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
No. 21-1407
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 10, 2023
2023 Decisions 125
Honorable Cynthia M. Rufe, U.S. District Judge
PRECEDENTIAL
Opinions of the United States Court of Appeals for the Third Circuit
2-10-2023
Jeremy Graber v. Michael Boresky
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Recommended Citation
“Jeremy Graber v. Michael Boresky” (2023). 2023 Decisions. 125. https://digitalcommons.law.villanova.edu/thirdcircuit_2023/125
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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)
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
OPINION OF THE COURT
SHWARTZ, Circuit Judge.
In Bivens v. Six Unknown Named Agents оf 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 ordеr doctrine, we lack jurisdiction to consider that interlocutory ruling and we must dismiss this appeal.
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 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 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.
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
B
Citing Bivens, Plaintiff sued Boresky for false arrest, unlawful detention, and false charges.5 Boresky moved to dismiss, arguing that Plaintiff could not pursue his Fоurth 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 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
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
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-
II7
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.
We have jurisdiction over “appeals from all final decisions of the district courts.”
interlocutory appeals challenging a Bivens ruling in a qualified immunity appeal).
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
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
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
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.
For the foregoing reasons, we will dismiss this appeal.
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
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 dispоsitive 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
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 а “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
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
II
I agree with my colleagues that we must police the parameters of the collateral order clаss “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).
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 nonappealable 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 ovеrcome 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).
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
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
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
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 sepаration 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” оr privately “conferred” rights—such as entitlements allocated in
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
In sum, a court‘s wrongful arrogation of the legislative power to сreate 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.
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
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”
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 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
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
* * *
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.