“Bivens actions are very limited, and new ones cannot be created where ‘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.”’” (quoting Egbert, 142 S. Ct. at 1805 )
How later courts described this case
- “Bivens actions are very limited, and new ones cannot be created where ‘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.”’” (quoting Egbert, 142 S. Ct. at 1805 )
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-1407
______________
JEREMY GRABER,
v.
POLICE OFFICER JOHN DOE II, Badge No. in his
individual and official capacity as an officer for the city of
Philadelphia Police Department; POLICE OFFICER JOHN
DOE III, Badge No. in his individual and official capacity as
an officer for the city of Philadelphia Police Department;
POLICE OFFICER JOHN DOE IV, Badge No. in his
individual and official capacity as an officer for the city of
Philadelphia Police Department; SPECIAL AGENT
MICHAEL BORESKY, in his individual and official capacity
as a Special Agent for the U.S. Secret Services; POLICE
INSPECTOR JOEL DALES, in his individual and official
capacity as an Inspector for the city of Philadelphia
Special Agent Michael Boresky,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-18-cv-03168)
U.S. District Judge: Honorable Cynthia M. Rufe
______________
Argued
October 4, 2022
______________
Before: HARDIMAN, SHWARTZ, and NYGAARD, Circuit
Judges.
(Filed: February 10, 2023)
______________
Brian M. Boynton
Joseph F. Busa
Jaynie Lilley [ARGUED]
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Paul E. Werner
United States Department of Justice
Torts Branch, Civil Division
P.O. Box 7146, Ben Franklin Station
Washington, DC 20044
Counsel for Appellant
Paul J. Hetznecker [ARGUED]
1420 Walnut Street
Suite 911
Philadelphia, PA 19102
2
Counsel for Appellee
______________
OPINION OF THE COURT
______________
SHWARTZ, Circuit Judge.
In Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court
held that a cause of action existed against federal agents who
violated the Fourth Amendment. Relying on Bivens, Plaintiff
Jeremy Graber sued Defendant Michael Boresky, a Special
Agent for the United States Secret Service, asserting that
Boresky violated his Fourth Amendment rights by arresting,
detaining, and charging him with a crime without probable
cause. In an order denying a motion to dismiss, the District
Court held that a Bivens claim could be brought against
Boresky. Thereafter, the Court dismissed Boresky’s motion
for summary judgment without prejudice based upon qualified
immunity because it found that discovery was needed to
determine whether Boresky was entitled to qualified immunity.
At oral argument before our Court, Boresky stated that he is
not challenging the qualified immunity ruling but argued that
we should review the District Court’s Bivens ruling. Because
the Bivens ruling is not a final decision and is not appealable
under the collateral order doctrine, we lack jurisdiction to
consider that interlocutory ruling and we must dismiss this
appeal.
3
I
A
In 2016, Philadelphia hosted the Democratic National
Convention (the “Convention”). The Department of
Homeland Security (“DHS”) designated the event as a
National Special Security Event (“NSSE”). Once an event is
designated an NSSE, federal agencies coordinate operational
security with state and local law enforcement. Relevant here,
the Secret Service “coordinate[d] the development and
implementation of the overall operational security plan.” App.
53.
In the lead-up to the Convention, the Secret Service
announced that access to certain areas around the Convention
would be restricted (the “Restricted Area”). 1 The Restricted
0F
Area was surrounded by an eight-foot fence.
On the evening of July 27, 2016, Plaintiff joined
political protests outside the Restricted Area. 2 Protestors
1F
breached the gated perimeter around the Restricted Area. The
Philadelphia Police Department (“PPD”) apprehended those
within the Restricted Area. Plaintiff was one of seven
individuals taken into custody. PPD did not prepare any arrest
paperwork for Plaintiff.
1
The Restricted Area was Broad Street from 7th Street
to 20th Street, the cross-streets between Packer Avenue to I-
95, and the entirety of FDR Park.
2
Plaintiff, a paramedic, was also there to provide
emergency medical aid to protestors.
4
Thereafter, the Assistant to the Special-Agent-in-
Charge of the Secret Service in Philadelphia informed Boresky
of the arrests and told him that the arrestees were to be charged
with violating 18 U.S.C. § 1752, 3 and that Boresky would serve
2F
as the affiant for the criminal complaint. 4 The next morning,
3F
Special Agent Aaron McCaa e-mailed Boresky a synopsis of
the events leading to the arrests as well as photographs of the
fence and evidence seized from the arrestees.
Boresky appeared before a Magistrate Judge and signed
an affidavit identifying Plaintiff as one of the seven individuals
arrested inside the Restricted Area. Boresky attested that the
contents of the affidavit were based upon his “personal
knowledge, experience and training,” “information developed
during the course of this investigation,” and “information . . .
imparted to [him] by other law enforcement officers.” App.
77. Boresky admits that he was not present at the arrest and
did not write the affidavit but reviewed it for accuracy based
upon the information in McCaa’s synopsis. Boresky did not
view any video evidence before swearing out the affidavit.
Plaintiff was held overnight at the Federal Detention
Center. Plaintiff’s counsel thereafter provided Fox 29 News
video clips to the Government confirming that Plaintiff never
3
18 U.S.C. § 1752 prohibits persons and groups from
entering a restricted area where a Secret Service protectee is or
will be visiting or an area restricted in conjunction with an
event designated as a special event of national significance.
4
The night before Plaintiff’s arrest, Boresky served as
the affiant for criminal complaints against four other
individuals arrested for unlawfully entering the Restricted
Area.
5
passed through the fence. Plaintiff was released and the
charges were dismissed.
B
Citing Bivens, Plaintiff sued Boresky for false arrest,
unlawful detention, and false charges. 5 Boresky moved to
4F
dismiss, arguing that Plaintiff could not pursue his Fourth
Amendment claim against him under Bivens. Graber v. Dales,
No. 18-CV-3168, 2019 WL 4805241, at *1-2 (E.D. Pa. Sept.
30, 2019) (“Graber I”). 6 The District Court employed the
5F
Supreme Court’s two-step framework set forth in Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017), which requires a court to first
consider whether a plaintiff’s claim presents a context in which
the Supreme Court had not previously recognized a Bivens
claim and, if so, whether special factors counsel against
extending Bivens to permit such a claim. Graber I, 2019 WL
4805241, at *3 (citing Ziglar, 137 S. Ct. at 1857-60). The
Court denied Boresky’s motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6), concluding that Plaintiff’s Fourth
Amendment claim, predicated on the assertion that he was
arrested and charged without probable cause, did not present a
“new Bivens context,” id. at *3, and thus presented a basis for
5
Plaintiff also asserted First Amendment and
conspiracy claims against all officers.
