Walter Himmelreich v. Fed. Bureau of Prisons
5 F.4th 653
| 6th Cir. | 2021Background
- Inmate Walter Himmelreich (convicted of producing child pornography) was assaulted by fellow inmate Peter Macari at FCI-Elkton after Macari was released from SHU despite prior threats; Himmelreich filed an FTCA tort claim and later a Bivens suit alleging, among other things, First Amendment retaliation by Captain J. Fitzgerald.
- Himmelreich alleges Fitzgerald threatened to transfer him to a penitentiary if he continued to complain and later told him he was in SHU because of the Tort Claim; defendants say SHU placement was for Himmelreich’s protection.
- Himmelreich’s FTCA suit was dismissed under the discretionary-function exception; the Sixth Circuit and the Supreme Court later held that dismissal did not trigger the FTCA judgment bar.
- On remand, the district court denied summary judgment to Fitzgerald on the First Amendment retaliation Bivens claim (Fitzgerald argued only that no Bivens remedy exists; she did not timely raise qualified immunity).
- Fitzgerald appealed the denial of summary judgment; the Sixth Circuit dismissed the appeal for lack of appellate jurisdiction under 28 U.S.C. § 1291 and the collateral-order doctrine, and (given the novel fee issue) waived Fitzgerald’s appellate fees.
Issues
| Issue | Plaintiff's Argument (Himmelreich) | Defendant's Argument (Fitzgerald) | Held |
|---|---|---|---|
| Whether an interlocutory appeal lies from a district court order denying summary judgment and recognizing a new Bivens First Amendment retaliation claim | Appeal should be dismissed for lack of jurisdiction; district court order is not final | The denial of a Bivens remedy is immediately appealable under the collateral-order doctrine, especially given Wilkie/Hartman/Iqbal line of cases | Dismissed for lack of jurisdiction: collateral-order doctrine does not permit immediate review of a stand-alone denial recognizing a Bivens claim absent a predicate denial of qualified immunity |
| Whether Wilkie/Hartman/Iqbal permit pendent appellate review of Bivens-recognition rulings when qualified immunity was not raised or appealed | N/A (Himmelreich defends dismissal) | Those precedents permit interlocutory review of Bivens-recognition because such questions are "directly implicated" by qualified-immunity review | Rejected: those cases involved predicate appeals of qualified-immunity denials; when qualified immunity is not asserted and appealed, the collateral-order jurisdictional hook is missing |
| Whether a federal employee sued in her individual capacity but represented by DOJ must pay appellate filing fees | Opposes waiver (procedural posture supports fee collection) | DOJ representation means the defendant should be treated like the United States and exempt from appellate fees | Holds that Bivens defendants sued in individual capacity generally must pay appellate fees; however, the court waives Fitzgerald’s fees in this instance because of jurisdictional dismissal and novelty of the issue |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (establishing implied damages remedy against federal officers for constitutional violations)
- Mitchell v. Forsyth, 472 U.S. 511 (1985) (qualified immunity is immediately appealable as an entitlement not to stand trial)
- Hartman v. Moore, 547 U.S. 250 (2006) (appellate review may reach issues "directly implicated" by qualified-immunity denial)
- Wilkie v. Robbins, 551 U.S. 537 (2007) (review of recognition of a cause of action can be part of interlocutory qualified-immunity review)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading sufficiency may be reviewed on interlocutory appeal when intertwined with qualified-immunity defense)
- Johnson v. Jones, 515 U.S. 304 (1995) (limits interlocutory qualified-immunity appeals where factual disputes exist)
- Will v. Hallock, 546 U.S. 345 (2006) (refused to extend collateral-order appeals to standalone Bivens-related rulings; government has no absolute right to avoid trial)
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (sets three-part collateral-order test)
- F.D.I.C. v. Meyer, 510 U.S. 471 (1994) (Supreme Court reviewed recognition of an implied remedy after final judgment)
- Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018) (discusses jurisdiction to review Bivens question where qualified-immunity denial was appealed)