Mohamed v. Jones


       Federal appellate jurisdiction is generally limited to appeals from “final”

 district court orders,

, and orders certified for interlocutory appeal,



       3
         The BOP defendants also abandoned their qualified immunity arguments on
 the deliberate indifference claims.

                                            6
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id.

 § 1292(b). Section 1291 provides that “[t]he courts of appeals . . . shall have

 jurisdiction of appeals from all final decisions of the district courts of the United

 States.” This final judgment rule “preserv[es] respect for trial judges, reduc[es] the

 ability of litigants to harass each other, and enhanc[es] the efficient administration of

 justice.” United States v. Martinez-Haro,

645 F.3d 1228, 1231

 (10th Cir. 2011)

 (citing Flanagan v. United States,

465 U.S. 259, 263-64

 (1984)).

              ii. Cohen rationale and test

       In 1949, the Supreme Court recognized the collateral order doctrine in Cohen

 v. Beneficial Industrial Loan Corp.,

337 U.S. 541

 (1949). The collateral order

 doctrine allows for immediate appeal of some non-final orders under § 1291. See

 Will v. Hallock,

546 U.S. 345, 349

 (2006); Osage Tribal Council ex rel. Osage Tribe

 of Indians v. U.S. Dep’t of Lab.,

187 F.3d 1174, 1179

 (10th Cir. 1999). The doctrine

 gives § 1291’s finality requirement a “practical rather than a technical construction.”

 Cohen,

337 U.S. at 546

. Appealable collateral orders “are said to be ‘too important

 to be denied review and too independent of the cause itself’ to justify waiting out the

 rest of the adjudication.” Los Lobos Renewable Power, LLC v. Americulture, Inc.,

885 F.3d 659, 664

 (10th Cir. 2018) (quoting Cohen,

337 U.S. at 546

).

       For orders to be appealed before final judgment, they must (1) be

 “conclusive”; (2) “resolve important questions separate from the merits”; and (3) be

 “effectively unreviewable on appeal from . . . final judgment.” Mohawk Indus., Inc.

 v. Carpenter,

558 U.S. 100, 106

 (2009) (quotations omitted); see Cohen,

337 U.S. at 545-47

. These are referred to as the “Cohen factors.” See, e.g., Osage Tribal

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 Council,

187 F.3d at 1180

. For the third factor, “the decisive consideration is

 whether delaying review until the entry of final judgment ‘would imperil a

 substantial public interest’ or ‘some particular value of a high order.’” Mohawk,

558 U.S. at 107

 (quoting Will,

546 U.S. at 352-53

).

       In applying the Cohen test, courts consider “the entire category to which a

 claim belongs” instead of “engag[ing] in an individualized jurisdictional inquiry” that

 would ask whether “the litigation at hand might be speeded, or a particular injustice

 averted.”

 (alterations and quotations omitted).

              iii. Cohen’s limited scope

       “[T]he Supreme Court has issued increasingly emphatic instructions that the

 class of cases capable of satisfying this ‘stringent’ test should be understood as

 ‘small,’ ‘modest,’ and ‘narrow.’” United States v. Wampler,

624 F.3d 1330, 1334


 (10th Cir. 2010) (quoting Digit. Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863, 868

 (1994); Swint v. Chambers Cnty. Comm’n,

514 U.S. 35, 42

 (1995); Will,

; Mohawk,

558 U.S. at 113

).

       The types of orders that fall under the collateral order doctrine “require only

 two hands to count.” Belya v. Kapral,

45 F.4th 621

, 629 n.5 (2d Cir. 2022), cert.

 denied sub nom. Synod of Bishops of the Russian Orthodox Church Outside of Russ.

 v. Belya,

143 S. Ct. 2609

 (2023). The first and larger category includes

 “constitutionally based immunities,” Los Lobos Renewable Power, 885 F.3d at 664—

 orders denying qualified, absolute, tribal, Eleventh Amendment, or another



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 immunity.4 The second category includes mostly orders that would be moot

 following final judgment.5 The Supreme Court has declined to extend collateral

 order treatment to a wide variety of other orders.6


       4
         Will,

 (collecting cases); Osage Tribal Council,

187 F.3d at 1179

 (denials of tribal sovereign immunity); Osborn v. Haley,

549 U.S. 225, 238

 (2007) (denials of immunity under the Westfall Act); P.R. Aqueduct & Sewer Auth. v.
 Metcalf & Eddy, Inc.,