6
The District Court dismissed the claims against
Boresky in his official capacity for lack of subject-matter
jurisdiction because the United States had not waived
sovereign immunity for constitutional tort claims as well as
Plaintiff’s First Amendment and civil conspiracy claims
against Boresky in his individual capacity for failure to state a
claim. Graber I, 2019 WL 4805241, at *2, 7-9.
6
relief. The Court further held that, even if Plaintiff’s claim
arose in a new context, special factors did not counsel against
extending Bivens to permit Plaintiff’s claim to proceed. Id. at
*4-5.
The case then proceeded to discovery. Amid discovery
disputes between the parties, Boresky filed a motion for
summary judgment based on qualified immunity and asked to
stay discovery pending resolution of that motion. Graber v.
Dales, 511 F. Supp. 3d 594, 595 (E.D. Pa. 2021) (“Graber II”).
Plaintiff responded by filing a declaration under Federal Rule
of Civil Procedure 56(d), asserting that he needed discovery to
respond to Boresky’s summary judgment motion.
The District Court concluded that Boresky’s entitlement
to qualified immunity hinged on whether it was “objectively
reasonable” for him to believe that there was probable cause to
detain and charge Plaintiff, and this required consideration of
“evidence surrounding the statements and communication
upon which Defendant Boresky relied.” Id. at 599. Because
Plaintiff had no opportunity to conduct any discovery, the
Court concluded that it would be “wholly inequitable” to
permit Boresky to rely upon affidavits and communications to
which Plaintiff had no access and denied the qualified
immunity motion without prejudice to permit discovery. Id. at
600.
Boresky appeals, waiving his challenge to the qualified
immunity ruling and asking us to review whether the District
Court erred in holding Plaintiff could bring a Bivens claim.
Oral Argument at 5:52-6:02, Graber v. Boresky (Oct. 4, 2022)
(No. 21-1407),
https://www2.ca3.uscourts.gov/oralargument/audio/21-
7
1407Graberv.SpecialAgentMichaelBoresky.mp3.
II 7
6F
A
At the outset, we must ensure we have jurisdiction over
this appeal. While we would have had jurisdiction to review
an interlocutory appeal of the District Court’s qualified
immunity order, 8 Mack v. Yost, 968 F.3d 311, 318 (3d Cir.
7F
7
The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. § 1331.
8
Where a district court defers ruling on qualified
immunity to permit further fact discovery, as is the case here,
“implicit in that ruling” is the legal conclusion that the plaintiff
adequately pled a violation of clearly established law, and thus
the order is immediately appealable. Oliver v. Roquet, 858
F.3d 180, 189 (3d Cir. 2017) (holding appellate jurisdiction
existed despite factual component of the court’s qualified
immunity ruling); see also In re Montgomery Cnty., 215 F.3d
367, 370 (3d Cir. 2000) (concluding that an “implicit denial”
of immunity claims is “sufficient to confer appellate
jurisdiction”). The District Court’s order dismissing the
motion seeking summary judgment based on qualified
immunity to allow for discovery contains the implicit legal
conclusion that Bivens is available in this context. See
Vanderklok v. United States, 868 F.3d 189, 197 (3d Cir. 2017)
(characterizing Bivens remedy as a “threshold question of law”
that “is directly implicated by the defense of qualified
immunity”); see also Wilkie v. Robbins, 551 U.S. 537, 549 n.4
(2007) (recognizing appellate courts have jurisdiction over
8
2020), Boresky no longer challenges the qualified immunity
ruling. As a result, we must determine whether we can review
the Court’s Rule 12(b)(6) Bivens ruling untethered from a
challenge to a qualified immunity ruling. Boresky contends
that we have jurisdiction under the collateral order doctrine.
We have jurisdiction over “appeals from all final
decisions of the district courts.” 28 U.S.C. § 1291. There are,
however, “a small class of rulings, not concluding the
litigation, but conclusively resolving claims of right separable
from, and collateral to, rights asserted in the action.” Will v.
Hallock, 546 U.S. 345, 349 (2006) (quotation marks and
citation omitted). Such interlocutory orders are appealable
under the collateral order doctrine if they: (1) “conclusively
determine the disputed question”; (2) “resolve an important
issue completely separate from the merits of the action”; and
(3) are “effectively unreviewable on appeal from a final
judgment.” Id. (citation omitted). The Supreme Court has
described these elements as “stringent” to ensure that the
collateral order doctrine does not “overpower the substantial
finality interests § 1291 is meant to further.” Id. at 349-50; see
also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,
868 (1994) (describing the collateral order doctrine as a
“narrow exception” to the final order requirement). Orders
falling into this narrow group “are sufficiently important and
collateral to the merits [such] that they should nonetheless be
treated as final.” Will, 546 U.S. at 347 (quotation marks and
citation omitted).
interlocutory appeals challenging a Bivens ruling in a qualified
immunity appeal).
9
A Bivens ruling does not fall within this small group of
orders that require interlocutory review under the collateral
order doctrine: a Bivens ruling can be effectively reviewed
after final judgment because, unlike various immunity
doctrines, a Bivens ruling is not meant to protect a defendant
from facing trial. The Supreme Court has identified several
types of orders that are entered to protect a defendant from
facing trial, and each would be effectively unreviewable if
considered after final judgment is entered: orders denying
absolute immunity, orders denying qualified immunity, orders
denying Eleventh Amendment immunity, and adverse double
jeopardy rulings. Id. at 350 (collecting cases). An order
denying immunity (or double jeopardy protection) from suit
cannot be “reviewed ‘effectively’ after a conventional final
judgment,” id. at 351, because the suit has already occurred by
the time the appeal is reviewed, and thus the purpose of the
immunity (or double jeopardy protection) is defeated, see, e.g.,
Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995)
(“[A]n official’s qualified immunity is an immunity from suit
rather than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously
permitted to go to trial.” (quotation marks, citation, and
emphasis omitted)).9 Moreover, the immunity doctrines in
9
The dissent is correct that the collateral order doctrine
allows review of more than orders addressing assertions of
immunity, and each of the additional examples the dissent cites
is similarly reviewable under the collateral order doctrine
because each involves issues that are “in danger of becoming
moot,” and thus unreviewable, following a final judgment.
