[00:00:00] Speaker 04:
Next case, 22-1453, Muhammad versus Jones.

[00:00:04] Speaker 04:
Mr. Sturgell.

[00:00:06] Speaker 04:
Good morning.

[00:00:07] Speaker 04:
May it please the court, I'm Lowell Sturgell from the Department of Justice, representing the appellants, who are several Bureau of Prisons officials who are sued in their individual capacities for damages under a Bivens theory.

[00:00:20] Speaker 04:
I'd like to reserve two minutes of my time for Roboto, please.

[00:00:24] Speaker 04:
Based on this court's recent decisions in Silva and Logston,

[00:00:29] Speaker 04:
I think it's pretty clear that the district court should not have extended Abivin's remedy to the claims Mr. Mohammed brings here.

[00:00:36] Speaker 04:
The more interesting question is whether the court has jurisdiction over our appeal under the collateral order doctrine.

[00:00:44] Speaker 04:
We feel like the court clearly does, and I'd like to begin with that.

[00:00:49] Speaker 04:
The Cohen test from the Supreme Court has three factors.

[00:00:53] Speaker 04:
One of the factors is whether the argument the government is making is important and separate from the merits.

[00:00:59] Speaker 04:
So the Supreme Court has made it clear that when an individual defendant moves to dismiss based on an argument that special factors preclude extending a Bivens Remedy, that raises serious separation of powers concerns.

[00:01:16] Speaker 04:
And it will, the Supreme Court said, that separation of powers concerns are important enough to merit an immediate appeal under the collateral order doctrine.

[00:01:25] Speaker 04:
There's a second aspect of importance, and that's that the Bivens Special Factors Doctrine also serves the same important purposes as does qualified immunity, I'm sorry.

[00:01:40] Speaker 04:
So qualified immunity and Bivens Special Factors are meant to protect the smooth functioning of government and to protect against chilling government officials from exercising their discretion in appropriate ways.

[00:01:51] Speaker 03:
Yeah, but they're different.

[00:01:54] Speaker 03:
They're different conceptually.

[00:01:55] Speaker 03:
They're different in kind, aren't they?

[00:01:57] Speaker 03:
Qualified immunity is an affirmative defense.

[00:02:00] Speaker 03:
It's also intended to relieve the government defendant from the burden of trial.

[00:02:11] Speaker 03:
Bivens remedy is not an affirmative defense.

[00:02:15] Speaker 03:
It's a question of whether the Bivens theory extends

[00:02:20] Speaker 03:
liability, I don't see how you can really equate the two.

[00:02:26] Speaker 04:
So Your Honor, respectfully, I think that the focus should be on, again, the Supreme Court's holding that when special factors preclude extending a Bivens remedy,

[00:02:39] Speaker 04:
The reasons for that are the same as qualified immunity.

[00:02:43] Speaker 04:
And so the focus should be on the special factors and not the fact that Bivens itself creates a remedy where the Supreme Court has done so.

[00:02:50] Speaker 04:
When you look at it that way, I think it just completely maps onto the qualified immunity analysis.

[00:02:56] Speaker 03:
Well, the other circuits that have addressed this don't agree with you on that and have drawn that distinction.

[00:03:02] Speaker 03:
So how do you overcome the reasoning in cases like Braver?

[00:03:07] Speaker 04:
So, honestly, I think, first of all, the reasoning is just wrong for the reasons I just gave you.

[00:03:12] Speaker 04:
But second, Judge Hardeman descended from the Graeber opinion, and we think his opinion is correct.

[00:03:18] Speaker 04:
So you have choice.

[00:03:19] Speaker 04:
You can... Well, why is his opinion correct?

[00:03:22] Speaker 04:
Well, again, because, well, first of all, even putting aside the qualified immunity question, the fact that Bivens special factors analysis raises important separation of powers concerns is sufficient by itself to satisfy that.

[00:03:37] Speaker 03:
Well, is that the only separation of powers concerns in play here?

[00:03:41] Speaker 03:
After all, what you're asking us to do is recognize an exception to a statute, 28 U.S.C.

[00:03:50] Speaker 03:
1291, to expand the collateral order doctrine.

[00:03:56] Speaker 03:
Why doesn't that implicate a continuing separation of powers concern?

[00:04:03] Speaker 03:
Shouldn't Congress be making that decision, opposed to the court?

[00:04:07] Speaker 04:
So on that point, what we're asking the court to do is just follow the Cohen decision from the Supreme Court, which is... Well, no one else has, and so why should we?

