 27

authority of the legislature. So improper Bivens expansion

creates a separation-of-powers problem that infects all three

branches of government.

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.” It irreparably harms the legislature

by “arrogating legislative power” and

upsetting “the careful balance of interests

struck by the lawmakers.” 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.” 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.

Mohamed, 100 F.4th at 1239–40 (Tymkovich, J., dissenting)

(simplified).

So there are real costs to both the parties and our

constitutional structure by delaying review here. Contrary to

the majority’s view, the denial of interlocutory appeal would

cause “here-and-now” injuries. As Judge Tymkovich

memorably warns, “the judicial process itself is the injury,

28 GARRAWAY V. CUIFO

these harms are a bell that cannot be unrung later in the

litigation.” Id. at 1240 (Tymkovich, J., dissenting).

Second, the impact of new Bivens liability on the

effective functioning of the executive branch warrants

immediate review. “Recognizing 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.”

Egbert, 596 U.S. at 499 (simplified). Facing new personal

liability, federal officials may stop fully carrying out their

constitutional duties for fear of being haled into court. We

risk the “distraction of officials from their governmental

duties,” the “inhibition of discretionary action,” and

“deterrence of able people from public service.” Harlow v.

Fitzgerald, 457 U.S. 800, 816 (1982).

In the federal prison context, as here, these concerns are

especially troubling—even life-threatening. If Bivens is

extended to give prisoners a remedy for failure to protect

them from attacks from other inmates—as Garraway

seeks—the implications for federal prison officials could be

devastating. Under Garraway’s theory, a plaintiff can turn

practically any prison altercation into grounds for a Bivens

suit and lengthy entanglement in federal courts. Prison

officials may then need to respond by diverting resources to

ensure that inmates are monitored closely enough. Or the

opposite may occur—encouraging prison officials to avoid

inmates to sidestep anything giving rise to liability. Knowing

that they have another cause of action in their back pocket,

inmates may make inappropriate demands hoping that the

mere threat of litigation may induce prison officials to

comply.

GARRAWAY V. CUIFO 29

This parade of horribles may be speculative. But that’s

the point. The judiciary is particularly ill-equipped to assess

these questions and reach proper policy determinations. We

simply have no competence to strike the balance between

“economic and governmental concerns, administrative costs,

and the impact on governmental operations systemwide”

needed to fashion new remedies. Egbert, 596 U.S. at 496

(simplified). That’s why the Constitution leaves decisions

like these to Congress.

But more importantly, the threat of any impact on the

executive branch from Bivens liability cries out for

immediate review. While Garraway’s Bivens claim may not

ultimately prevail in court, defendants and their fellow

prison officials may still alter their conduct realizing that any

Bivens suit may go to final judgment before any appellate

review. So denying this interlocutory appeal may chill these

defendants’ as well as other prison officials’ conduct. The

ripple effects may then damage the efficiency and

effectiveness of the executive branch.

This prong is thus satisfied, and we should have asserted

jurisdiction here.

2.

Response to Majority

First, the majority doesn’t dispute that Bivens creation

causes irreparable harm to the executive branch. Rather it

claims there’s no urgency to act now because “the next

logical step . . . in nearly any Bivens action” is for the

defendant to claim qualified immunity, which is

immediately appealable under our collateral order doctrine.

Maj. Op. 15 (emphasis added). Since this argument was not

briefed, I am not sure this is correct. And we have said, “[n]ot

30 GARRAWAY V. CUIFO

every interlocutory appeal from a denial of a motion for

summary judgment based on qualified immunity is

immediately appealable.” Pauluk v. Savage, 836 F.3d 1117,

1121 (9th Cir. 2016) (holding that “we do not have

jurisdiction over a district court’s determination that there

are genuine issues of material fact”). And, of course, there’s

a class of Bivens cases where raising a qualified immunity

defense would be frivolous. Qualified immunity is only

available when the constitutional law is not “clearly

established.” See Wilk v. Neven, 956 F.3d 1143, 1148 (9th

Cir. 2020). Take this case. The district court said that

Garraway’s claim mimics the facts and applicable law of

Farmer v. Brennan, 511 U.S. 825, 843 (1994), which set

“clearly established” law on the Eighth Amendment. See

Wilk, 956 F.3d at 1150. Perhaps the reason the government

hasn’t asserted qualified immunity in the years since the

district court rejected its motion for judgment on the

pleadings is that it would be frivolous.

