Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`May 7, 2024
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`KHALFAN KHAMIS MOHAMED,
`
` Plaintiff - Appellee,
`
`v.
`
`JONES; HUDDLESTON; OSAGIE;
`BRUSH; ESPINOZA; MILLER;
`MURTON; ARMIJO,
`
` Defendants - Appellants.
`_________________________________
`
`
`
`
`
`No. 22-1453
`
`Appeal from the United States District Court
`for the District of Colorado
`(D.C. No. 1:20-CV-02516-RBJ-MDB)
`_________________________________
`
`Lowell V. Sturgill, Jr., Attorney, Civil Division (Brian M. Boynton, Acting Assistant
`Attorney General; Cole Finegan, U.S. Attorney; and Barbara L. Herwig, Attorney, Civil
`Division, with him on the briefs) Department of Justice, Washington, D.C., for the
`Defendants - Appellants.
`
`Khalfan Khamis Mohamed, filed a brief pro se.
`
`Madeline Brooke Dobkin, Student Intern Attorney (Matthew Cushing, Counsel of
`Record; Jenna King and Reagan McDonnell, Student Intern Attorneys, with her on the
`brief) University of Colorado Law School Appellate Advocacy Practicum, Boulder,
`Colorado, for Plaintiff - Appellee.
`_________________________________
`
`
`
`
`
`
`
`
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`

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`Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 2
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`Before TYMKOVICH, MATHESON, and BACHARACH, Circuit Judges.
`_________________________________
`
`MATHESON, Circuit Judge.
`_________________________________
`
`Federal Bureau of Prisons (“BOP”) officials beat prisoner Khalfan Khamis
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`Mohamed while other officials watched. Mr. Mohamed brought Eighth Amendment
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`excessive force and failure to intervene claims against several BOP officials,
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`contending that Bivens v. Six Unknown Named Agents of Federal Bureau of
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`Narcotics, 403 U.S. 388 (1971), provided him a cause of action. The BOP
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`defendants moved to dismiss, arguing Bivens does not extend to Mr. Mohamed’s
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`claims. The district court denied their motion.
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`The BOP defendants seek interlocutory review. We dismiss for lack of
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`jurisdiction.
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`I. BACKGROUND
`
`A. Factual Background1
`
`Mr. Mohamed, incarcerated at the United States Administrative Maximum
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`Penitentiary in Florence, Colorado, went on a hunger strike. BOP officials
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`temporarily removed him from his cell. As they escorted him back, Officers David
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`Brush, Joseph Miller, and Cody Espinoza beat him. Lieutenants Joseph Armijo and
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`Dennis Murton and Physician’s Assistant (“PA”) Anthony Osagie watched and did
`
`
`1 Because this appeal is from a motion to dismiss under Federal Rule of Civil
`Procedure 12(b)(6), we take the facts alleged in the complaint as true. Ashcroft v. Iqbal,
`556 U.S. 662, 678 (2009); Citizen Ctr. v. Gessler, 770 F.3d 900, 916 (10th Cir. 2014).
`
`2
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`not intervene as Mr. Mohamed cried out for help and limped in pain. Lieutenant
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`Murton also instructed the others “on how to beat [Mr. Mohamed].” App., Vol. II
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`at 167.
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`Officer Brush then removed almost everything from Mr. Mohamed’s cell,
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`including thousands of pages of documents Mr. Mohamed had written over 20 years,
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`seven books, a “few shorter works,” legal and religious materials, cosmetic items,
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`writing and postage materials, toiletries, and his drinking water cup. Id. at 170-71.
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`Mr. Mohamed later recovered some of these items. He experienced severe
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`depression and post-traumatic stress disorder from the loss of his work product.
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`After the beating, Nurse Kelly Jones performed a medical assessment of
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`Mr. Mohamed. Although Mr. Mohamed had visible injuries and complained of
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`broken bones and severe pain, Nurse Jones did not provide any treatment. He also
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`refused multiple times to examine Mr. Mohamed for symptoms related to the hunger
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`strike. Nurse Roger Huddleston eventually performed a hunger-strike assessment but
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`refused several times to treat Mr. Mohamed’s beating-related injuries.