[00:04:18] Speaker 04:
To again answer your question, or to try to answer your question, interpreting 1291 the way Cohen did is an exercise in statutory interpretation.

[00:04:28] Speaker 04:
So merely trying to properly interpret it as statute,

[00:04:34] Speaker 04:
and do it consistent with Congress's intent, that doesn't itself raise separation of powers concerns in the same way that Egbert and Abbasi have said that extending a Bivens remedy raises the separation of powers concern.

[00:04:48] Speaker 02:
So I'm sorry, go ahead.

[00:04:54] Speaker 02:
I understand the distinction between the majority and dissent in those cases, but this separation of powers entry seems

[00:05:03] Speaker 02:
highly conceptual, esoteric, in many senses.

[00:05:10] Speaker 02:
Is it really the kind of injury that we need to invoke the unusual exception of the collateral order doctrine here?

[00:05:24] Speaker 02:
The flip side is the government waits a couple years to indicate its immunity from these suits.

[00:05:32] Speaker 04:
So, Your Honor, there are no unimportant separation of powers violations.

[00:05:38] Speaker 04:
I'm not aware of any Supreme Court case that said, oh, well, here's the separation of powers violation, but it's unimportant and it can wait.

[00:05:46] Speaker 04:
We can overlook it.

[00:05:47] Speaker 04:
We can bypass it.

[00:05:48] Speaker 03:
Well, no one's claiming that there's a separation of powers violation, are they?

[00:05:51] Speaker 03:
Is that what you're saying?

[00:05:53] Speaker 03:
Well, yes.

[00:05:53] Speaker 03:
That if we don't take jurisdiction, we violated separation of powers?

[00:06:00] Speaker 03:
Is that your argument?

[00:06:02] Speaker 04:
I think what we're saying, well, let me just say, I think you could say it amounts to that.

[00:06:08] Speaker 04:
In Egbert, the Supreme Court said, and it stressed that whenever a court extends a Bivens remedy beyond Davis-Carlson and Bivens itself, whenever the court does that, in quotes, it plusses great stress on separation of powers.

[00:06:26] Speaker 04:
So that's a given, and that's the basis of our separation of powers argument.

[00:06:31] Speaker 04:
And then Will says, okay, well, separation of powers, even a threatened separation of powers violation is the kind of important question that merits an immediate appeal under the collateral order doctrine.

[00:06:44] Speaker 03:
But Will also warns against extending interlocutory appeal beyond qualified immunity

[00:06:54] Speaker 03:
to other types of pretrial dismissals in applying the collateral order doctrine on the grounds of putting the government to the burden of trial.

[00:07:04] Speaker 03:
How do we deal with that language and will?

[00:07:07] Speaker 04:
Well, first of all, that would relate to our qualified and immediate argument, but it doesn't relate to our separation of powers argument.

[00:07:13] Speaker 04:
Will itself said in citing Nixon that even a threatened separation of powers violation is important enough to allow a collateral order.

[00:07:22] Speaker 04:
So that's all you need to do.

[00:07:24] Speaker 04:
That's all you need to focus on to agree with us.

[00:07:26] Speaker 03:
Well, I need to push this a little bit, because we do have this statement in Will, which, by the way, the Graver majority mentioned

[00:07:36] Speaker 03:
Judge Hardeman mentioned, it's on the table relative to whether we have jurisdiction.

[00:07:41] Speaker 03:
They both acknowledge that.

[00:07:43] Speaker 03:
Are you saying it isn't relevant?

[00:07:45] Speaker 03:
Are you disagreeing with both the majority and the dissent in Gregor in that regard?

[00:07:50] Speaker 04:
Well, it's potentially relevant to one of the grounds that we're relying on, and that is the similarity between qualified immunity and BIV and special tractors.

[00:07:58] Speaker 03:
Well, let's take it back to the Cohen test itself.

[00:08:01] Speaker 03:
It's relevant to the third element of Cohen, isn't it?

[00:08:04] Speaker 03:
It's relevant but not persuasive here.

[00:08:07] Speaker 03:
Why not?

[00:08:08] Speaker 03:
You've got this statement in Will.

[00:08:11] Speaker 03:
We're under an obligation, even if it's dictum, as was said in certain parts of Graver, we have to take that seriously.

[00:08:21] Speaker 03:
Should we not take it seriously?

[00:08:24] Speaker 04:
Well, maybe let me get it this way.