506 U.S. 139, 141

 (1993) (denials of Eleventh Amendment
 immunity); Mitchell v. Forsyth,

472 U.S. 511, 530

 (1985) (denials of qualified
 immunity, to the extent they turn on an issue of law); Nixon v. Fitzgerald,

457 U.S. 731, 742

 (1982) (denials of absolute Presidential immunity); Helstoski v. Meanor,

442 U.S. 500, 508

 (1979) (denials of Speech or Debate Clause immunity in a
 criminal case); Abney v. United States,

431 U.S. 651, 662

 (1977) (adverse double
 jeopardy orders); Nixon,

457 U.S. at 742

 (describing Abney as addressing a “claim of
 immunity under [the] Double Jeopardy Clause”).
       5
         Shoop v. Twyford,

142 S. Ct. 2037

, 2043 n.1 (2022) (prisoner-transport
 orders under the All Writs Act); Sell v. United States,

539 U.S. 166, 177

 (2003)
 (orders permitting the government to force a defendant to take antipsychotic drugs to
 render him competent to stand trial); Moses H. Cone Mem’l Hosp. v. Mercury Constr.
 Corp.,

460 U.S. 1, 10-12

 (1983) (stay orders when their sole purpose and effect is to
 surrender jurisdiction of federal suit to state court); Quackenbush v. Allstate Ins. Co.,

517 U.S. 706, 715

 (1996) (same); Eisen v. Carlisle & Jacquelin,

417 U.S. 156, 170-72

 (1974) (orders allocating the costs of providing notice to class members);
 Stack v. Boyle,

342 U.S. 1, 6

 (1951) (orders denying motions to reduce bail); Swift &
 Co. Packers v. Compania Colombiana del Caribe, S.A.,

339 U.S. 684, 688-89

 (1950)
 (orders imposing an attachment of a vessel in admiralty).
       6
         Microsoft Corp. v. Baker,

582 U.S. 23, 26

 (2017) (stipulated-to voluntary
 dismissals with prejudice of orders denying class certification); Mohawk,

558 U.S. at 103

 (orders to disclose confidential materials based on waiver of attorney-client
 privilege); Will,

546 U.S. at 347

 (refusals to apply FTCA judgment bar);
 Cunningham v. Hamilton County,

527 U.S. 198, 200

 (1999) (attorney sanctions under
 Federal Rule of Civil Procedure 37(a)(4)); Johnson v. Jones,

515 U.S. 304, 307

 (1995) (denials of qualified immunity at summary judgment based on fact-related
 disputes); Swint,

514 U.S. at 38

 (denials of motions for summary judgment on
 non-qualified-immunity issue without pendent jurisdiction); Midland Asphalt Corp.
 v. United States,

489 U.S. 794, 799

 (1989) (denials of motions to dismiss an
 indictment for violation of Federal Rule of Criminal Procedure 6(e)); Lauro Lines

                                            9
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        b. Bivens doctrine

        In

42 U.S.C. § 1983

, Congress created a damages action for deprivation of

  federal rights by officials acting under color of state law.7 But “Congress did not

  provide a specific damages remedy for plaintiffs whose constitutional rights were

  violated by agents of the Federal Government.” Ziglar v. Abbasi,

582 U.S. 120, 130


  (2017). In 1971, the Supreme Court in Bivens “recognized for the first time an

  implied private action for damages against federal officers alleged to have violated a




  s.r.l. v. Chasser,

490 U.S. 495

, 496 (1989) (denials of motions to dismiss damages
  actions based on contractual forum-selection clauses); Van Cauwenberghe v. Biard,

486 U.S. 517, 527

 (1988) (denials of immunity from civil process);

id.