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`PA Osagie told Mr. Mohamed to end the hunger strike and not tell other staff
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`about his pain if he wanted to receive treatment for his beating-related injuries.
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`PA Osagie also forced Mr. Mohamed to eat and to endure painful leg cuffs.
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`Mr. Mohamed eventually received some treatment for his physical injuries,
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`including a broken ankle, but he continues to experience pain and other physical
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`symptoms from the beating.
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`3
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`B. Procedural Background
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` Mr. Mohamed’s Claims
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`Mr. Mohamed sued Officers Brush, Miller, and Espinoza; Lieutenants Armijo
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`and Murton; PA Osagie; and Nurses Jones and Huddleston in their individual and
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`official capacities. Relying on Bivens, he brought Eighth Amendment excessive
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`force claims against Officers Brush, Miller, and Espinoza; Eighth Amendment failure
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`to intervene claims against Lieutenants Armijo and Murton and PA Osagie; a First
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`Amendment claim against Officer Brush for confiscating his property; and Eighth
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`Amendment deliberate indifference to medical needs claims against PA Osagie and
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`Nurses Jones and Huddleston. He also brought five claims against the United States
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`under the Federal Tort Claims Act (“FTCA”).
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` Motions to Dismiss
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`The BOP defendants and the United States filed motions to dismiss. As
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`relevant on appeal, the BOP defendants argued the excessive force and failure to
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`intervene claims should be dismissed for lack of a Bivens remedy and that PA Osagie
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`was entitled to qualified immunity on the failure to intervene claim.2 Officers Brush,
`
`
`2 The Defendants sought dismissal of the First Amendment, deliberate
`indifference, and two of the FTCA claims on various grounds. The district court
`dismissed the First Amendment claim and the two FTCA claims, but it denied
`dismissal of the deliberate indifference claims, finding Mr. Mohamed stated a claim
`and the BOP defendants lacked qualified immunity. The United States did not seek
`dismissal of the other three FTCA claims, all for battery.
`
`4
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`Miller, and Espinoza and Lieutenants Armijo and Murton did not argue they were
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`entitled to qualified immunity for the excessive force or failure to intervene claims.
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`The motions were referred to a magistrate judge, who recommended the
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`excessive force and failure to intervene claims not be dismissed because Bivens
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`provided a remedy and PA Osagie was not eligible for qualified immunity on the
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`failure to intervene claim. The BOP defendants timely objected. The district court
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`adopted the magistrate judge’s report and recommendation in its entirety.
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` Motion for Reconsideration
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`The BOP defendants then moved to reconsider under Federal Rule of Civil
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`Procedure 59(e), arguing intervening Supreme Court precedent, Egbert v. Boule,
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`142 S. Ct. 1793 (2022), foreclosed a Bivens remedy for excessive force and failure to
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`intervene claims. They also alerted the district court to Silva v. United States,
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`45 F.4th 1134 (10th Cir. 2022), in which we held that no Bivens remedy is available
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`for Eighth Amendment excessive force claims when the BOP’s Administrative
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`Remedy Program provides an alternative remedial scheme. The district court denied
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`the motion.
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` Appeal
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`The BOP defendants appealed, arguing only that the excessive force and
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`failure to intervene claims should be dismissed for lack of a Bivens remedy. Despite
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`raising a potential qualified immunity challenge to the failure to intervene claim
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`against PA Osagie in the docketing statement, the BOP defendants did not make a
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`qualified immunity argument in their opening brief.3 They argue we have
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`interlocutory appellate jurisdiction under the collateral order doctrine to consider the
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`district court’s Bivens extension.
