WALTER J. HIMMELREICH, Plaintiff-Appellee, v. FEDERAL BUREAU OF PRISONS et al., Defendants, JANEL FITZGERALD, Defendant-Appellant.
No. 19-4146
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: July 22, 2021
21a0165p.06
Before: MOORE, COLE, and GIBBONS, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:10-cv-02404—Benita Y. Pearson, District Judge. Argued: June 15, 2021.
COUNSEL
ARGUED: H. Thomas Byron III, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. J. Benjamin Aguiñaga, JONES DAY, Washington, D.C., for Appellee. ON BRIEF: H. Thomas Byron III, Anne Murphy, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. J. Benjamin Aguiñaga, JONES DAY, Washington, D.C., for Appellee.
KAREN NELSON MOORE, Circuit Judge. This case arises from an assault upon Walter J. Himmelreich, a federal inmate, by another inmate while Himmelreich was incarcerated at FCI-Elkton. Himmelreich‘s subsequent lawsuits alleged numerous claims against prison officials, including a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for retaliation in violation of the First Amendment. Himmelreich claims that the captain at FCI-Elkton, Janel Fitzgerald, threatened to transfer him to a higher-level security institution if he filed a grievance regarding the assault and that she later admitted that she placed him in the Special Housing Unit (“SHU“) for filing a claim under the Federal Tort Claims Act, thereby violating his First Amendment rights. Fitzgerald moved for summary judgment only on the ground that there is no Bivens remedy for a First Amendment retaliation claim. The district court denied her motion for summary judgment.
Fitzgerald appeals the district court‘s recognition of Himmelreich‘s Bivens claim for First Amendment retaliation and the district court‘s denial of summary judgment on that claim. We DISMISS Fitzgerald‘s appeal for lack of jurisdiction because her appeal concerns neither a final order nor a non-final order entitled to review under the collateral order doctrine. Given that we dismiss Fitzgerald‘s appeal for lack of jurisdiction, we will waive appellate fees with respect to her appeal.
I. BACKGROUND
On October 20, 2008, another inmate, Peter Macari, assaulted Himmelreich. Himmelreich states in his complaint that, prior to the attack and while Macari was in the SHU, Macari had told prison officials that he “had a lot of stress in here.” R. 1 (Compl. ¶ 7) (Page ID #6). Macari singled out persons convicted of child sexual offenses as the source of his stress, stating that he was “not able to live with pedophiles,” and if released back into the prison‘s general population, he would “smash a pedophile.” Id. Macari‘s comments targeting “pedophiles” were pertinent to Himmelreich, who had pleaded guilty to one count of producing child pornography, United States v. Himmelreich, 265 F. App‘x 100, 102 (3d Cir. 2008), and who, according to Himmelreich, was “reputedly, among the inmate community, one of the biggest pedophiles on the Elkton compound and [was] aware that other inmates
Shortly after the assault, on November 14, 2008, Himmelreich alleges that Fitzgerald told him “in a threatening tone,” that if he continued to complain about the assault “[she would] personally see that [he was] transferred to a penitentiary and [he would] more than likely be attacked and not just beat up” there. R. 47 (06/03/13 Pl.‘s Resp. to Mot. for Summ. J. at 7) (Page ID #275). On March 5, 2009, prison officials placed Himmelreich in the SHU without explanation. R. 1 (Compl. ¶ 64) (Page ID #14). Sometime in April 2009, Himmelreich states that “Captain J. Fitzgerald, while making rounds in the SHU, yelled at [Himmelreich] through his door and so loud that the inmates in the surrounding cells could hear clear as a bell: ‘You want to know why you‘re in here? You‘re in here because of the fuckin’ Tort Claim you filed! That‘s why you‘re in here!‘” Id. ¶ 66 (Page ID #15). Himmelreich remained in the SHU for sixty days until prison officials released him on May 4, 2009. Id. ¶ 64 (Page ID #14). Defendants counter that prison officials placed Himmelreich in the SHU for his own protection after he complained of threats from other inmates. R. 163 (05/30/19 Reply in Supp. of Defs.’ Mot. for Summ. J. at 9) (Page ID #1648).
