59 F.4th 603
3rd Cir.2023Background
- 2016 Democratic National Convention was designated an NSSE; Secret Service coordinated restricted-area security; an eight-foot fence enclosed the Restricted Area.
- Jeremy Graber joined protests near the Restricted Area and was arrested with six others after officers found people inside the fenced perimeter; Philadelphia PD did not prepare arrest paperwork for Graber.
- Secret Service agents (including Special Agent Michael Boresky) were told arrestees would be charged under 18 U.S.C. § 1752; Boresky signed an affidavit identifying Graber though he was not present at the arrest, did not draft the affidavit, and did not review video evidence before swearing it.
- Graber was held overnight; after defense counsel provided news-video clips showing Graber never passed through the fence, charges were dismissed and Graber sued Boresky under Bivens for alleged Fourth Amendment violations (false arrest, unlawful detention, false charges).
- The District Court denied Boresky’s motion to dismiss, applying Ziglar’s two-step Bivens framework and permitting the Bivens claim; later the court denied Boresky’s summary-judgment qualified-immunity motion without prejudice to allow discovery.
- Boresky appealed only the District Court’s Bivens ruling (waiving challenge to the qualified-immunity discovery ruling). The Third Circuit majority dismissed the appeal for lack of jurisdiction under the collateral-order doctrine; Judge Hardiman dissented, arguing the appeal should be allowed and that Bivens should not be extended here.
Issues
| Issue | Plaintiff's Argument (Graber) | Defendant's Argument (Boresky) | Held |
|---|---|---|---|
| Whether the appellate court has jurisdiction to hear an interlocutory appeal of the District Court’s ruling that a Bivens claim is cognizable (collateral-order doctrine) | Bivens authorization is a merits/ liability question that can be reviewed after final judgment | Collateral-order doctrine permits immediate review of a Bivens authorization even if immunity is not contested because separation-of-powers harms are effectively unreviewable | Majority: No jurisdiction — Bivens rulings are reviewable after final judgment and are not collateral-order appeals; dissent: would treat such orders as immediately appealable |
| Whether Graber’s Fourth Amendment claim presents a context in which Bivens should be extended (Ziglar step one & two) | Graber: his arrest/charging without probable cause fits within existing Bivens-related protection and special factors do not preclude relief | Boresky: this is a new context implicating separation of powers, national-security/Secret-Service functions, and alternative administrative remedies; special factors counsel hesitation | Majority: did not reach merits due to jurisdictional dismissal; Dissent: would find the context new and special factors counsel against extending Bivens, requiring dismissal |
| Whether the District Court properly denied summary judgment on qualified immunity to permit discovery | Graber: needed discovery to oppose summary judgment and to test what Boresky relied on | Boresky: sought summary judgment and stay of discovery; argued interlocutory appeal appropriate | District Court: denied summary judgment without prejudice to allow discovery; Boresky waived challenging that ruling on appeal; appellate court declined to review Bivens ruling absent jurisdiction |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognized an implied damages remedy for certain Fourth Amendment violations)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (two-step framework for deciding whether to extend Bivens into a new context)
- Egbert v. Boule, 142 S. Ct. 1793 (2022) (emphasized courts should hesitate to create new Bivens causes of action; Congress may be better suited to create remedies)
- Will v. Hallock, 546 U.S. 345 (2006) (narrowed collateral-order doctrine; distinguished Bivens from immunity doctrines for interlocutory appealability)
- Swint v. Chambers Cnty. Comm’n, 514 U.S. 35 (1995) (articulated criteria for collateral-order interlocutory appeals)
- Mitchell v. Forsyth, 472 U.S. 511 (1985) (qualified immunity is an immunity from suit that can justify immediate appeal)
- Hernandez v. Mesa, 140 S. Ct. 735 (2020) (separation-of-powers concerns relevant when creating cross-border Bivens claims; Congress’s role emphasized)
- Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994) (collateral-order doctrine is a narrow exception to final-judgment rule)
- Himmelreich v. Federal Bureau of Prisons, 5 F.4th 653 (6th Cir. 2021) (held that a Bivens authorization is not appealable under the collateral-order doctrine absent an appealable immunity ruling)