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`C. Legal Background
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`We must decide whether the district court’s order extending Bivens to
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`Mr. Mohamed’s Eighth Amendment excessive force and failure to intervene claims
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`qualifies for interlocutory review under the collateral order doctrine. In the
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`following legal background discussion, we first provide an overview of the collateral
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`order and Bivens doctrines and show the Supreme Court has often and increasingly
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`refused to expand either. Second, we turn to the few Supreme Court decisions that
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`resolved Bivens or related issues on interlocutory appeal. None of them was an
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`interlocutory appeal where the only issue was whether a Bivens claim exists. Third,
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`we review the two circuit court cases that have addressed whether Bivens extension
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`orders may be appealed under the collateral order doctrine. Both said no.
`
` The Collateral Order and Bivens Doctrines
`
`a. Collateral order doctrine
`
`i. Final judgment rule – 28 U.S.C. § 1291
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`Federal appellate jurisdiction is generally limited to appeals from “final”
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`district court orders, 28 U.S.C. § 1291, and orders certified for interlocutory appeal,
`
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`3 The BOP defendants also abandoned their qualified immunity arguments on
`the deliberate indifference claims.
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`6
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`id. § 1292(b). Section 1291 provides that “[t]he courts of appeals . . . shall have
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`jurisdiction of appeals from all final decisions of the district courts of the United
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`States.” This final judgment rule “preserv[es] respect for trial judges, reduc[es] the
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`ability of litigants to harass each other, and enhanc[es] the efficient administration of
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`justice.” United States v. Martinez-Haro, 645 F.3d 1228, 1231 (10th Cir. 2011)
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`(citing Flanagan v. United States, 465 U.S. 259, 263-64 (1984)).
`
`ii. Cohen rationale and test
`
`In 1949, the Supreme Court recognized the collateral order doctrine in Cohen
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`v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). The collateral order
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`doctrine allows for immediate appeal of some non-final orders under § 1291. See
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`Will v. Hallock, 546 U.S. 345, 349 (2006); Osage Tribal Council ex rel. Osage Tribe
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`of Indians v. U.S. Dep’t of Lab., 187 F.3d 1174, 1179 (10th Cir. 1999). The doctrine
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`gives § 1291’s finality requirement a “practical rather than a technical construction.”
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`Cohen, 337 U.S. at 546. Appealable collateral orders “are said to be ‘too important
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`to be denied review and too independent of the cause itself’ to justify waiting out the
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`rest of the adjudication.” Los Lobos Renewable Power, LLC v. Americulture, Inc.,
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`885 F.3d 659, 664 (10th Cir. 2018) (quoting Cohen, 337 U.S. at 546).
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`For orders to be appealed before final judgment, they must (1) be
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`“conclusive”; (2) “resolve important questions separate from the merits”; and (3) be
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`“effectively unreviewable on appeal from . . . final judgment.” Mohawk Indus., Inc.
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`v. Carpenter, 558 U.S. 100, 106 (2009) (quotations omitted); see Cohen, 337 U.S.
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`at 545-47. These are referred to as the “Cohen factors.” See, e.g., Osage Tribal
`7
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`Council, 187 F.3d at 1180. For the third factor, “the decisive consideration is
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`whether delaying review until the entry of final judgment ‘would imperil a
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`substantial public interest’ or ‘some particular value of a high order.’” Mohawk,
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`558 U.S. at 107 (quoting Will, 546 U.S. at 352-53).
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`In applying the Cohen test, courts consider “the entire category to which a
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`claim belongs” instead of “engag[ing] in an individualized jurisdictional inquiry” that
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`would ask whether “the litigation at hand might be speeded, or a particular injustice
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`averted.” Id. (alterations and quotations omitted).
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`iii. Cohen’s limited scope
`
`“[T]he Supreme Court has issued increasingly emphatic instructions that the
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`class of cases capable of satisfying this ‘stringent’ test should be understood as
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`‘small,’ ‘modest,’ and ‘narrow.’” United States v. Wampler, 624 F.3d 1330, 1334
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`(10th Cir. 2010) (quoting Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,
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`868 (1994); Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995); Will, 546
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`U.S. at 350; Mohawk, 558 U.S. at 113).