On February 11, 2010, Himmelreich filed a complaint against prison employees under the Federal Tort Claims Act (“FTCA“) based on the October 20, 2008 assault and its aftermath. Complaint, Himmelreich v. United States of America, No. 4:10-cv-00307-BYP (N.D. Ohio Feb. 11, 2010). The district court granted the defendants’ motion to dismiss Himmelreich‘s FTCA complaint because it came within the discretionary-function exception to the FTCA,
The district court granted two of the individual defendants’ motions to dismiss the Eighth Amendment failure-to-protect claims based on qualified immunity. Id. at 6–15 (Page ID #1678–87). For Himmelreich‘s First Amendment retaliation claim against Fitzgerald, however, the district court concluded that Himmelreich had stated a cognizable Bivens damages action, and the court denied summary judgment on that claim. Id. at 34 (Page ID #1706).
Fitzgerald appealed. R. 166 (Not. of Appeal) (Page ID #1708). Himmelreich, then pro se, filed a motion to stay proceedings because Fitzgerald had not paid her appellate fees. See No. 19-4146, R. 11 (Appellee‘s Mot. at 2). We denied Himmelreich‘s motion to stay proceedings without addressing the merits of his arguments. No. 19-4146, R. 18 (03/03/2020 Order).
II. DISCUSSION
Himmelreich asserts that this appeal should be dismissed for lack of appellate jurisdiction and for nonpayment of appellate fees. We agree with both of Himmelreich‘s arguments, although we will waive Fitzgerald‘s appellate fees in this instance.
A. Jurisdiction
We first “must determine that [we] have jurisdiction before proceeding to the merits” of Fitzgerald‘s appeal. Lance v. Coffman, 549 U.S. 437, 439 (2007). The district court had jurisdiction under
We have jurisdiction over “appeals from all final decisions of the district courts.”
Neither the Supreme Court nor this court (nor any other circuit, as far as we can tell) has considered whether an order denying summary judgment and allowing a new Bivens damages action to proceed is a collateral order subject to immediate appeal. Defendants in Bivens actions will likely include a claim of qualified immunity in their motion for summary judgment. Faced with this question of first impression, where the defendant has failed to raise a timely defense of qualified immunity, we hold that an interlocutory appeal from a district court order allowing a Bivens damages action to proceed does not come within the confines of the collateral order doctrine. Fitzgerald ties our jurisdiction over her appeal to an appellate court‘s well-established authority to review immediately appeals of district-court decisions denying qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (concluding that a district court‘s denial of qualified immunity is a collateral order subject to immediate appeal “to the extent that it turns on an issue of law“). First, Fitzgerald argues that decisions about whether to recognize a Bivens damages action are directly implicated by qualified-immunity determinations, and thus may be reviewed on interlocutory appeal. Second, Fitzgerald argues that the same concerns that justified extending the collateral order doctrine to decisions denying qualified immunity support extending the doctrine to district-court decisions recognizing Bivens damages actions.
For this first argument, Fitzgerald relies on trio of Supreme Court opinions in which the Court extended an appellate court‘s authority to review immediately district court orders denying qualified immunity to include issues directly implicated by qualified-immunity determinations.
In the second and most relevant case, Wilkie v. Robbins, 551 U.S. 537 (2007), the Supreme Court concluded that appellate jurisdiction existed to review on interlocutory appeal whether to recognize a new Bivens damages action as part of its review of the district court‘s decision denying qualified immunity. Quoting from Hartman, the Supreme Court noted that it “recognized just last Term that the definition of an element of the asserted cause of action was ‘directly implicated by the defense of qualified immunity and properly before us on interlocutory appeal.‘” Id. at 549 n.4 (quoting Hartman, 547 U.S. at 257 n.5). Accordingly, the Court concluded that the reasoning in Hartman as to elements of a cause of action applied equally to the “recognition of the entire cause of action.” Id.
Finally, in Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009), the Supreme Court built upon Hartman and Wilkie and held that appellate jurisdiction existed to review on interlocutory appeal the adequacy of the pleadings where the district court had both denied the defendants’ motion to dismiss for failure to state a claim and denied the defendants’ qualified-immunity defense. See id. (stating that “the sufficiency of [Iqbal‘s] pleadings is both ‘inextricably intertwined with,’ and ‘directly implicated by’ the qualified-immunity defense.” (quoting first Swint, 514 U.S. at 51, and second Hartman, 547 U.S. at 257 n.5)). These three cases stand for the proposition that an appellate court may review on interlocutory appeal decisions directly implicated by a district court‘s denial of qualified immunity.
In Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018), the Third Circuit noted that the defendants had appealed the district court‘s denial of qualified immunity, “[a]nd since the issue of whether a [Bivens] cause of action even exists . . . is a threshold question of law,” it concluded that it “ha[d] jurisdiction to consider [the Bivens question] as well.” Id. at 87 (quoting Vanderklok v. United States, 868 F.3d 189, 197 (3d Cir. 2017) (citing Wilkie, 551 U.S. at 549 n.4)). Fitzgerald argues that we should follow the Third Circuit‘s lead in concluding that we have jurisdiction over her appeal.
Fitzgerald, however, misunderstands the Supreme Court‘s reasoning in Wilkie and companion cases, and the Third Circuit‘s reasoning as to jurisdiction in Bistrian. In Hartman, Wilkie, and Iqbal, the appellate courts already had jurisdiction over the appeals challenging the district courts’ denial of qualified immunity. Similarly, in Bistrian, the defendants asserted a defense of qualified immunity in
Here, for some unexplained reason, Fitzgerald did not raise qualified immunity as a defense in her motion for summary judgment. Instead, Fitzgerald‘s sole argument in her motion for summary judgment as to Himmelreich‘s claim against her was that he had not established a cognizable Bivens remedy for First Amendment retaliation. Thus, there is no qualified-immunity argument here that the question of whether to recognize a Bivens damages action could “directly implicate.”
Seemingly recognizing that the predicate denial of qualified immunity is absent in this appeal, Fitzgerald changes tack and argues that in these cases discussed above the Court “implicitly recognized that its collateral-order jurisdiction . . . renders these orders [allowing Bivens claims to proceed], like outright denials of qualified immunity, appealable in their own right.” Fitzgerald Br. at 48. Contrary to the government‘s position, Himmelreich suggests that the Supreme Court‘s decisions in Hartman, Wilkie, and Iqbal are an exercise of pendent appellate jurisdiction that bootstraps ancillary questions onto preexisting appellate jurisdiction over decisions denying qualified immunity. Himmelreich Br. at 25–26 n.2. But the Court did not mention pendent appellate jurisdiction in these cases. Whatever the basis for the Supreme Court in recognizing appellate jurisdiction over matters directly implicated by the denial of qualified immunity, in each case there was a predicate denial of qualified immunity. Here, there is no predicate denial of qualified immunity, and thus, Fitzgerald‘s argument fails.
Because the Supreme Court‘s decisions in Hartman, Wilkie, and Iqbal do not help Fitzgerald, we turn to whether the district court‘s order independently satisfies the three requirements of the collateral order doctrine. For the purposes of this appeal we assume that the district court‘s order conclusively determines that Himmelreich has stated a cognizable Bivens remedy for First Amendment retaliation. We also assume that the district court‘s order resolves an important question of the separation of powers that is separate from the merits of Himmelreich‘s First Amendment retaliation claim. See Ziglar v. Abassi, 137 S. Ct. 1843, 1857 (2017).