[00:08:25] Speaker 04:
I don't believe Will said that qualified immunity is the only ground

[00:08:29] Speaker 04:
that should allow an immediate appeal.

[00:08:32] Speaker 03:
Nobody could say that because there are other exceptions that fit the collateral order doctrine.

[00:08:38] Speaker 03:
But Will said, and I'm going to quote it, simply abbreviating litigation troublesome to government employees were important enough for collateral order treatment and collateral order appeal would be a matter of right.

[00:08:50] Speaker 03:
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.

[00:08:59] Speaker 03:
Isn't that a statement that we have to take seriously?

[00:09:03] Speaker 03:
Sure.

[00:09:04] Speaker 04:
And what the court was referring to is the judgment bar, right?

[00:09:07] Speaker 04:
And what the court said is, if I could finish.

[00:09:08] Speaker 03:
It was in that case, but it was making a statement about extending the collateral order doctrine.

[00:09:13] Speaker 03:
And that goes to element three of the Cohen test.

[00:09:19] Speaker 03:
a Bivens Extension issue not effectively reviewable after judgment.

[00:09:28] Speaker 04:
Because separation of powers violations are important per se.

[00:09:34] Speaker 04:
They can't be ignored.

[00:09:35] Speaker 04:
You can't slough them off and just say, oh, well, we can wait.

[00:09:38] Speaker 04:
Every time there's a separation of powers violation, the court has done something it's not supposed to do, and it violates the relationship between the bridges.

[00:09:46] Speaker 03:
When they go to a court's dismissal, a 12-26 dismissal of almost any claim,

[00:09:52] Speaker 03:
against a state or federal government official?

[00:09:55] Speaker 04:
No, Your Honor.

[00:09:56] Speaker 04:
There's a complete difference between a separation of powers argument and something like personal jurisdiction or... Why would that be a separation of powers argument?

[00:10:06] Speaker 03:
Why isn't there a separation of powers tension there?

[00:10:08] Speaker 04:
I don't believe any court has ever addressed personal jurisdiction or venue or... I didn't say personal jurisdiction.

[00:10:16] Speaker 03:
Did I even say that?

[00:10:17] Speaker 03:
I'm giving you examples of other... Well, I didn't say that.

[00:10:21] Speaker 04:
Well, let me try it this way.

[00:10:22] Speaker 04:
The plaintiffs give you a choice.

[00:10:25] Speaker 04:
I think you have a choice today.

[00:10:26] Speaker 04:
There are two ways to look at it.

[00:10:28] Speaker 03:
But by the way, if we go your direction, we'd be creating a circuit split, correct?

[00:10:32] Speaker 04:
That's correct.

[00:10:33] Speaker 04:
All right.

[00:10:33] Speaker 04:
So you have a choice.

[00:10:35] Speaker 04:
There are only two options on the table.

[00:10:37] Speaker 04:
What the plaintiffs are telling you is that a Bivens special factor order is immediately appealable if it is conjoined with a qualified immunity appeal.

[00:10:48] Speaker 04:
And we're saying it's immediately beable alone.

[00:10:52] Speaker 04:
Well, their view can't be right, because the only theory that would make it right is if it's a theory of pendant jurisdiction.

[00:11:00] Speaker 04:
That, oh, gee, well, we know that Biven Special Factors Orders are antecedent.

[00:11:07] Speaker 04:
to either the merits or qualified immunity.

[00:11:11] Speaker 04:
So the only theory they can have that would work is dependent jurisdiction.

[00:11:14] Speaker 04:
The Supreme Court does not like theories of dependent jurisdiction.

[00:11:17] Speaker 04:
And their own case in Himmelreich said they rejected the idea of dependent jurisdiction.

[00:11:25] Speaker 04:
So in essence, their position doesn't have a theory that makes any sense.

[00:11:30] Speaker 01:
OK, I think I understood everything you said, but I didn't understand your point.

[00:11:35] Speaker 01:
So I don't mean that.

[00:11:37] Speaker 01:
little of it.

[00:11:37] Speaker 01:
I've just confessed that I didn't understand the point.

[00:11:41] Speaker 01:
So that's true, but what's your point behind that?

[00:11:49] Speaker 01:
I mean, that is true if qualified immunity under Mitchell v. Forsyth is immediately unappealable, and if you conjoin it with some other issue that is not immediately appealable,

[00:12:01] Speaker 01:
in their view, for example, an extension of Bivens or anything, a personal jurisdiction, then you would only have appellate jurisdiction if it's under supplemental appellate jurisdiction, dependent jurisdiction.