United States v. Mitchell, 652 F.3d 387, 397 (3d Cir. 2011) (en
banc) (citation omitted) (order prohibiting pretrial collection of
defendant’s DNA sample); see also United States v. Bellille,
10
particular are meant to allow government officers to avoid “the
burdens of litigation” and to carry out their duties without the
threat of a “full trial . . . whenever they acted reasonably in the
face of law that is not ‘clearly established.’” Will, 546 U.S. at
352. Thus, immediate review of orders denying immunity
furthers the goal of the immunity doctrines, which is to avoid
trial, while also “honoring the separation of powers,”
“preserving the efficiency of government,” and encouraging
“the initiative of its officials.” Id.
Bivens, however, is not an immunity doctrine. See, e.g.,
F.D.I.C. v. Meyer, 510 U.S. 471, 483-84 (1994) (observing that
“whether there has been a waiver of sovereign immunity” is
“analytically distinct” from whether substantive law upon
which plaintiff relies provides a basis for relief). Rather, it is a
judicially created cause of action that allows a plaintiff to sue
962 F.3d 962, 737-38 (3d Cir. 2020) (order denying motion to
withdraw as counsel); Doe v. Coll. of N.J., 997 F.3d 489, 494
(3d Cir. 2021) (order denying motion to proceed
anonymously); United States v. Wecht, 537 F.3d 222, 228-29
(3d Cir. 2008) (order denying the public’s right of access to a
criminal trial). In other words, each of these issues, unlike a
Bivens ruling, involves a right that would be “irretrievably
lost” absent an immediate appeal. Praxis Props., Inc. v.
Colonial Sav. Bank, S.L.A., 947 F.2d 49, 60 (3d Cir. 1991), as
amended on denial of reh’g (Nov. 13, 1991) (order denying
statutory right to a 90-day stay). The issue of whether there is
a cognizable Bivens claim does not become moot following a
final judgment. Instead, a litigant can continue to assert a
defense under Bivens and seek review of that defense after the
entry of a final judgment because his right not to be held liable
is not “irretrievably lost” absent an interlocutory appeal.
11
a federal officer for damages for constitutional violations.
Bivens actions are very limited, and new ones cannot be
created where “there is any rational reason (even one) to think
that Congress is better suited to ‘weigh the costs and benefits
of allowing a damages action to proceed.’” Egbert v. Boule,
142 S. Ct. 1793, 1805 (2022) (emphasis omitted) (quoting
Ziglar, 137 S. Ct. at 1858). The Court’s focus in determining
whether such a claim can be brought, therefore, is on whether
courts should be in the business of creating avenues for
liability, which is distinct from whether a defendant is immune
from suit altogether.
The Supreme Court itself has recognized this difference
and the impact it has on the ability to seek immediate review
of a Bivens ruling. The Court stated that “if simply
abbreviating litigation troublesome to Government employees
were important enough for [collateral order] treatment, [then]
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.”10 Will, 546 U.S. at 353-54 (rejecting
10
The dissent characterizes the Supreme Court’s
statement as dicta. Even if that label is accurate, we have held
that statements made by the Supreme Court in “dicta are highly
persuasive.” Galli v. N.J. Meadowlands Comm'n, 490 F.3d
265, 274 (3d Cir. 2007). We have observed that, because the
“Supreme Court uses dicta to help control and influence the
many issues it cannot decide because of its limited docket,”
failing to follow those statements could “frustrate the
evenhanded administration of justice by giving litigants an
outcome other than the one the Supreme Court would be likely
12
application of the collateral order doctrine to the Federal Tort
Claims Act’s judgment bar). In short, the Supreme Court has
recognized that a Bivens ruling is different from an immunity
ruling and is not eligible for interlocutory appeal under the
collateral order doctrine. Id.11
Accordingly, Boresky’s assertion that there is no cause
of action under Bivens is simply a defense to liability, which
can be effectively reviewed after the entry of final judgment.
Cf. Swint, 514 U.S. at 41-43 (holding that a denial of a motion
for summary judgment on a Monell claim is not appealable
under the collateral order doctrine because the defendant’s
argument would amount to a “mere defense to liability” that
could be “reviewed effectively on appeal from final
judgment”). Unlike an immunity ruling, any error in a Bivens
to reach were the case heard there.” Official Comm. of
Unsecured Creditors of Cybergenics Corp. v. Chinery, 330
F.3d 548, 561 (3d Cir. 2003) (quoting In re McDonald, 205
F.3d 606, 612-613 (3d Cir. 2000)).
11
The dissent’s observations about separation of powers
are well-taken but they do not support creating an avenue for
interlocutory review of an issue that goes directly to liability.
The Supreme Court’s Bivens jurisprudence cautions courts not
to create new causes of action, as that is the job of the
legislature. See Egbert, 142 S. Ct. at 1802 (2022). However,
whether a court has created a cause of action or, in the language
of Bivens, a plaintiff presented a context in which such a
Bivens claim had not been recognized, presents questions
about whether the plaintiff has stated a claim upon which relief
may be granted, which is the type of ruling regularly reviewed
after the entry of final judgment.
13
ruling can be cured on appeal at the end of the case.12 Thus, an
order denying a motion to dismiss or for summary judgment
based upon Bivens, untethered to an order denying qualified
immunity, is not appealable under the collateral order
doctrine. 138F
A sister circuit court reached the same conclusion. In
Himmelreich v. Federal Bureau of Prisons, 5 F.4th 653 (6th
Cir. 2021), the Court of Appeals for the Sixth Circuit held that
an appellate court lacks jurisdiction under the collateral order
doctrine over a Bivens ruling absent an appealable qualified
immunity order. Id. at 659. The court assumed without
deciding that the Bivens order there, which permitted plaintiff
to proceed on his First Amendment claim against a federal
officer, was a conclusive ruling and that the order resolved an
issue of separation of powers distinct from the plaintiff’s
constitutional claim. Id. at 661. However, the court concluded
that the issue could be adequately reviewed following final
judgment. Id. at 662. Like us, the court also observed that
Bivens provides a “remedy for unconstitutional conduct” but
“does not grant defendants entitlement not to stand trial.” Id.