We
Finally, Fitzgerald‘s argument that the collateral order doctrine extends to stand-alone appeals of district court orders recognizing a Bivens remedy also fails because it contravenes the Supreme Court‘s decision in Will v. Hallock, 546 U.S. 345 (2006). In Will, the plaintiffs had sued the United States under the FTCA for property damage. Id. at 347–48. The district court dismissed the plaintiffs’ FTCA claim for lack of jurisdiction because the suit fell within the discretionary-function exception to the FTCA. Id. at 348. While the plaintiff‘s FTCA action was pending, the plaintiffs filed suit raising a Bivens claim for violation of their constitutional due process rights. Id. The government argued that the district court should dismiss the plaintiffs’ constitutional suit because the judgment bar of the FTCA prohibits plaintiffs from bringing additional lawsuits when the district court has issued a judgment in an action under the FTCA. Id. The district court declined to dismiss the plaintiffs’ Bivens suit, and the Second Circuit affirmed. Id. at 348–49. The Supreme Court declined to extend the collateral order doctrine to
We can effectively review whether the district court properly recognized a Bivens damages action after a final judgment in Himmelreich‘s case. Indeed, the Supreme Court has reviewed a district court‘s recognition of a Bivens remedy after a jury verdict and final judgment. See F.D.I.C. v. Meyer, 510 U.S. 471, 474 (1994). Accordingly, we conclude that the collateral order doctrine does not permit immediate review of a district-court order denying summary judgment to a defendant facing a Bivens First Amendment retaliation claim, absent the jurisdictional hook of an appeal of a denial of qualified immunity. We thus do not reach the merits of Fitzgerald‘s challenge to the district court‘s order recognizing a Bivens remedy for First Amendment retaliation. Fitzgerald lost her motion for summary judgment, and we will not permit her to bypass the final-decision requirement of
B. Appellate Fees
Himmelreich poses a novel question of whether a Bivens defendant sued in her individual capacity but represented by the U.S. Department of Justice (“DOJ“) is required to pay appellate fees. See No. 19-4146, R. 11 (Appellee‘s Mot. at 2). We conclude that Fitzgerald, as a Bivens defendant sued in her individual capacity, is required to pay appellate fees even though the Department of Justice represents her on appeal. Given our lack of jurisdiction over her appeal and the novelty of the issue, we will waive1 her appellate fees in this instance.
We appear to be in uncharted waters on this issue of appellate fees. We have not found—and the parties have not cited—any case where a court has addressed whether a Bivens defendant sued in her individual capacity, but represented by the DOJ, must pay an appellate fee. To our
knowledge, our court has not adopted a formal policy regarding payment of appellate fees by Bivens defendants who are represented by the Department of Justice.
In the absence of formal policy or legal justification, Fitzgerald‘s counsel states
Appellants generally are required to pay fees and costs upon filing an appeal.
Congress has permitted some exceptions to the general rule that appellants are required to pay appellate fees. The notes to
pauperis status.” Simons v. Washington, 996 F.3d 350, 352 (6th Cir. 2021) (citing
At the outset, Fitzgerald argues that a Bivens suit against a defendant sued in her individual capacity “is not an ordinary action against a private party,” because the plaintiff is challenging the defendant‘s conduct while “acting under color of federal law.” Fitzgerald Br. at 53. By representing a Bivens defendant, the Department of Justice is confirming that the conduct in question “reasonably appear[s] to have been performed within the scope of the employee‘s employment” and that “providing representation . . . [is] in the interest of the United States.” 28 C.F.R. § 50.15(a). Here, Fitzgerald was a federal employee at the time of her alleged retaliation against Himmelreich for exercising his First Amendment rights. The DOJ also determined that representing her was in the interest of the United States. Despite the DOJ‘s determination that it was appropriate to represent Fitzgerald in this case, she remains sued in her individual capacity, not in her official capacity.
These statutes and rules extending preferential filing deadlines to cases involving Bivens defendants sued in their individual capacities do not support exempting them from appellate fees. At the outset, we note that these statutes and rules explicitly involve appellate filing deadlines, not appellate fees. These statutes undercut Fitzgerald‘s argument because they treat “the United States” and federal employees sued in their individual capacities as distinct by listing them as separate groups entitled to longer appellate filing deadlines. Further, they demonstrate that Congress is aware of how to articulate that appellate procedures apply in cases of federal employees sued in their individual capacities but chose not to do so for appellate fees. Thus, the statutes and rules upon which Fitzgerald relies do not help her.
In other contexts, Congress has distinguished between federal employees sued in their official capacities and those sued in their individual capacities. For instance, in
Requiring that all federal employees or officials sued in their individual capacities pay appellate fees also avoids treating litigants differently based on their legal representation. A bright-line rule that Bivens defendants sued in their individual capacities
The use of “United States” in the notes to
III. CONCLUSION
For the foregoing reasons, we DISMISS Fitzgerald‘s appeal for lack of appellate jurisdiction because her appeal concerns neither a final order nor a non-final order entitled to review under the collateral order doctrine. Given that we dismiss Fitzgerald‘s appeal for lack of appellate jurisdiction, we waive appellate fees with respect to her appeal.