[00:12:21] Speaker 01:
But what does that establish?

[00:12:23] Speaker 01:
What is your point from all that?

[00:12:26] Speaker 04:
So at the highest level of generality, the point is,

[00:12:31] Speaker 04:
They've given you an argument, and their argument doesn't work.

[00:12:34] Speaker 04:
So the only other argument you have is ours.

[00:12:37] Speaker 04:
You have a binary choice.

[00:12:39] Speaker 04:
We know that these orders are appealable.

[00:12:41] Speaker 04:
They're giving you a reason why it can only be appealable when it's conjoined with a qualified immunity appeal.

[00:12:46] Speaker 04:
That doesn't work, because it ends up depending on an independent jurisdiction.

[00:12:50] Speaker 04:
And so it must be ours.

[00:12:51] Speaker 04:
The second way is the Supreme Court addressed special factors arguments without addressing qualified immunity.

[00:13:00] Speaker 04:
in both Wilkie and Hernandez.

[00:13:03] Speaker 01:
And in Wilkie and Hernandez, did the Supreme Court expressly adjudicate the immediate appealability of the issue?

[00:13:12] Speaker 01:
It didn't explain... Well, yeah, it didn't address it, did it?

[00:13:16] Speaker 04:
No.

[00:13:16] Speaker 01:
And so in Webster Falls, didn't the Supreme Court tell us that whenever an issue is lurking in the background, that a case cannot stand for the proposition,

[00:13:27] Speaker 01:
only because it is working in the background.

[00:13:29] Speaker 01:
I mean, we have lots of times at the Supreme Court that litigants come before us and say, well, the Supreme Court adjudicated the merits of X, and so they must have

[00:13:39] Speaker 01:
you know, figured out that there was jurisdiction and the truth is, you know, maybe nobody picked up on that there was an issue of jurisdiction.

[00:13:51] Speaker 04:
No, I grant you that those cases are not controlling authority on this.

[00:13:54] Speaker 04:
We're not saying they're controlling, but I do think you're in a position of trying to figure this out, right?

[00:13:59] Speaker 04:
Those cases did what they did and so how did they get there?

[00:14:02] Speaker 04:
So the only way they could have gotten there is either that these orders, special factors, those are immediately appealed on their own, or else it's dependent jurisdiction.

[00:14:11] Speaker 03:
If the government is so concerned about separation of powers,

[00:14:16] Speaker 03:
and wanting to get this up on appeal quickly.

[00:14:20] Speaker 03:
Weren't there other options that were not even pursued?

[00:14:24] Speaker 03:
Couldn't 1292 have been a vehicle?

[00:14:26] Speaker 03:
Couldn't 54B have been a vehicle?

[00:14:29] Speaker 03:
Wasn't there also a qualified immunity ruling by the district court in this case that could have carried the Bivens claim?

[00:14:37] Speaker 03:
It seems if the government is so concerned about this, weren't there other avenues to get this case here other than just taking the straight Bivens appeal?

[00:14:49] Speaker 04:
Well, the collateral order doctrine gives the party the right to an appeal.

[00:14:53] Speaker 04:
1292B, of course, is discretionary, and a qualified immunity appeal requires a judgment about whether... No, I'm just saying, weren't there other options?

[00:15:02] Speaker 04:
Well, even conceding there were other options, that doesn't mean that we waived anything or that the court shouldn't take seriously our arguments on collateral order.

[00:15:11] Speaker 04:
I see my time is gone.

[00:15:12] Speaker 02:
Go ahead and finish your comment there.

[00:15:14] Speaker 04:
I actually may have.

[00:15:17] Speaker 02:
I do have another question on the separation of powers and injury.

[00:15:23] Speaker 02:
I mean, Bivens has been with us for 40 years.

[00:15:27] Speaker 02:
And to the extent that there's this tussle between the

[00:15:32] Speaker 02:
federal judiciary creating a remedy out of whole cloth versus the congressional legislative authority to do so.

[00:15:42] Speaker 02:
They've sat on their hands for 40 years.

[00:15:44] Speaker 02:
So Congress doesn't seem to be particularly offended by what the federal courts are doing, have done.

[00:15:51] Speaker 02:
And federal courts, maybe to their credit or not, have not extended dividends.

[00:15:58] Speaker 02:
So is there really a

[00:16:01] Speaker 02:
a fundamental dispute between the legislative branch and the judicial branch on these questions?