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`The types of orders that fall under the collateral order doctrine “require only
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`two hands to count.” Belya v. Kapral, 45 F.4th 621, 629 n.5 (2d Cir. 2022), cert.
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`denied sub nom. Synod of Bishops of the Russian Orthodox Church Outside of Russ.
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`v. Belya, 143 S. Ct. 2609 (2023). The first and larger category includes
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`“constitutionally based immunities,” Los Lobos Renewable Power, 885 F.3d at 664—
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`orders denying qualified, absolute, tribal, Eleventh Amendment, or another
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`immunity.4 The second category includes mostly orders that would be moot
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`following final judgment.5 The Supreme Court has declined to extend collateral
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`order treatment to a wide variety of other orders.6
`
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`4 Will, 546 U.S. at 350 (collecting cases); Osage Tribal Council, 187 F.3d
`at 1179 (denials of tribal sovereign immunity); Osborn v. Haley, 549 U.S. 225, 238
`(2007) (denials of immunity under the Westfall Act); P.R. Aqueduct & Sewer Auth. v.
`Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993) (denials of Eleventh Amendment
`immunity); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (denials of qualified
`immunity, to the extent they turn on an issue of law); Nixon v. Fitzgerald, 457 U.S.
`731, 742 (1982) (denials of absolute Presidential immunity); Helstoski v. Meanor,
`442 U.S. 500, 508 (1979) (denials of Speech or Debate Clause immunity in a
`criminal case); Abney v. United States, 431 U.S. 651, 662 (1977) (adverse double
`jeopardy orders); Nixon, 457 U.S. at 742 (describing Abney as addressing a “claim of
`immunity under [the] Double Jeopardy Clause”).
`
`5 Shoop v. Twyford, 142 S. Ct. 2037, 2043 n.1 (2022) (prisoner-transport
`orders under the All Writs Act); Sell v. United States, 539 U.S. 166, 177 (2003)
`(orders permitting the government to force a defendant to take antipsychotic drugs to
`render him competent to stand trial); Moses H. Cone Mem’l Hosp. v. Mercury Constr.
`Corp., 460 U.S. 1, 10-12 (1983) (stay orders when their sole purpose and effect is to
`surrender jurisdiction of federal suit to state court); Quackenbush v. Allstate Ins. Co.,
`517 U.S. 706, 715 (1996) (same); 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); Swift &
`Co. Packers v. Compania Colombiana del Caribe, S.A., 339 U.S. 684, 688-89 (1950)
`(orders imposing an attachment of a vessel in admiralty).
`
`6 Microsoft Corp. v. Baker, 582 U.S. 23, 26 (2017) (stipulated-to voluntary
`dismissals with prejudice of orders denying class certification); Mohawk, 558 U.S.
`at 103 (orders to disclose confidential materials based on waiver of attorney-client
`privilege); Will, 546 U.S. at 347 (refusals to apply FTCA judgment bar);
`Cunningham v. Hamilton County, 527 U.S. 198, 200 (1999) (attorney sanctions under
`Federal Rule of Civil Procedure 37(a)(4)); Johnson v. Jones, 515 U.S. 304, 307
`(1995) (denials of qualified immunity at summary judgment based on fact-related
`disputes); Swint, 514 U.S. at 38 (denials of motions for summary judgment on
`non-qualified-immunity issue without pendent jurisdiction); Midland Asphalt Corp.