12
Because an order denying dismissal based upon
Bivens fails the third factor from Will, we need not consider
whether the first or second Will factors—whether the order
“conclusively determine[d] the disputed question” or
“resolve[d] an important issue completely separate from the
merits of the action,” 546 U.S. at 349—are satisfied.
13
The Supreme Court counsels appellate courts to
hesitate in enlarging the types of orders eligible for review
under the collateral order doctrine that are not independently
appealable nor certified for review under 28 U.S.C. § 1292(b).
Swint, 514 U.S. at 47-48.
14
Because a Bivens ruling can be effectively reviewed
after the entry of final judgment, it is not an order that falls
within the small class of orders that are immediately appealable
under the collateral order doctrine and, as a result, we lack
appellate jurisdiction to review the District Court’s Bivens
ruling.14
14
The availability of an alternative appellate
mechanism pursuant to 28 U.S.C. § 1292(b) also counsels
against the position taken by the Government and the dissent.
For difficult questions of law “in exceptional cases,” parties
may seek interlocutory review by a court of appeals. Milbert
v. Bison Labs., Inc., 260 F.2d 431, 433 (3d Cir. 1958). A
district court may grant a certificate of appealability under
§ 1292(b) when its order: “(1) involve[s] a ‘controlling
question of law,’ (2) offer[s] ‘substantial ground for a
difference of opinion’ as to its correctness, and (3) if appealed
immediately ‘materially advance[s] the ultimate termination of
the litigation.’” Katz v. Carte Blanche Corp., 496 F.2d 747, 754
(3d Cir. 1974) (en banc) (quoting § 1292(b)). Certification is
available for purposes that address the Government’s concerns
here: avoiding “a wasted[,] protracted trial” when “a pretrial
order erroneously overrul[ed] a defense going to the right to
maintain the action.” Id. (citing legislative history of
§ 1292(b)). One of § 1292(b)’s regular uses is to permit
interlocutory appeal to decide whether a statute permits a
private cause of action. See, e.g., Zeffiro v. First Pa. Banking
& Tr. Co., 623 F.2d 290, 292 (3d Cir. 1980) (whether an
injured investor has a federal cause of action under the Trust
Indenture Act of 1939); Northstar Fin. Advisors, Inc. v.
Schwab Invs., 615 F.3d 1106, 1114-15 (9th Cir. 2010)
(whether there is a private right of action to enforce § 13(a) of
the Investment Company Act of 1940); Love v. Delta Air
15
III
For the foregoing reasons, we will dismiss this appeal.
Lines, 310 F.3d 1347, 1350-51 (11th Cir. 2002) (whether the
Air Carrier Access Act of 1986 implies a private right of
action). That determination and the availability of a Bivens
remedy present a question of law in the same category: can the
plaintiff sue at all? The discretionary availability of
§ 1292(b)’s mechanism makes us hesitate to agree that an order
allowing a Bivens claim to proceed is one within “that small
class” of orders “too important to be denied review and too
independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.”
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949).
16
Jeremy Graber v. Special Agent Michael Boresky et al.,
No. 21-1407
______________
HARDIMAN, Circuit Judge, dissenting.
This appeal is unusual. Special Agent Michael Boresky
could have filed a meritorious interlocutory appeal of the
District Court’s order dismissing without prejudice his motion
for summary judgment on qualified immunity. Instead,
Boresky asks us to be the first appellate court to hold that an
order denying a motion for summary judgment that challenges
the existence of a Bivens cause of action is appealable before a
final judgment is entered. This gambit implicates two
conflicting trends of Supreme Court jurisprudence: the Court’s
careful policing of the expansion of the collateral order
doctrine established in Cohen v. Beneficial Industrial Loan
Corporation, 337 U.S. 541 (1949), and its repeated refusal to
allow new constitutional tort actions against federal officers
under Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). It’s hard to predict how the
Supreme Court would resolve this conflict. But because I think
the Court will allow interlocutory appeals in cases like this
one—where the constitutional separation of powers is
imperiled—I respectfully dissent.
I
In Swint v. Chambers County Commission, 514 U.S. 35
(1995), the Supreme Court identified appealable collateral
orders as those that (1) are “conclusive,” (2) “resolve important
questions separate from the merits,” and (3) are “effectively
unreviewable on appeal from the final judgment.” 514 U.S. at
42. The majority opinion holds that Boresky failed to satisfy
the third criterion. In doing so, it focuses on four types of
collateral orders the Supreme Court has recognized, observing
that each rejects a defense the purpose of which is to avoid suit
altogether. Maj. Op. 10–12. The majority then notes that
Bivens is “not an immunity doctrine” but rather addresses
“whether courts should be in the business of creating avenues
for liability.” Id. at 11–12. I agree with those propositions.
But an immunity is neither sufficient nor necessary for an
order denying a claim to be “effectively unreviewable on
appeal.” That criterion is met if an order denies a potentially
dispositive pretrial defense that implicates a sufficiently
important public value. See Will v. Hallock, 546 U.S. 345, 352–
53 (2006). And we have recognized collateral orders that do
not involve immunity defenses at all, much less immunity from
suit. See, e.g., United States v. Mitchell, 652 F.3d 387, 398 (3d
Cir. 2011) (en banc) (orders prohibiting pretrial collection of a
criminal defendant’s DNA sample); United States v. Bellille,
962 F.3d 731, 737–38 (3d Cir. 2020) (orders denying motions
to withdraw as counsel in criminal cases); Doe v. Coll. of N.J.,
997 F.3d 489, 494 (3d Cir. 2021) (orders denying motions to
proceed anonymously); Chehazeh v. Att’y Gen., 666 F.3d 118,
139 (3d Cir. 2012) (sua sponte BIA orders to reopen removal
proceedings); United States v. Wecht, 537 F.3d 222, 229 (3d
Cir. 2008) (orders denying the public’s right of access to a
criminal trial); Praxis Properties, Inc. v. Colonial Sav. Bank,
S.L.A., 947 F.2d 49, 61 (3d Cir. 1991), as amended on denial
of reh’g (Nov. 13, 1991) (orders denying requests for a
litigation stay under 12 U.S.C. § 1821(d)(12)). The Supreme
Court has done likewise. See Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 170–72 (1974) (orders allocating the costs of
providing notice to class members); Stack v. Boyle, 342 U.S. 1,
6 (1951) (orders denying motions to reduce bail). And several
2
kinds of collateral orders involve interests that are less weighty
than the constitutional value imperiled by the District Court’s
Bivens authorization: the separation of powers. See, e.g.,
Cohen, 337 U.S. at 546–47 (orders rejecting the applicability
of security laws enacted after the initiation of derivative
shareholder suits); Praxis Properties, 947 F.2d at 61 (orders
denying requests for a litigation stay).