[00:16:10] Speaker 04:
So our answer would be, you can't, I think, read anything from the silence from Congress, because they don't do things for any number of reasons.

[00:16:17] Speaker 04:
It's a political process.

[00:16:19] Speaker 04:
They don't have the votes.

[00:16:19] Speaker 04:
They're working on other things.

[00:16:21] Speaker 04:
So I don't think it's fair to read from their inaction that there's no separation of powers issue here, particularly because the Supreme Court and Egbert and Abbasi have said there is.

[00:16:30] Speaker 04:
So the judicial branch itself has acknowledged that there's major separation of powers concerns addressed here, and I think that's enough to take it seriously.

[00:16:42] Speaker 02:
All right, counsel, we appreciate your argument.

[00:16:44] Speaker 02:
Your time's expired.

[00:17:08] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:17:10] Speaker 00:
Madeline Dobkin, appearing on behalf of Kalfan Mohammed, the appellee in this matter.

[00:17:15] Speaker 00:
I'm a student, appearing under the Student Practice Act, supervised by my professor, Matthew Cushing, who's in the courtroom with us today.

[00:17:22] Speaker 00:
This Court lacks jurisdiction, and this appeal should be dismissed.

[00:17:28] Speaker 00:
I'd like to begin by responding directly to the appellant's emphasis on separation of powers concerns.

[00:17:35] Speaker 00:
First, this court should not consider separation of powers in support of the jurisdictional analysis because the separation of powers is the entire merits issue.

[00:17:46] Speaker 00:
As the Supreme Court said in Egbert, the special factors question is entirely about separation of powers.

[00:17:53] Speaker 00:
And this court in Auraria Student Housing, the campus village, said that we don't consider jurisdictional arguments that presume the correctness

[00:18:03] Speaker 00:
of the appellant's merits arguments.

[00:18:09] Speaker 00:
Second, Judge Matheson, you're exactly correct in that the separation of powers is one of the strongest points in Mr. Muhammad's favor here.

[00:18:17] Speaker 00:
In 53 years, Congress has never once legislated against Bivens, and as we describe in our briefs, has implicitly approved of Bivens in subsequent legislation.

[00:18:28] Speaker 00:
However, while Congress has never legislated against Bivens, Congress has legislated against appeals of non-final orders, which is exactly what we have here today.

[00:18:40] Speaker 00:
The appellants have basically asked this court to expand its own jurisdiction in contravention of section 1291.

[00:18:47] Speaker 03:
Could I just ask you a question about that?

[00:18:51] Speaker 03:
I was interested in the brief, I guess it's the supplemental brief that you filed.

[00:18:58] Speaker 03:
On page 18, the brief says, exercising jurisdiction here would open the floodgates hundreds of appeals each year and violate separation of powers.

[00:19:13] Speaker 03:
I'm not going to ask you about the floodgates point, but could you explain why it would actually violate separation of powers?

[00:19:22] Speaker 00:
Yes, Your Honor.

[00:19:23] Speaker 00:
Section 1291 prohibits appeals of orders that are not final.

[00:19:28] Speaker 00:
And here that's exactly what we have.

[00:19:30] Speaker 00:
The denial of a motion to dismiss is an unappealable interlocutory ruling.

[00:19:35] Speaker 00:
It ensures that the litigation will proceed without so it cannot possibly be a final order.

[00:19:41] Speaker 00:
And this goes to the collateral order doctrine analysis here.

[00:19:48] Speaker 00:
Specifically, I'll remind the court that it is the appellant's entire burden to prove each and every element of the collateral order doctrine.

[00:19:55] Speaker 00:
And here, the appellants have not and indeed could not do so.

[00:20:02] Speaker 00:
go backwards and direct the court to the third element of the collateral order doctrine, the effectively unreviewable unappealed from final judgment requirement.

[00:20:11] Speaker 02:
But isn't the point there that once the case proceeds to trial, the injuries occur.

[00:20:20] Speaker 02:
You can never unring the bell of discovery and trial.

[00:20:24] Speaker 02:
And to that extent, the judicial creation of a, the improper judicial creation of a remedy

[00:20:32] Speaker 02:
and subjecting the defendant of the United States to the burden of litigation, much like conceptually qualified immunity, the process is the injury and that can never be repaired upon a normal appellate review.

[00:20:54] Speaker 02:
Could you respond to that?

[00:20:56] Speaker 00:
Yes, Your Honor, two points in response to that.