`v. United States, 489 U.S. 794, 799 (1989) (denials of motions to dismiss an
`indictment for violation of Federal Rule of Criminal Procedure 6(e)); Lauro Lines
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`b. Bivens doctrine
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`In 42 U.S.C. § 1983, Congress created a damages action for deprivation of
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`federal rights by officials acting under color of state law.7 But “Congress did not
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`provide a specific damages remedy for plaintiffs whose constitutional rights were
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`violated by agents of the Federal Government.” Ziglar v. Abbasi, 582 U.S. 120, 130
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`(2017). In 1971, the Supreme Court in Bivens “recognized for the first time an
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`implied private action for damages against federal officers alleged to have violated a
`
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`s.r.l. v. Chasser, 490 U.S. 495, 496 (1989) (denials of motions to dismiss damages
`actions based on contractual forum-selection clauses); Van Cauwenberghe v. Biard,
`486 U.S. 517, 527 (1988) (denials of immunity from civil process); id. (denials of
`forum non conveniens dismissal); Gulfstream Aerospace Corp. v. Mayacamas Corp.,
`485 U.S. 271, 278 (1988) (denials of Colorado River motions); Stringfellow v.
`Concerned Neighbors in Action, 480 U.S. 370, 372, 377 (1987) (orders granting
`permissive intervention but denying intervention as of right); Richardson-Merrell,
`Inc. v. Koller, 472 U.S. 424, 426 (1985) (orders disqualifying counsel in a civil case);
`Flanagan, 465 U.S. at 260 (orders disqualifying defense counsel in a criminal
`prosecution); United States v. Hollywood Motor Car Co., 458 U.S. 263, 264 (1982)
`(denials of motion to dismiss indictment for prosecutorial vindictiveness); Firestone
`Tire & Rubber Co. v. Risjord, 449 U.S. 368, 369-70 (1981) (denials of motions to
`disqualify counsel for the opposing party in a civil case); Coopers & Lybrand v.
`Livesay, 437 U.S. 463, 469 (1978) (orders denying class certification), superseded by
`F.R.C.P. 23(f); United States v. MacDonald, 435 U.S. 850, 861 (1978) (denials of
`speedy trial motions).
`
`7 Section 1983 provides:
`Every person who, under color of any statute, ordinance,
`regulation, custom, or usage, of any State or Territory or the
`District of Columbia, subjects, or causes to be subjected, any
`citizen of the United States or other person within the
`jurisdiction thereof to the deprivation of any rights,
`privileges, or immunities secured by the Constitution and
`laws, shall be liable to the party injured in an action at law,
`suit in equity, or other proper proceeding for redress . . . .
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`10
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`citizen’s constitutional rights.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)
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`(quotations omitted). It held that officials acting under color of federal law may be
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`liable for money damages for using excessive force in conducting a warrantless
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`search and arrest in violation of the Fourth Amendment. Bivens, 403 U.S. at 397;
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`Abbasi, 582 U.S. at 130-31.
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`The Supreme Court has since “recognized . . . an implied cause of action in
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`[only] two cases involving other constitutional violations,” both in the decade after
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`Bivens. Abbasi, 582 U.S. at 131. In Davis v. Passman, 442 U.S. 228 (1979), the
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`Court allowed a Bivens claim against a Member of Congress for a congressional
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`staffer’s Fifth Amendment Due Process gender discrimination claim. In Carlson v.
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`Green, 446 U.S. 14 (1980), the Court said a prisoner could sue federal prison
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`officials under Bivens for inadequate medical care in violation of the Eighth
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`Amendment. After these two cases, “the arguments for recognizing implied causes
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`of action for damages began to lose their force.” Abbasi, 582 U.S. at 132. Indeed,
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`the Supreme Court has not done so since then.
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`“[E]xpanding the Bivens remedy is now a disfavored judicial activity.”
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`Id. at 135 (quotations omitted). “[A]lmost any difference between the case at hand
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`and the three [Bivens] precedents can justify rejecting a cause of action.” Logsdon v.
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`U.S. Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024), petition for rehr’g denied
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`(Apr. 5, 2024). A court may also deny a Bivens remedy when “the Government
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`already has provided alternative remedies that protect plaintiffs.” Silva, 45 F.4th
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`at 1141 (quoting Egbert, 142 S. Ct. at 1804). We recently declined to extend Bivens
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`to an Eighth Amendment excessive force claim in Silva, id., and to a Fourth
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`Amendment excessive force claim against Deputy U.S. Marshals in Logsdon,
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`91 F.4th at 1355-56.