The majority leans on the Supreme Court’s decision in Will
v. Hallock, stating: “the Supreme Court has recognized that a
Bivens ruling is different from an immunity ruling and is not
eligible for interlocutory appeal under the collateral order
doctrine.” Maj. Op. 13 (emphasis added). Will did not so hold.
The issue there was whether a “refusal to apply the judgment
bar of the Federal Tort Claims Act is open to collateral appeal.”
546 U.S. at 347. The Court held it was not. Id.
What’s more, Will characterized the interest supporting the
FTCA’s judgment bar as “avoidance of litigation for its own
sake.” Id. at 353. The Court contrasted this “mere avoidance”
of trial generally with avoidance of a trial that would “imperil
a substantial public interest”; the latter is what counts under
Swint’s third criterion. Id. “[I]f,” the Court concluded, “simply
abbreviating litigation troublesome to Government employees
were important enough for Cohen treatment,” a 28 U.S.C.
§ 1291 appeal would lie whenever a federal officer lost a
motion to dismiss “on a Bivens action”—or the Tort Claims
Act, 42 U.S.C. § 1983, or Ex parte Young, 209 U.S. 123
(1908). Id. at 353–54.
The majority cites this sentence from Will as evidence of
the Supreme Court’s “recogni[tion]” that an order authorizing
a Bivens cause of action is ineligible for interlocutory appeal.
Maj. Op. 13. I don’t put as much stock as my colleagues in the
3
Court’s drive-by dictum about Bivens, primarily because of
several substantive points Will made. First, the Court noted that
the FTCA’s judgment bar isn’t important enough to merit
interlocutory appeal of orders denying its applicability because
it resembles the defense of claim preclusion, which “has not
been thought to protect values so great that only immediate
appeal can effectively vindicate them.” Will, 546 U.S. at 355.
Will also contrasted the judgment bar’s “essential procedural
element”—the bar can be raised “only after a case under the
Tort Claims Act has been resolved in the Government’s
favor”—with a qualified immunity defense, which is “timely
from the moment an official is served with a complaint.” Id. at
354. The defense that no Bivens cause of action lies is just like
qualified immunity in this respect. Finally, Will acknowledged
that “honoring the separation of powers” and “preserving the
efficiency of government and the initiative of its officials”
were “particular value[s] of a high order” sufficient to warrant
§ 1291 interlocutory review. Id. at 352. Those are precisely the
values imperiled by erroneous Bivens authorizations.
II
I agree with my colleagues that we must police the
parameters of the collateral order class “stringent[ly].” Maj.
Op. 9 (quoting Will, 546 U.S. at 349). That class must remain
of “modest scope.” Will, 546 U.S. at 350. Yet we do recognize
new collateral orders. See, e.g., Bellille, 962 F.3d at 737–38;
Doe, 997 F.3d at 494. Our task is to honor the collateral order
doctrine’s “internal logic” and “strict[ly] appl[y]” the Cohen
criteria restated in Swint. Ashcroft v. Iqbal, 556 U.S. 662, 672
(2009).
4
A
The majority concludes that we lack jurisdiction because
the order in question resolves an issue that would not be
“effectively unreviewable on appeal” after final judgment. I
understand that criterion—Swift’s third—differently than my
colleagues.
The touchstone for that criterion is the importance of the
values imperiled by an erroneous ruling. See Will, 546 U.S. at
351–52 (“only some orders denying an asserted right to avoid
the burdens of trial qualify” under Cohen, namely those
involving interests judged sufficiently valuable); Sell v. United
States, 539 U.S. 166, 177 (2003) (the “importance of the
constitutional issue” can distinguish appealable from non-
appealable collateral orders); Wecht, 537 F.3d at 229 (asking
whether the “value” of immediate vindication is “significant
enough to justify [interlocutory] review”); Lauro Lines s.r.l. v.
Chasser, 490 U.S. 495, 503 (1989) (Scalia, J., concurring)
(post-judgment vindication is “enough” when the interest in
question is not “sufficiently important” to overcome the
policies underlying the final judgment rule). So it’s not
enough—though it is necessary—for Boresky to invoke an
interest that will be “essentially destroyed” if its vindication
awaits post-trial review. Lauro Lines, 490 U.S. at 499. He must
also invoke a “particular value of a high order” or a “substantial
public interest” to tip the scale. Will, 546 U.S. at 352–53.
Whether delayed review would imperil such a value is the
collateral order doctrine’s “decisive consideration.” Mohawk
Industries, Inc. v. Carpenter, 558 U.S. 100, 107 (2009).
5
As those precedents suggest, not only those prerogatives
flying under the banner of “immunity” can be collateral.1 First,
not every denial of an immunity defense warrants interlocutory
review. See, e.g., Van Cauwenberghe v. Biard, 486 U.S. 517,
524 (1988) (denial of a “claim of immunity from civil service
of process” is not a collateral order); We, Inc. v. City of
Philadelphia, 174 F.3d 322, 326 (3d Cir. 1999) (denial of
“Noerr-Pennington immunity” is not a collateral order).
Second, not every collateral order denies an immunity
claim. Cohen itself held that an order rejecting the applicability
of a security law enacted after the initiation of a derivative
shareholder suit was “final” under § 1291. 337 U.S. at 546–47.
The Supreme Court has also recognized orders allocating the
costs of providing notice to class members as collateral. Eisen,
417 U.S. at 170–72. And we have recognized collateral orders
implicating other rights or interests that are not immunities. It’s
true that whether a claimed entitlement is better characterized
as an immunity from suit or defense against liability is a key
consideration under the collateral order doctrine. Robinson v.
Hartzell Propeller, Inc., 454 F.3d 163, 171 (3d Cir. 2006). But
that’s because whereas a pure “right not to be tried” necessarily
satisfies Swint’s third criterion, not every “right whose remedy
requires the dismissal” of a claim before trial does. United
States v. Hollywood Motor Car Co., 458 U.S. 263, 269 (1982).