[00:20:58] Speaker 00:
First, qualified immunity is the proper mechanism to protect against the costs and burdens of litigation.

[00:21:05] Speaker 00:
As the appellants concede on page 37 of their reply brief, the exclusive purpose of Bivens is to deter official misconduct.

[00:21:14] Speaker 00:
And so to the extent that there are costs and burdens of litigation, that's the exact purpose of Bivens.

[00:21:20] Speaker 00:
Additionally, the government is amply protected in this sense.

[00:21:23] Speaker 02:
That's the purpose of Bivens.

[00:21:26] Speaker 02:
claim properly framed.

[00:21:29] Speaker 02:
And the merits argument here is this is not a viable Bivens claim.

[00:21:36] Speaker 00:
Your Honor, the jurisdictional question comes first.

[00:21:38] Speaker 00:
And here the Supreme Court in both Will v. Halleck and Swin v. Chambers County Commission has repeated that the burdens of trial are insufficient to exercise collateral order jurisdiction.

[00:21:53] Speaker 00:
They are not considerations that

[00:21:55] Speaker 00:
should be brought in support of collateral order jurisdiction.

[00:21:59] Speaker 00:
And that was the argument of the federal agents in Will v. Halleck.

[00:22:03] Speaker 00:
They argued that the denial of the motion to dismiss would subject them to burdens of litigation, but the Supreme Court in Will refused to extend collateral order jurisdiction.

[00:22:15] Speaker 00:
And of course, on page 353 of Will, as Judge Matheson said, we have the Supreme Court using our case, the denial of a Bivens motion to dismiss as an example

[00:22:25] Speaker 00:
of a case that does not fall within the collateral order doctrine's purview.

[00:22:29] Speaker 00:
And I think that sentence in Will compels this court's ruling.

[00:22:32] Speaker 01:
Is that passage on 353 of Will, are you predicating that on the notion that there has to be an immunity from suit?

[00:22:44] Speaker 00:
Yes, Your Honor.

[00:22:44] Speaker 00:
The qualified immunity appeal would have been necessary for this court to exercise jurisdiction here, because without it, there's no entitlement not to stand trial.

[00:22:54] Speaker 00:
The basis of the court's analysis in Mitchell v. Forsythe in extending the collateral order doctrine to qualified immunity, the court emphasized that qualified immunity is a right not to stand trial.

[00:23:06] Speaker 01:
And so the government is, maybe they haven't used these precise words, but aren't they, in effect, arguing that an extension of Bivens beyond the three areas that it has already been applied by the Supreme Court

[00:23:23] Speaker 01:
does envision protection against suit.

[00:23:28] Speaker 01:
After all, there is no statute that required the Supreme Court in Mitchell versus Forsyth to say that qualified immunity is a protection from suit.

[00:23:38] Speaker 01:
It was implicit, perhaps, in the Nixon case with absolute immunity,

[00:23:49] Speaker 01:
And so, aren't they in effect arguing that because of the separation of powers, the important interest that Judge Hardeman had noted in his dissent, that this is another area where there should be an immunity from Sue as well as a protection against liability?

[00:24:09] Speaker 00:
No, Your Honor, because here there's no vested right not to stand trial.

[00:24:13] Speaker 00:
There's a cause of action, and I agree that the cause of action sets a high bar for plaintiffs, but that can't be read as a vested right for defendants not to stand trial.

[00:24:23] Speaker 00:
Just because it's a high bar does not mean that it gives the defendants a right.

[00:24:28] Speaker 00:
And as you bring up Judge Hardeman's dissent,

[00:24:32] Speaker 00:
It's actually not entirely clear that Judge Hardeman would have agreed with the appellants here today.

[00:24:37] Speaker 00:
This goes to the conclusiveness element of the collateral order doctrine.

[00:24:41] Speaker 00:
There's a key procedural distinction between this case and that engraver.

[00:24:46] Speaker 00:
And that is that we have the denial of a motion to dismiss, whereas the Third Circuit was presented with a denial of a motion for summary judgment.

[00:24:54] Speaker 00:
And that was critical to Judge Hardeman's analysis of the conclusiveness element.

[00:24:59] Speaker 00:
On page 617 of Judge Hardeman's dissent,

[00:25:02] Speaker 00:
He identifies three things that make him comfortable that that order was conclusive.

[00:25:07] Speaker 00:
Pleadings,

[00:25:08] Speaker 00:
discovery, and summary judgment record.

[00:25:12] Speaker 00:
Here we have one of those three things.