But even assuming all Bivens claims will eventually be

reviewed as part of a qualified-immunity appeal after

summary judgment, such an appeal would be an insufficient

alternative means of vindicating the irreparable harm to the

executive branch. Having to wait to litigate qualified

immunity at summary judgment means that federal officers,

like defendants here, will have to submit themselves to the

costs and strains of discovery. Yet the Supreme Court has

barred recognition of Bivens remedies precisely to prevent

the burdens posed by discovery, not just trial itself. For

example, the Court reasoned that “[c]laims against federal

officials often create substantial costs, in the form of defense

and indemnification” and that “the time and administrative

costs attendant upon intrusions resulting from the discovery

and trial process are significant factors to be considered.”

GARRAWAY V. CUIFO 31

Ziglar v. Abbasi, 582 U.S. 120, 134 (2017). It is “the burden

and demand of litigation,” including litigating qualified

immunity outside the pleading stage, that “might well

prevent [federal officials]—or, to be more precise, future

officials like them—from devoting the time and effort

required for the proper discharge of their duties.” Id. at 141.

See also Egbert, 596 U.S. at 499 (raising concerns that

Bivens claims may lead to “broad-ranging discovery” and

may not be “amendable to summary disposition”)

(simplified). Indeed, we have repeatedly held that forcing the

government to make unnecessary and practically non-

reimbursable expenditures is sufficient reason to have

immediate appeal. See Baker, 603 F.2d at 761–62; Wiggins,

717 F.2d at 467–68; Copeland, 852 F.3d at 905. So we leave

here-and-now injuries without remedy if we tell Bivens

defendants that they must wait until the qualified-immunity

appeal for any relief.

Second, the majority contends that finding jurisdiction

here would violate the “spirit of Will.” Maj. Op. 19. In Will,

the Court resolved whether the refusal to apply the judgment

bar to a Bivens claim under the Federal Tort Claims Act

(“FTCA”) can be immediately appealed. Will, 546 U.S. at

347. Thus, Will is about the FTCA’s judgment bar—not the

creation of a new Bivens cause of action, as here. In denying

collateral appeal, the Court observed that the “avoidance of

litigation for its own sake” supported the FTCA’s judgment

bar—not any “public interest.” Id. at 353. The Court then

cautioned, “if 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 motion to dismiss under the

Tort Claims Act, or a federal officer lost one on a Bivens

action.” Id. at 353–354.

32 GARRAWAY V. CUIFO

The majority then take this sentence to mean that an

adverse Bivens decision does not implicate the right not to

stand trial—so there’s no need for immediate appeal. To

begin, it’s unclear whether Will was referring to established

Bivens claims here, rather than the creation of new ones,

which have different constitutional concerns. But even

assuming the Court referred to new Bivens actions, it’s

“drive-by dictum.” Graber, 59 F.4th at 612 (Hardiman, J.,

dissenting). Given everything the Court has said about the

creation of Bivens claims being a matter of substantial public

interest since Will, this one-off statement shouldn’t be

dispositive here.

Finally, the majority suggests that expanding the

collateral order doctrine, as a “judicially created exception”

to § 1291, creates the same separation-of-powers problems

as fashioning new causes of actions under Bivens. Of course,

we should always pause anytime we depart from the plain

text of a congressional statute. And whether the collateral

order doctrine is consistent with the text of § 1291 is

complicated and is a question for another day. Compare

Mohawk Indus., 558 U.S. at 115–16 (Thomas, J.,

concurring) (concluding that the collateral order doctrine

deviates from § 1291’s text) with Adam Reed Moore, A

Textualist Defense of a New Collateral Order Doctrine, 99

Notre Dame L. Rev. Reflection 1, 1 (2023) (arguing that

“final judgments, other decisions that end litigation on the

merits, and orders deciding issues that are ancillary to the

merits and will not be revisited” all fall within the meaning

of “final decisions.”).