The majority cites favorably the Sixth Circuit’s decision in
Himmelreich v. Federal Bureau of Prisons, 5 F.4th 653 (6th
Cir. 2021), which denied that an order allowing a Bivens action
1
Since there is sometimes “no obviously correct way” to
characterize the value or interest at issue, it is not always clear
whether we are dealing with an “immunity.” Lauro Lines, 490
U.S. at 500.
6
to proceed was collateral under § 1291. Respectfully, that
decision also misunderstands Swint’s third criterion.
Himmelreich assumed that the district court’s order
conclusively determined an important issue separate from the
merits. 5 F.4th at 661. The court then denied that such an order
was “effectively unreviewable” on appeal from final judgment.
Id. at 662. It reasoned: “[u]nlike qualified immunity, Bivens
provides a plaintiff’s remedy for unconstitutional conduct. It
does not grant defendants an entitlement not to stand trial.” Id.
But Swint’s third criterion does not ask only whether a
defendant has an entitlement not to stand trial. And
Himmelreich, like the majority here, mistakenly concluded that
Will foreclosed the argument that “the collateral order doctrine
extends to standalone appeals of district court orders
recognizing a Bivens remedy.” Id.
In short, Swint’s third criterion does not look to whether an
immunity is asserted. It focuses on the importance of the values
involved in the order under review.
B
I would hold that interlocutory appeals from orders
denying motions for summary judgment that challenge the
cognizability of a Bivens cause of action are “final” under
§ 1291 and the collateral order doctrine. Though we have
rejected the application of the collateral order doctrine to non-
final orders in “the vast majority of cases,” Robinson, 454 F.3d
at 170, the order at issue here satisfies Swint’s criteria. The
Supreme Court’s recent opinions delimiting the scope of
Bivens underscore the importance of the values jeopardized
when district courts wrongly allow such claims to proceed.
And orders denying summary judgment motions arguing that
no Bivens cause of action is cognizable conclusively determine
7
an important question of law distinct from a Bivens claim’s
merits.
1
Orders like those just mentioned are effectively
unreviewable on appeal because they imperil a “particular
value of a high order” and “substantial public interest,” Will,
546 U.S. at 352–53: the Constitution’s separation of the
legislative and judicial powers.
A cause of action is a “remedial mechanism.” Bivens, 403
U.S. at 397. It permits a plaintiff to “appropriately invoke the
power of [a] court” to hear his suit and grant relief. Davis v.
Passman, 442 U.S. 228, 240 n.18 (1979). The choice to allow
a Bivens action to proceed against a federal officer requires
consideration of “a number of economic and governmental
concerns,” including the “time and administrative costs” run
up by the discovery and trial process and the extent to which
“monetary and other liabilities should be imposed upon”
officers who violate the Constitution. Ziglar v. Abbasi, 137 S.
Ct. 1843, 1856 (2017). Congress is “best positioned” to reach
that sort of judgment. Hernandez v. Mesa, 140 S. Ct. 735, 742
(2020) (Hernandez II). So it’s a “significant step under
separation-of-powers principles” for an Article III court to
authorize a Bivens action. Ziglar, 137 S. Ct. at 1856. That’s
why doing so is a “disfavored judicial activity.” Id. at 1857
(internal quotation marks and citation omitted).
The Supreme Court recently put the point more directly:
“creating a cause of action is a legislative endeavor,” pure and
simple. Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022). The
Judiciary’s power to authorize a Bivens cause of action at all is
“uncertain”—so much so that a court should not extend Bivens
8
if there is any rational reason to think Congress better
positioned to decide whether to create a cause of action. Id. at
1803. That hurdle is a high one. So too the cost of wrongly
clearing it: Congress cannot undo judicially created
constitutional remedies. Dongarra v. Smith, 27 F.4th 174, 181
(3d Cir. 2022).
The Court has called the separation of powers a “particular
value of a high order” that satisfies Swint’s third criterion. Will,
546 U.S. at 352. In my view, “protect[ing] the constitutional
command of separation of powers” against the “impermissible
assertion” of authority by “the federal courts” is an imperative
worthy of immediate enforcement. Helstoski v. Meanor, 442
U.S. 500, 505–06 (1979). We should show “special solicitude”
toward “threatened breach[es]” of the “separation of powers.”
Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982).
It’s true that forcing a private litigant to shoulder the
burden of a legally unwarranted trial is often consistent with
the calculus underlying the final judgment rule. Cf. Robinson,
454 F.3d at 171–72. But the Bivens defendant always is a
federal officer. Also, unlike the defenses invoked under res
judicata and statutes of limitation, which protect only the
“interest in not being held ultimately liable” on some claim,
Bell Atl. v. Penn. Pub. Util. Comm’n, 273 F.3d 337, 344 (3d
Cir. 2001), the defendant sued under Bivens asserts that the
court cannot entertain the claim in the first place. See Elhady
v. Unidentified CBP Agents, 18 F.4th 880, 884 (6th Cir. 2021)
(“Plaintiffs . . . often have no cause of action unless we extend
Bivens. And if there is no cause of action, courts should stop
there.”); Vanderklok v. United States, 868 F.3d 189, 197 (3d
Cir. 2017) (existence of Bivens cause of action is a “threshold
question of law”). And though “privately negotiated” or
privately “conferred” rights—such as entitlements allocated in
9
settlement agreements—often fail to “rise to the level of
importance” required by Swint’s third criterion, Digital
Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 876,
878–79 (1994), the Bivens defendant’s right not to be subject
to a claim for which no cause of action lies is assured by the
Constitution.2
Judicial creation of a cause of action against federal
officers places “great stress on the separation of powers.”
Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1938 (2021). And
orders “rais[ing] questions of clear constitutional importance”
are sufficiently important to warrant immediate review. Sell,
539 U.S. at 176; see also Chehazeh, 666 F.3d at 138–39 (an
interest raising substantial concerns that implicate
constitutional safeguards is “compelling” under Swint’s third
criterion). A court’s decision to authorize a Bivens cause of
action also generates “substantial costs” for Executive officers.
Ziglar, 137 S. Ct. at 1855. Expansion of Bivens in violation of
the separation of powers thus disrupts effective governance,
subjecting officers to the same “distraction from duty” that
qualified immunity is meant to foreclose. Digital Equipment,
511 U.S. at 881 (cleaned up). That harm cannot be undone even
2
Though that entitlement is not express in the Constitution or
federal law, the Supreme Court long ago discarded the rule that
a value or interest must “rest[] upon an explicit statutory or
constitutional guarantee” to warrant interlocutory review.