[00:25:14] Speaker 00:
We have the pleadings.

[00:25:15] Speaker 00:
And so to the extent that Judge Hardiman felt there was enough factual development in Graber to find that order conclusive, it's not clear that he would have felt the same here.

[00:25:24] Speaker 00:
And I'd remind the court that Judge Hardiman's opinion did not persuade the majority of the Third Circuit.

[00:25:30] Speaker 00:
The majority in the Third Circuit got it right because a number of the

[00:25:34] Speaker 00:
Concerns that Judge Hardeman emphasizes have been rejected by the Supreme Court already.

[00:25:39] Speaker 02:
You know, Mr. Sturgell did made it made a point that it's not particularly coherent to latch of Bivens' appeal to a qualified immunity appeal.

[00:25:56] Speaker 02:
I think the point is it's not doctrinally coherent either.

[00:26:04] Speaker 02:
Your theory should be that the Bivens appeal occurs at the end of the case when there's a final judgment.

[00:26:11] Speaker 02:
Can you respond to that?

[00:26:13] Speaker 00:
Yes, Your Honor.

[00:26:14] Speaker 00:
In the vast majority of cases, Bivens has been linked to a qualified immunity appeal.

[00:26:20] Speaker 00:
Is that right?

[00:26:21] Speaker 00:
Yes, Your Honor.

[00:26:23] Speaker 00:
But in the few cases that it's not, I can't speak to how the government will get into this court's jurisdiction.

[00:26:30] Speaker 00:
All I can say is that this court must have jurisdiction.

[00:26:33] Speaker 00:
And here we have one question, the Bivens question.

[00:26:36] Speaker 00:
And it does not satisfy all three elements of the collateral order doctrine.

[00:26:40] Speaker 00:
And therefore, this court cannot exercise jurisdiction.

[00:26:45] Speaker 03:
Could I just ask you, Judge Bacharach was mentioning that Bivens extensions have been rarely recognized.

[00:26:53] Speaker 03:
In fact, I don't think the Supreme Court has recognized one for 44 years.

[00:27:00] Speaker 03:
Wouldn't interlocutory review be more in keeping the separation of powers in the sense that an appellate court can more promptly correct a district court's overstepping into the legislature's domain?

[00:27:16] Speaker 03:
And in answering that question, why shouldn't we recognize the fact that Bivens is pretty much

[00:27:27] Speaker 03:
stuck in neutral.

[00:27:28] Speaker 03:
I mean, there have been no extensions, and yet here we have a district court decision extending Bivens.

[00:27:37] Speaker 03:
So why isn't the government correct that to the extent that we have a separation of powers concern, let's address it now rather than later, and then we don't have the separation of powers concern?

[00:27:51] Speaker 00:
Three points in response to that, Your Honor.

[00:27:53] Speaker 00:
The first is that I recognize that Bivens is a narrow doctrine, but so is the collateral order doctrine.

[00:27:59] Speaker 00:
And when we're putting narrow versus narrow, the jurisdictional question comes first.

[00:28:04] Speaker 00:
Second, to the extent that this court believes it knows how it would rule on the merits, this court in United States v. Springer in 2017 said, even if the merits question is more easily resolved, jurisdiction is a threshold question.

[00:28:18] Speaker 00:
Additionally, it's not clear that resolving this case on the merits now would have some practical advantage, because there are claims pending below.

[00:28:28] Speaker 00:
And as Judge Bacharach, your Kelvie Benson opinion emphasizes, when an appeal is likely to return to the courts, it's not clear that it's a matter of efficiency to hear the merits now.

[00:28:41] Speaker 00:
And then I'd also emphasize that in Van Collenburg, I hope I'm saying that right, Van Collenburg v. Beard,

[00:28:47] Speaker 00:
The Supreme Court said that speeding litigation along is not a basis for collateral order jurisdiction.

[00:28:53] Speaker 00:
And as to the separation of powers concerns, I would note that there's nothing about that, the separation of powers concerns, that is not reviewable on appeal from final judgment.

[00:29:06] Speaker 03:
I'd like to- Well, except for the point that Judge Timkovich was making in that it's going to take another

[00:29:15] Speaker 03:
I don't know how long, a year or two, where an extension of Bivens may be in place in the case when, in the end, maybe it shouldn't be.

[00:29:27] Speaker 03:
So I guess related to that, maybe one way to ask this would be, how is a Bivens extension more reviewable after final judgment than qualified immunity?