But even if the collateral order doctrine is judge-made

law, Bivens expansion is orders of magnitude more

destabilizing to the separation of powers. As the Court has

said, the “judicial creation of a cause of action is an

GARRAWAY V. CUIFO 33

extraordinary act that places great stress on the separation

of powers.” Nestlé USA, Inc. v. Doe, 593 U.S. 628, 636

(2021) (emphasis added). And creating new Bivens claims

results in irreparable harm for each branch of government,

as discussed above. In contrast, the collateral order

doctrine’s impact is largely confined to the judicial branch.

Departure from the final-judgment rule only “undermines

efficient judicial administration and encroaches upon the

prerogatives of district court judges, who play a special role

in managing ongoing litigation.” Mohawk Indus., 558 U.S.

at 106 (simplified). That’s nothing like the systemwide

effect of Bivens-claims creation. In the end, we must follow

Supreme Court precedent. And under that clear precedent,

this court has jurisdiction to hear this appeal.

B.

Motion for Reconsideration

So under the collateral order doctrine, we have

jurisdiction to review this appeal. The only wrinkle here is

that the government appeals not from the initial denial of the

judgment on the pleadings—but from the denial of

reconsideration. See Fed. R. Civ. P. 60(b). Ordinarily,

motions for reconsideration are not subject to interlocutory

appeals under the collateral order doctrine—even when the

underlying order would have been. See Hanson, 968 F.3d at

1018 (“[W]e lack jurisdiction over an order denying a Rule

59(e) motion for reconsideration of a denial of qualified

immunity, where we do not have jurisdiction over the appeal

of the underlying order.”). But Hanson carved out an

exception for motions for reconsideration based on

“intervening law.” Id. at 1019 n.4. In those cases, the

intervening law may “render[] the collateral order doctrine

applicable.” Id. This rule applies so long as the new caselaw

34 GARRAWAY V. CUIFO

isn’t a “simple reiterat[ion]” of what’s been “explained many

times” before. See id. (simplified).

Admittedly, the Hanson exception was decided over my

objection. Id. at 1019 (Bumatay, J., concurring). But the

exception remains the binding precedent of our court and it

was made precisely for the facts here. The district court first

denied the motion for judgment on the pleadings under

existing, pre-Egbert Ninth Circuit precedent. The Supreme

Court then decided Egbert and overturned our precedent. See

Egbert, 596 U.S. at 496 (calling our court’s analysis “deeply

flawed”). Egbert then newly distilled Bivens analysis into

“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.” Id. at 496 (simplified). The government then

sought reconsideration based on Egbert’s correction of

Ninth Circuit Bivens doctrine. So this case falls squarely into

the Hanson exception.

We thus have jurisdiction over this interlocutory appeal.

II.

The District Court Erred in Recognizing a New Bivens

Cause of Action

On the merits, federal courts are no longer in the business

of creating new Bivens remedies and so the district court

should be reversed.

As I noted, “[t]he text of the Constitution provides for no

express cause of action for damages against federal officials

for violations of its provisions.” Boule v. Egbert, 998 F.3d

370, 375 (9th Cir. 2021) (Bumatay, J., dissenting from the

denial of rehearing en banc). “And for almost 200 years, no

implied cause of action existed under the Constitution

GARRAWAY V. CUIFO 35

either.” Id. That’s until Bivens came along in the 1970s. So

Bivens is both atextual and ahistorical. The Court soon

recognized that Bivens was a “relic of the heady days in

which [the] Court assumed common-law powers to create

causes of action.” Corr. Serv. Corp. v. Malesko, 534 U.S. 61,

75 (2001) (Scalia, J., concurring). In Egbert, the Court all

but sounded Bivens’ “death knell” by “creat[ing] a self-

defeating test” for new Bivens causes of action. Mohamed,

100 F.4th at 1244 (Tymkovich, J., dissenting).

The new test requires federal courts to proceed in two

steps. First, we determine whether the claim “presents a new

Bivens context”—one “meaningfully different” from the

three Bivens claims recognized by the Court. Egbert, 596

U.S. at 492 (simplified) (referring to Bivens; Davis v.

