Page 3
Ninth Circuit:
Order Recognizing Constitutional Claim Is Not Appealable
Majority Says Court Lacks Jurisdiction Over Interlocutory Appeal of District Court Order Allowing Bivens Cause of Action for Violation of Eighth Amendment; Bumatay Dissents
By Kimber Cooley, Staff Writer
District Court decisions extending civil liability for constitutional violations where no statutory cause of action exists are not immediately appealable under the collateral order doctrine, the Ninth U.S. Circuit Court of Appeals held yesterday.
The opinion distinguishes orders denying qualified immunity for the government actors accused of violating the Constitution—which are subject to interlocutory appeal under governing precedent—from orders denying judgment on the pleadings and finding a cause of action for the constitutional violation, which the court said may only be reviewed following final judgment.
An attack on a prison inmate by his cellmate—after officials were informed of prior physical aggression by the attacker—gave rise to the dispute. Inmate Mitchell Garraway sued Jacqueline Ciufo, K. Miller and J. Zaragoza—employed at the Atwater federal prison—for allegedly violating the Eight Amendment’s prohibition on cruel and unusual punishment by acting with deliberate indifference in failing to protect him.
Supreme Court Decisions
The case is set against the backdrop of three U.S. Supreme Court decisions.
It was established in the 1971 case of Bivens v. Six Unknown Federal Narcotics Agents that a federal cause of action may lie for violations of the Fourth Amendment’s protections against unreasonable searches and seizure. Following the Bivens case, courts have found causes of action for other constitutional violations.
In the 1994 case of Farmer v. Brennan, the high court approved extending Bivens liability to the Eighth Amendment context by holding that a prison official may be held liable under the Eight Amendment for failing to act to protect an inmate from known physical threats when acting with deliberate indifference.
The Supreme Court cautioned against the ever-expanding nature of Bivens jurisprudence in its 2022 decision in Egbert v. Boule decision. In an opinion by Justice Clarence Thomas, the court held that no Bivens cause of action exists for Fourth Amendment excessive force or First Amendment retaliation claims.
Thomas explained that a court must first determine whether a case presents a “new Bivens context” and then ask whether there is any reason to think that Congress might be better equipped to create a damages remedy before allowing a new category of Bivens claims.
In setting out the framework of the established Bivens claims, the Egbert court did not mention the Farmer decision or the category of claims it recognized.
Bivens Remedy
The defendants in the present case moved for judgment on the pleadings, arguing that no Bivens remedy is available for a failure to protect an inmate from a risk of prisoner violence. On Feb. 21, 2020, District Court Judge Dale A. Drodz of the Eastern District of California denied the motion, citing Farmer.
On Aug. 24, 2022, the case was reassigned to then-District Court Judge Ana de Alba (now a Ninth U.S. Circuit judge) and the defendants filed a motion to reconsider the earlier denial, pointing to the freshly decided Egbert decision. De Alba denied the motion on Feb. 1, 2023, determining that Farmer remained intact after Egbert.
On March 31, 2023, the defendants filed a notice of interlocutory appeal of the order denying their motion.
Senior Circuit Judge Richard C. Tallman authored the opinion dismissing the appeal for lack of jurisdiction, saying that “[t]oday 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.”
Circuit Judge Danielle J. Forrest joined in the opinion. Circuit Judge Patrick J. Bumatay dissented.
Substantial Public Interest
Tallman noted that U.S. Courts of Appeal generally have jurisdiction over appeals from final decisions of the district courts, but only over a narrow class of collateral rulings. The determining factor for deciding whether a court may exercise jurisdiction over a non-final ruling is whether delaying review would put a substantial public interest in danger.
The defendants assert that an order expanding Bivens implicates the significant public interests of separation of powers and protecting the effectiveness of the Executive Branch.
Tallman acknowledged that “consideration of separation-of-powers principles are ‘central’ to the analysis required of courts considering whether to fashion a Bivens remedy” but said that the question is “whether delaying review of a district court order recognizing a Bivens remedy” would so endanger those interests as to “justify immediate appeal of that entire class of orders.”
Turning to the separation-of-powers concern, the judge wrote:
“[I]mproper 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 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.”
He continued:
“Defendants-Appellants—and indeed, the dissent—fail to identify what immediate harm would be inflicted upon the separation of powers that cannot be effectively reviewed and remedied upon final judgment….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.”
Executive Branch Efficiency
Tallman noted that the defendants’ argument that recognizing a Bivens remedy threatens the efficiency of the Executive Branch “presents a more tangible harm, which, at first blush, has an immediacy to it.” However, he reasoned:
“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.”
The jurist acknowledged that courts have considered the issue on appeals from orders denying qualified immunity, but noted that the defendants have yet to formally assert qualified immunity in the lower court. He remarked:
“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.”
Tallman opined that a contrary holding might lead to absurd results, writing:
“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.”
Bumatay’s View
Bumatay wrote:
“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….The answer is ‘yes.’ ”
He cited the Egbert decision and said:
“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.’….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.”
The judge reasoned:
“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….[O]n 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.”
The case is Garraway v. Cuifo, 23-15482.
Copyright 2024, Metropolitan News Company