[00:29:45] Speaker 00:
Because, Your Honor, the denial of a motion to dismiss is reversible.

[00:29:49] Speaker 00:
Qualified immunity is a right not to withstand litigation.

[00:29:53] Speaker 00:
And so once that immunity is denied and the litigation takes one more step in the district court, that immunity is conclusive.

[00:30:00] Speaker 00:
It is effectively unrevealable.

[00:30:02] Speaker 00:
But here, this court can decide the merits question on appeal from final judgment, and FDIC V. Meyer illustrates that.

[00:30:10] Speaker 00:
In Meyer, the Supreme Court reversed a jury verdict for the Bivens plaintiffs, finding that the Bivens cause of action was improper.

[00:30:18] Speaker 00:
Meyer negates any argument that these orders are not reviewable on appeal from final judgment.

[00:30:24] Speaker 00:
And importantly, the appellants concede that point by failing to address Meyer's impact in their reply brief.

[00:30:30] Speaker 00:
And I'd also note that Meyer doesn't stand alone.

[00:30:34] Speaker 00:
This court in at least two cases has reversed jury verdicts for Bivens plaintiffs finding that the Bivens cause of action was improper.

[00:30:44] Speaker 00:
I'd like to briefly address the conclusiveness element of the collateral order doctrine because an order is not conclusive where we expect that it will be revisited or reassessed in the ordinary course of litigation.

[00:30:55] Speaker 00:
And that's exactly what we have here.

[00:30:57] Speaker 00:
The district court will continue to reassess the propriety of the Bivens cause of action before trial.

[00:31:04] Speaker 00:
And the Department of Justice actually recognizes this.

[00:31:07] Speaker 03:
They regularly seek some... Well, how is that any different from qualified immunity?

[00:31:12] Speaker 03:
I mean, qualified immunity could be raised on a motion to dismiss, but if that motion fails, it could be raised again at the motion for summary judgment.

[00:31:21] Speaker 03:
And for that matter, maybe even depending on how the trial goes in a motion, a Rule 50 motion.

[00:31:28] Speaker 03:
So how is that any different from qualified immunity?

[00:31:32] Speaker 03:
Yes, Your Honor, because again, immunity is about not proceeding in litigation, and so it protects the government from... Well, no, I understand that, but I thought your point was that the Bevin's extension issue could continue to be in play.

[00:31:47] Speaker 03:
But why is that different from qualified immunity?

[00:31:50] Speaker 03:
Because it potentially could continue to be in play.

[00:31:53] Speaker 00:
Because, Your Honor, immunity is a different beast.

[00:31:55] Speaker 00:
It is an affirmative defense, and so the denial of a motion to dismiss the Supreme Court has repeatedly said will continue to be reassessed.

[00:32:04] Speaker 03:
Well, I understand your different beast point.

[00:32:07] Speaker 03:
I was trying to make that point with Mr. Sturgell, but on the other hand, he makes the point that

[00:32:15] Speaker 03:
You know, maybe qualified immunity and whether Bivens should be extended are more similar than they are different in the sense that there's qualified immunity there.

[00:32:25] Speaker 03:
There's a policy reason for having it so that state officers are not always looking over their shoulder worrying about being sued.

[00:32:36] Speaker 03:
Why doesn't the determination on Bivens speak to that interest?

[00:32:42] Speaker 00:
I see I'm out of time if I may respond.

[00:32:43] Speaker 00:
Yeah, go ahead and respond to his question.

[00:32:47] Speaker 00:
The use of immunity in Will and in Mitchell v. Forsyth, it talks about quintessential separation of powers concerns.

[00:32:56] Speaker 00:
It talks about the president of the United States in Nixon v. Fitzgerald.

[00:33:00] Speaker 00:
It talks about the attorney general of the United States in Mitchell v. Forsyth.

[00:33:04] Speaker 00:
It's not some assertion of general separation of powers concerns as the appellants seek to use it today.

[00:33:10] Speaker 00:
And I think the Mitchell v. Forsythe opinion is instructive because going through the collateral order analysis, it's clear that that analysis is not transferable to the Bivens context.

[00:33:22] Speaker 00:
For these reasons and those asserted in our brief, we request that this court dismiss this appeal.

[00:33:26] Speaker 00:
Thank you.

[00:33:27] Speaker 02:
Thank you, counsel.

[00:33:28] Speaker 02:
Your arguments were helpful in framing the issues.

[00:33:30] Speaker 02:
Counsel's excused and the case is submitted.