Midland Asphalt Corp. v. United States, 489 U.S. 794, 801
(1989) (emphasis added). The value need only “originat[e] in
the Constitution or statutes,” or be “embodied in” those
sources—as the separation of powers does and is. Digital
Equipment, 511 U.S. at 879.
10
if the officer is acquitted. See Sell, 539 U.S. at 177. The
problem with erroneous Bivens extensions, then, is “not limited
to liability for money damages,” Mitchell v. Forsyth, 472 U.S.
511, 526 (1985); a more serious risk is hindrance of
government interests. See Egbert, 142 S. Ct. at 1805 (courts
inevitably “impair governmental interests” when they
misapply the Bivens special factors analysis) (cleaned up). The
Supreme Court has signaled that we should proactively
mitigate those harms—including on our own initiative. See id.
at 1806 n.3 (courts have a sua sponte “responsibility” to
“evaluate any grounds that counsel against Bivens relief,” even
those not raised by the parties, because “recognizing a Bivens
cause of action is an extraordinary act”) (cleaned up). We’ve
done the same by setting aside party waiver to correct Bivens
errors. See Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018)
(overlooking waiver to reach the cognizability of a Bivens
cause of action because “[t]o rule otherwise would be to allow
new causes of action to spring into existence merely through
the dereliction of a party”).
In sum, a court’s wrongful arrogation of the legislative
power to create a cause of action for claims of constitutional
torts against federal officers violates the constitutional
separation of powers and disrupts effective governance.
Because those harms are immediate and those interests
essential, an order wrongly authorizing a Bivens claims to
proceed is “effectively unreviewable” on appeal after final
judgment.
2
Having explained why Boresky satisfies Swint’s third
criterion, I proceed to discuss the first two.
11
A decision authorizing a Bivens cause of action resolves an
important question of law separate from the claim’s merits.
Whether a plaintiff can show that a federal officer committed
a constitutional tort against him is legally distinct from whether
his claim is cognizable under Bivens. See Dongarra, 27 F.4th
at 177 (explaining that a Bivens plaintiff must clear two distinct
“hurdles” to recover damages: show an invasion of his legal
rights, and show that “Bivens lets him sue”). That’s why the
District Court could analyze the Bivens question here without
adverting once to Fourth Amendment doctrine. See Graber v.
Dales, 2019 WL 4805241, at *2–6 (E.D. Pa. Sept. 30, 2019).
And the threshold question of cognizability does not merge
with the merits question: the “fact that an issue is outcome
determinative does not mean that it is not ‘collateral’ for
purposes of the Cohen test.” Mitchell, 472 U.S. at 529 n.10.
Bivens analysis does require comparing the facts of an
alleged constitutional violation to the facts of cases in which
the Supreme Court authorized Bivens causes of action. But
other legal issues that we review on interlocutory appeal under
§ 1291 involve similar comparisons. Double jeopardy
challenges, for instance, require us to determine whether
successive prosecutions are for the same offense—yet whether
the Double Jeopardy Clause bars the suit is distinct from
whether the accused committed a crime. See id. at 528. In cases
implicating qualified immunity, similarly, whether “a
particular complaint sufficiently alleges a clearly established
violation of law cannot be decided in isolation from the facts
pleaded.” Ashcroft, 556 U.S. at 673. And qualified immunity
analysis looks to precedent for law enshrining “clearly
established” rights. Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (per curiam). Yet whether qualified immunity precludes
the suit is also distinct from whether the official’s actions were
12
unlawful. Mitchell, 472 U.S. at 528–29. With qualified
immunity as with Bivens, a plaintiff must do more than
establish the merits of his tort claim to receive the requested
relief. The majority puts the point well: though the merits
question here is whether Boresky violated Graber’s Fourth
Amendment rights, the Bivens question is “can [Graber] sue at
all?” Maj. Op. 16 n.14.
Finally, a decision authorizing a Bivens cause of action
conclusively determines whether the claim can be maintained:
but for that decision, a court should “reject” the claim.
Hernandez II, 140 S. Ct. at 743. Where no Bivens cause of
action lies, courts should “stop there.” Elhady, 18 F.4th at 884.
And once the district court rules on the issue at the summary
judgment stage, the defendant typically will take “no further
steps” to dismiss the claim on this ground. Abney v. United
States, 431 U.S. 651, 659 (1977). That’s because the
defendant’s pleadings, discovery, and summary judgment
record almost always will show whether the facts of the case
mirror those of the Supreme Court’s Bivens authorizations.
Under these circumstances, a court will not “meaningfully
reconsider” its Bivens authorization after summary judgment.
See Doe, 997 F.3d at 493.
* * *
Egbert wasn’t the death knell for Bivens, but it nearly rang
it. See Egbert, 142 S. Ct. at 1810 (Gorsuch, J., concurring in
the judgment) (Egbert leaves “barely implicit” the conclusion
that the “right answer” to whether to authorize a Bivens cause
of action “will always be no”). The Supreme Court’s deep
skepticism toward Bivens and its progeny highlights the
profound separation of powers implications of every erroneous
expansion of Bivens by federal courts. The “crucial question”
13
here is whether deferring until final judgment our review of an
order allowing a Bivens cause of action to proceed “so
imperils” the separation of powers as to justify immediate
appeal as of right. Mohawk, 558 U.S. at 108. Because I believe
it does, I would recognize such orders as “final” under § 1291
and the collateral order doctrine.3
3
The “discretionary availability” of interlocutory certification
under 28 U.S.C. § 1292(b) makes the majority “hesita[nt] to
agree” with this conclusion because that mechanism “counsels
against” expanding the class of collateral orders. Maj. Op. 16
n.14. Though that hesitation may be prudent as a general
matter, the majority does not explain why § 1292(b) counsels
against collateral recognition of orders authorizing Bivens
causes of action.