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` Relevant Supreme Court Cases
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`Several Supreme Court cases have addressed Bivens extension orders or
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`related issues on interlocutory appeal, but none have allowed interlocutory appellate
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`review for a Bivens-only appeal.
`
`a. Hartman v. Moore, 547 U.S. 250 (2006)
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`In Hartman, the plaintiff brought “a Bivens action against criminal
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`investigators for inducing prosecution in retaliation for speech.” 547 U.S. at 252.
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`The defendants, federal officials sued in their individual capacities, moved for
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`summary judgment based on qualified immunity “because the underlying criminal
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`charges were supported by probable cause.” Id. at 255. The district court denied the
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`motion, and the D.C. Circuit affirmed on interlocutory appeal. Id.
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`The defendants petitioned for certiorari, arguing that (1) the complaint had to
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`allege an absence of probable cause to state a Bivens claim and (2) they were entitled
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`to qualified immunity. See Pet. for Certiorari at *I, Hartman, 547 U.S. 250
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`(No. 04-1495), 2005 WL 1123566. The parties disputed whether the Supreme Court
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`had interlocutory jurisdiction to consider the elements of a Bivens claim. Compare
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`Br. for Resp. at *36-39, Hartman, 547 U.S. 250 (No. 04-1495), 2005 WL 2653949,
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`with Reply Br. for Pets. at *14-15, Hartman, 547 U.S. 250 (No. 04-1495), 2005 WL
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`3118783. The Court had previously recognized that the collateral order doctrine
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`permits interlocutory appeal of denials of qualified immunity, see Mitchell v.
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`Forsyth, 472 U.S. 511, 530 (1985), but it had not discussed jurisdiction over Bivens
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`issues on interlocutory appeal.
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`The Court resolved the case without reaching qualified immunity, holding that
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`“want of probable cause must be alleged and proven” to “state[] an actionable
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`violation” under the Bivens theory presented. Hartman, 547 U.S. at 252. It justified
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`resolving only the Bivens issue because it “d[id] not go beyond a definition of an
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`element of the tort, [which was] directly implicated by the defense of qualified
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`immunity and properly before [the Court] on interlocutory appeal.” Id. at 257 n.5.
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`b. Wilkie v. Robbins, 551 U.S. 537 (2007)
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`In Wilkie, the plaintiff brought a Bivens claim for violations of his Fifth
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`Amendment rights. 551 U.S. at 548. The federal defendants moved for dismissal
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`and summary judgment based on qualified immunity, and the district court denied
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`both motions. Id. On interlocutory appeal, this court held we had jurisdiction under
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`the collateral order doctrine to consider the summary judgment denial because it was
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`premised on a denial of qualified immunity, and we affirmed. Robbins v. Wilkie,
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`433 F.3d 755, 761-64 (10th Cir. 2006), rev’d and remanded, 551 U.S. 537, vacated,
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`497 F.3d 1122 (10th Cir. 2007) (mem.).
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`The Supreme Court granted certiorari, held it had interlocutory jurisdiction,
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`and reversed. It held that Bivens did not give the plaintiff a cause of action and
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`“there [wa]s no reason to enquire further into . . . the asserted defense of qualified
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`immunity.” 551 U.S. at 567. The Court justified addressing the Bivens issue on
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`interlocutory review based on Hartman’s “reasoning”—that “the definition of an
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`element of the asserted cause of action was ‘directly implicated by the defense of
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`qualified immunity and properly before [it] on interlocutory appeal’”—“applie[d] to
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`the recognition of the entire cause of action.” Id. at 549 n.4 (quoting Hartman,
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`547 U.S. at 257 n.5).8
`
`c. Will v. Hallock, 546 U.S. 345 (2006)
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`Although Will did not concern a Bivens extension order, its discussion of
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`whether a district court’s order refusing to apply the FTCA’s judgment bar was
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`appealable under the collateral order doctrine is relevant here. The plaintiff in Will
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`brought an FTCA claim against the United States and, in a separate action, a Bivens
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`claim against U.S. Customs Service agents for damage to her property from a search.