Passman, 442 U.S. 228 (1979); and Carlson v. Green, 446

U.S. 14 (1980)). 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.” Id. (simplified). In the end, the

Bivens inquiry is often reduced to one question: “whether

there is any reason to think that Congress might be better

equipped to create a damages remedy.” Id. In my view, the

answer is always “yes.” In any case, I turn to the two Bivens

steps next.

A.

New Context

Garraway’s Bivens claim presents a new context.

Garraway’s claim—that federal officers failed to protect him

from another prisoner—is “meaningfully different” from the

three recognized Bivens claims: Bivens (Fourth Amendment

illegal search), Davis (Fifth Amendment sex discrimination),

36 GARRAWAY V. CUIFO

and Carlson (Eighth Amendment failure to provide adequate

medical care).

Garraway suggests that the Supreme Court in Farmer

implicitly recognized a fourth Bivens claim under the Eighth

Amendment. In that case, the Court held that prison officials

acted with deliberate indifference to the health and safety of

an inmate when they exposed the inmate to substantial risks

of injury. Farmer, 511 U.S. at 843. But two years ago, the

Supreme Court expressly limited the three recognized

Bivens causes of action to Bivens, Davis, and Carlson—

leaving out Farmer. Egbert, 596 U.S. at 492 (citing Ziglar,

582 U.S. at 131).

Nor has this court found Farmer to be a recognized

Bivens claim. See Marquez v. C. Rodriguez, 81 F.4th 1027,

1031 (9th Cir. 2023) (“We thus decline [the] invitation to

recognize an implied fourth Bivens context arising from

Farmer. . . . If the Court were inclined to recognize it as one

of the few acceptable Bivens contexts, it would have done

so. Instead, the Court continues to reaffirm that there are but

three of these cases, and Farmer is not one of them.”);

Chambers v. C. Herrera, 78 F.4th 1100, 1105 n.2 (9th Cir.

2023) (“The Supreme Court has never recognized Farmer as

a Bivens action. We will not do so in the first instance.”).

Thus, contrary to the district court’s decision, under both

Supreme Court and Ninth Circuit precedent, Garraway’s

claim presents a new Bivens context.

B.

Reasons to Defer to Congress

Although only one is needed, several reasons support

believing that Congress, rather than our court, is in the better

position to authorize a damages remedy in this new prison

GARRAWAY V. CUIFO 37

context. See Egbert, 596 U.S. at 492. To begin, Garraway

asserts claims that touch on detention policy, which is

“peculiarly the province of the Legislative and Executive

Branches of the Government.” See Bell v. Wolfish, 441 U.S.

520, 548 (1987); id. at 547 (“[T]he problems that arise in the

day-to-day operation of a corrections facility are not

susceptible of easy solutions. Prison administrators therefore

should be accorded wide-ranging deference in the adoption

and execution of policies and practices that in their judgment

are needed to preserve internal order and discipline and to

maintain institutional security.”). This is reason enough to

defer to Congress.

But there’s more. As the Supreme Court has stated, an

existing “alternative remedial structure” precludes the

judiciary from inferring a new Bivens cause of action.

Egbert, 596 U.S. at 493 (simplified); see also Ziglar, 582

U.S. at 137. Congress has already authorized an

administrative remedy for the harms that Garraway claims

to have suffered—the Prison Litigation Reform Act, 42

U.S.C. § 1997(e). Through this Act, the Bureau of Prisons

(BOP) established a program to allow inmates to seek formal

administrative review of issues relating to their confinement.

See 28 C.F.R. § 542.10(a). The Supreme Court has also

recognized this program as a “means through which

allegedly unconstitutional actions and policies can be

brought to the attention of the BOP and prevented from

recurring.” Malesko, 534 U.S. at 73.

Because Congress is uniquely qualified to balance the

interests of prison policy and has already provided an

alternative remedy, the district court erred in recognizing

Garraway’s new Bivens cause of action.

38 GARRAWAY V. CUIFO

III.

The district court’s new-found Bivens cause of action

violates both precedent and the Constitution. Too bad we

pass on our chance to remedy this significant damage to the

separation of powers. Because we refuse jurisdiction to

review a district court ruling causing irreparable harm, I

respectfully dissent.