First, it doesn’t follow from an issue’s appropriateness for
§ 1292(b) certification that the issue is unsuitable for collateral
appeal under § 1291. Section 1292(b) authorizes parties to
request that district courts certify, and empowers the Courts of
Appeals to grant, interlocutory appeals involving “controlling
question[s] of law” on which there is “substantial ground for
difference of opinion,” provided the appeal may “materially
advance” the litigation’s termination. 28 U.S.C. § 1292(b). If
(collateral) orders denying a challenge to a Bivens cause of
action satisfy those criteria, so do (collateral) orders denying
qualified immunity or a double jeopardy defense. So even if
the Bivens order under review satisfied § 1292(b), that fact
wouldn’t support the majority’s holding. In any event, the
order before us likely would not satisfy § 1292(b). After
Egbert, the answer to the question whether courts can authorize
a Bivens cause of action will almost always be “no.” See
Egbert, 142 S. Ct. at 1810 (Gorsuch, J., concurring in the
14
III
Having explained why appellate jurisdiction lies, I turn to
the merits. Did the District Court err when it authorized a
Bivens cause of action against Boresky for swearing out a
warrant that lacked probable cause? It did.
We ask two questions to determine whether a Bivens cause
of action is cognizable. Does the claim arise in a new context
by differing “in a meaningful way” from previous Bivens
causes of action the Supreme Court has authorized? Ziglar, 137
judgment); cf. Maj. Op. 12 (“Bivens actions are very limited.”).
So there’s little ground for difference of opinion as to whether
authorization is permitted.
Second, the majority notes that one of § 1292(b)’s “regular
uses is to permit interlocutory appeal to decide whether a
statute permits a private cause of action.” Maj. Op. 15 n.14.
But none of the cases the majority cites to support that
statement involves a federal defendant and thus the threat to
effective governance that Bivens authorizations pose. See
Ziglar, 137 S. Ct. at 1856.
Courts have tools other than the collateral order doctrine to
facilitate interlocutory appeals of important legal issues. For
instance, 28 U.S.C. § 1292(e) and § 2072(c) authorize the
Supreme Court to prescribe rules governing interlocutory
appeals, including by designating certain classes of orders
“final” under § 1291. The existence of alternative mechanisms
for interlocutory appeal gives us reason to mark the boundary
of the class of collateral orders “stringent[ly].” Digital
Equipment, 511 U.S. at 883. But that proposition does not
forbid us from recognizing new collateral orders, and our Court
continues to recognize them notwithstanding those alternative
mechanisms.
15
S. Ct. at 1859. If so, we then ask if any “special factors
counsel[] hesitation” before extending Bivens into that new
context. Id. at 1857. If there are, the cause of action cannot
proceed. Those two inquiries often resolve into one: is there
“any reason to think that Congress might be better equipped to
create a damages remedy[?]” Egbert, 142 S. Ct. at 1803
(emphasis added). The court should not authorize the Bivens
cause of action if there is.
A
Graber’s claim against Boresky arises in a new context.
Among the circumstances “meaningful enough to make a
given context a new one” are differences in the constitutional
right at issue and the risk of disruptive intrusion by the
Judiciary into the functioning of coordinate branches. See
Ziglar, 137 S. Ct. at 1859–60. Graber’s allegations differ in at
least these two respects from Bivens.
The defendants in Bivens conducted a warrantless search
during which they “manacled” a man in front of his family,
threatened to arrest the family, booked the man at the federal
courthouse, and subjected him to a strip search. Bivens, 403
U.S. at 389. Here, Boresky has been sued for charging Graber
based on a warrant that purportedly lacked probable cause. So
Graber invokes a different constitutional provision than Mr.
Bivens did. Compare U.S. Const., amend. IV (guaranteeing
that “no Warrants shall issue, but upon probable cause”), with
id. (proscribing “unreasonable searches and seizures”). And
the Supreme Court has “repeatedly refused” to extend Bivens
“beyond the specific clauses of the specific amendments for
which a cause of action has already been implied.” Vanderklok,
868 F.3d at 200 (emphasis added). If that weren’t enough, our
intrusion into the Secret Service’s management of the
16
government’s response to security breaches occurring at
National Special Security Events would also disrupt the
workings of the political branches. These differences from
Bivens establish that Graber’s claim arises in a new context.
B
Second, multiple special factors counsel hesitation in
authorizing a new Bivens cause of action for claims like
Graber’s. We have noted that two Ziglar factors are
“particularly weighty”: the “existence of an alternative
remedial structure and separation-of-powers principles.”
Bistrian, 912 F.3d at 90. Another special factor is “whether
national security is at stake.” Id. All these factors militate
against allowing the Bivens claim to proceed against Boresky.
An alternative remedial process is available to plaintiffs
like Graber. The Secret Service is a component of the
Department of Homeland Security. See 6 U.S.C. § 381. Graber
can report alleged civil rights abuses by the Secret Service to
DHS’s Office of the Inspector General. See Hotline, Office of
the Inspector General, https://www.oig.dhs.gov/hotline.
Congress has provided for a senior official within the Office to
receive and review complaints about and to investigate alleged
civil rights abuses. 5. U.S.C. App. 3 § 8I(f)(1)–(2). That
procedure need not involve complainant participation or the
right to judicial review. Egbert, 142 S. Ct. at 1806. What
matters is that Congress or the Executive has created a remedial
process it deems sufficient to secure deterrence of wrongful
conduct. Id. at 1807. We cannot “second-guess that calibration
by superimposing a Bivens remedy.” Id. Doing so would raise
obvious separation of powers concerns.
17
Authorizing a Bivens cause of action here also would
require us to interfere with sensitive Executive-branch
functions. See Ziglar, 137 S. Ct. at 1861; Mack v. Yost, 968
F.3d 311, 323 (3d Cir. 2020) (declining to authorize a Bivens
cause of action because “judicial intervention” in
“administrative decisions would improperly encroach upon the
executive’s domain”). Those functions—coordinating the
government’s security plan for keeping high-level officers and
candidates safe at a National Special Security Event—involve
national security. Whether to create a “new substantive legal
liability” for Secret Service agents participating in a
coordinated response to security breaches is the sort of choice
Congress, not the courts, should make. Ziglar, 137 S. Ct. at
1857 (cleaned up). Our failure to heed that counsel would
embroil us in policy judgments we are ill-suited for. See
Egbert, 142 S. Ct. at 1804–05. And we cannot “predict the
‘systemwide’ consequences” that would follow if we were to
expand Bivens to allow suits like this one against Secret
Service agents. See id. at 1803–04. A “Bivens cause of action
may not lie where . . . national security is at issue.” Id. at 1805.
* * *
The District Court’s decision to authorize Graber’s Bivens
cause of action was contrary to a spate of recent Supreme Court
decisions. I would vacate its order and remand with
instructions to dismiss Graber’s amended complaint against
Boresky.
18