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`546 U.S. at 347-48. The district court dismissed the first suit. In the second
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`proceeding, the agents sought to enforce the FTCA’s judgment bar, which precludes
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`“any action by the [plaintiff], by reason of the same subject matter, against the
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`employee of the government whose act or omission gave rise to the claim” if a court
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`enters “judgment in an action under [the FTCA].” 28 U.S.C. § 2676; see Will,
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`546 U.S. at 348. The district court denied the motion. Will, 546 U.S. at 348-49. The
`
`
`8 The Court commented on these decisions in Iqbal, where it similarly looked to
`Hartman to hold that “the sufficiency of respondent’s pleadings [wa]s both ‘inextricably
`intertwined with’” “and ‘directly implicated by’ the qualified-immunity defense.”
`556 U.S. at 673 (first quoting Swint, 514 U.S. at 51, then quoting Hartman, 551 U.S.
`at 257 n.5). The Iqbal Court assumed without deciding that the respondent’s First
`Amendment claim was actionable as a Bivens claim and did not discuss Bivens in its
`jurisdictional analysis. Id. at 675.
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`Second Circuit “affirmed, after first finding jurisdiction under the collateral order
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`doctrine.” Id. at 349.
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`The Supreme Court vacated the Second Circuit’s decision for lack of appellate
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`jurisdiction, holding that orders “refus[ing] to apply the [FTCA’s] judgment bar” are
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`not appealable under the collateral order doctrine. Id. at 347, 349. The Court relied
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`on the third Cohen factor—whether the order would be “effectively unreviewable”
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`absent immediate appeal. Id. at 351; see id. at 351-54. It said no, explaining that
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`“effectively unreviewable” cannot include “any order denying a claim of right to
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`prevail without trial” because “this generalization is too easy to be sound and, if
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`accepted, would leave . . . § 1291 in tatters.” Id. at 351. The Court instead clarified
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`that “only some orders denying an asserted right to avoid the burdens of trial” are
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`“effectively” unreviewable. Id. (quotations omitted). It noted it had previously
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`allowed collateral order review when “some particular value of a high order was
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`marshaled in support of the interest in avoiding trial: honoring the separation of
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`powers, preserving the efficiency of government and the initiative of its officials,
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`respecting a State’s dignitary interest, and mitigating the government’s advantage
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`over the individual.” Id. at 352-53.
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`The Court then reasoned that the FTCA’s judgment bar did not implicate any
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`unique public interest and was “essential[ly] procedural,” id. at 354, with “no . . .
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`greater importance than the typical defense of claim preclusion,” id. at 355. It also
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`anticipated in dicta the issue raised here, suggesting that an interlocutory appeal of a
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`Bivens extension order would not fit the Cohen test:
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`It is not the preservation of initiative but the avoidance of
`litigation for its own sake that supports the judgment bar, and
`if simply abbreviating litigation troublesome to
`Government employees were important enough for Cohen
`treatment, collateral order appeal would be a matter of
`right whenever . . . a federal officer lost [a motion to
`dismiss] 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,
`209 U.S. 123 (1908). In effect, 28 U.S.C. § 1291 would fade
`out whenever the Government or an official lost an early
`round that could have stopped the fight.
`
`Id. at 353-54 (emphasis added) (the “Will dicta”).
`
` Other Circuit Courts
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`Two other circuits have considered the issue we face here—whether district
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`court orders extending Bivens are immediately appealable under the collateral order
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`doctrine when a defendant fails to raise or abandons qualified immunity as a basis for
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`appellate jurisdiction. Both held the collateral order doctrine does not extend to
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`Bivens-only appeals. Himmelreich v. Fed. BOP, 5 F.4th 653 (6th Cir. 2021); Graber
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`v. Doe II, 59 F.4th 603 (3d Cir. 2023), cert denied sub nom. Boresky v. Graber,
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`144 S. Ct. 681 (2024) (mem.).9
`
`a. Himmelreich v. Federal BOP, 5 F.4th 653 (6th Cir. 2021)
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`Himmelreich was an interlocutory appeal from a Bivens extension order where
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`the federal defendant failed to timely raise qualified immunity. 5 F.4th at 659. The
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`Sixth Circuit held that “[w]here a defendant has not appealed the denial of qualified
`
`
`9 The Ninth and Eleventh Circuits are currently considering the same issue.
`Garraway v. Ciufo, No. 23-15482 (9th Cir.); Fleming v. FCI Tallahassee Warden,
`No. 23-10252 (11th Cir.).
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`immunity, the appellate court does not have jurisdiction under the collateral order
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`doctrine to address an underlying claim.” Id. at 661. It first distinguished Hartman
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`and Wilkie because in those cases, “the appellate courts already had jurisdiction over
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`the appeals challenging the district courts’ denial of qualified immunity” and the
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`Bivens issue was “directly implicated by [the] . . . denial of qualified immunity.”
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`Id. at 660.
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`The court then analyzed the Cohen factors. It assumed the first two factors
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`were met and concluded the third—“effectively unreviewable”—was not.
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`Id. at 661-62. It reasoned that the possibility of reversing a Bivens extension on
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`interlocutory appeal “does not grant defendants an entitlement not to stand trial.”
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`Id. at 662. It characterized Will as holding that the “order allowing the Bivens claim
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`to proceed [without enforcing the FTCA’s judgment bar] was not effectively
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`unreviewable because the government did not have an absolute right to avoid trial.”
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`Id. at 663. It quoted the Will dicta and concluded that “Will does not recognize an
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`absolute right for [the defendant] to avoid trial.” Id.
`
`b. Graber v. Doe II, 59 F.4th 603 (3d Cir. 2023)
`
`In Graber, the Third Circuit held it could not review a Bivens extension under
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`the collateral order doctrine when the federal defendant had waived his challenge to
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`the district court’s Rule 12(b)(6) qualified immunity ruling. 59 F.4th at 607-08.
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`The court determined that a Bivens extension order did not meet the third
`
`Cohen factor. Id. at 608. First, it reasoned that Bivens “is not an immunity
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`doctrine,” id. at 609, and although the “effectively unreviewable” standard is not
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`Appellate Case: 22-1453 Document: 010111044847 Date Filed: 05/07/2024 Page: 18
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`limited to immunity doctrines, it encompasses only rights that would be “irretrievably
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`lost” or “moot following a final judgment,” id. at 608 n.9 (quotations omitted).
`
`Because Bivens claims do “not become moot following a final judgment,” they are
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`not “effectively unreviewable.” Id. Second, the court found the Will dicta “highly
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`persuasive.” Id. at 609 & n.10 (quotations omitted). Third, “[t]he availability of”
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`certified appeals under § 1292(b) “counsel[ed] against” allowing the appeal under
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`§ 1291. Id. at 610 n.14.10
`
`The Supreme Court denied certiorari. Boresky v. Graber, 144 S. Ct. 681
`
`(2024) (mem.).
`
`II. DISCUSSION
`
`The BOP defendants bear the burden of establishing our appellate jurisdiction.
`
`Cummings v. Dean, 913 F.3d 1227, 1235 (10th Cir. 2019). They must convince us to
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`create an exception to § 1291’s final judgment rule for all district court orders
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`extending a Bivens remedy—something that neither the Supreme Court nor any
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`circuit court has done before. Although the BOP defendants’ arguments are not
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`meritless, they have not met their burden. We conclude they have not shown that
`
`
`10 Judge Hardiman dissented. He argued that “immunity is neither sufficient
`nor necessary” to satisfy the third Cohen factor. 59 F.4th at 611 (Hardiman, J.,
`dissenting). He characterized the Will dicta as “drive-by dictum” and contended that
`Bivens extension orders are more important