 (denials of
  forum non conveniens dismissal); Gulfstream Aerospace Corp. v. Mayacamas Corp.,

485 U.S. 271, 278

 (1988) (denials of Colorado River motions); Stringfellow v.
  Concerned Neighbors in Action,

480 U.S. 370, 372, 377

 (1987) (orders granting
  permissive intervention but denying intervention as of right); Richardson-Merrell,
  Inc. v. Koller,

472 U.S. 424, 426

 (1985) (orders disqualifying counsel in a civil case);
  Flanagan,

465 U.S. at 260

 (orders disqualifying defense counsel in a criminal
  prosecution); United States v. Hollywood Motor Car Co.,

458 U.S. 263, 264

 (1982)
  (denials of motion to dismiss indictment for prosecutorial vindictiveness); Firestone
  Tire & Rubber Co. v. Risjord,

449 U.S. 368, 369-70

 (1981) (denials of motions to
  disqualify counsel for the opposing party in a civil case); Coopers & Lybrand v.
  Livesay,

437 U.S. 463, 469

 (1978) (orders denying class certification), superseded by
  F.R.C.P. 23(f); United States v. MacDonald,

435 U.S. 850, 861

 (1978) (denials of
  speedy trial motions).
        7
            Section 1983 provides:
                 Every person who, under color of any statute, ordinance,
                 regulation, custom, or usage, of any State or Territory or the
                 District of Columbia, subjects, or causes to be subjected, any
                 citizen of the United States or other person within the
                 jurisdiction thereof to the deprivation of any rights,
                 privileges, or immunities secured by the Constitution and
                 laws, shall be liable to the party injured in an action at law,
                 suit in equity, or other proper proceeding for redress . . . .

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  citizen’s constitutional rights.” Ashcroft v. Iqbal,

556 U.S. 662, 675

 (2009)

  (quotations omitted). It held that officials acting under color of federal law may be

  liable for money damages for using excessive force in conducting a warrantless

  search and arrest in violation of the Fourth Amendment. Bivens,

403 U.S. at 397

;

  Abbasi,

582 U.S. at 130-31

.

        The Supreme Court has since “recognized . . . an implied cause of action in

  [only] two cases involving other constitutional violations,” both in the decade after

  Bivens. Abbasi, 582 U.S. at 131. In Davis v. Passman,

442 U.S. 228

 (1979), the

  Court allowed a Bivens claim against a Member of Congress for a congressional

  staffer’s Fifth Amendment Due Process gender discrimination claim. In Carlson v.

  Green,

446 U.S. 14

 (1980), the Court said a prisoner could sue federal prison

  officials under Bivens for inadequate medical care in violation of the Eighth

  Amendment. After these two cases, “the arguments for recognizing implied causes

  of action for damages began to lose their force.” Abbasi,

582 U.S. at 132

. Indeed,

  the Supreme Court has not done so since then.

        “[E]xpanding the Bivens remedy is now a disfavored judicial activity.”

Id. at 135

 (quotations omitted). “[A]lmost any difference between the case at hand

  and the three [Bivens] precedents can justify rejecting a cause of action.” Logsdon v.

  U.S. Marshal Serv.,

91 F.4th 1352, 1355

 (10th Cir. 2024), petition for rehr’g denied

  (Apr. 5, 2024). A court may also deny a Bivens remedy when “the Government

  already has provided alternative remedies that protect plaintiffs.” Silva,

45 F.4th at 1141

 (quoting Egbert,

142 S. Ct. at 1804

). We recently declined to extend Bivens

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  to an Eighth Amendment excessive force claim in Silva,

id.,

 and to a Fourth

  Amendment excessive force claim against Deputy U.S. Marshals in Logsdon,

91 F.4th at 1355-56

.

     Relevant Supreme Court Cases

        Several Supreme Court cases have addressed Bivens extension orders or

  related issues on interlocutory appeal, but none have allowed interlocutory appellate

  review for a Bivens-only appeal.

        a. Hartman v. Moore,

 (2006)

        In Hartman, the plaintiff brought “a Bivens action against criminal

  investigators for inducing prosecution in retaliation for speech.”

547 U.S. at 252

.

  The defendants, federal officials sued in their individual capacities, moved for

  summary judgment based on qualified immunity “because the underlying criminal

  charges were supported by probable cause.”

Id. at 255

. The district court denied the

  motion, and the D.C. Circuit affirmed on interlocutory appeal.


        The defendants petitioned for certiorari, arguing that (1) the complaint had to

  allege an absence of probable cause to state a Bivens claim and (2) they were entitled

  to qualified immunity. See Pet. for Certiorari at *I, Hartman,


  (No. 04-1495),

2005 WL 1123566

. The parties disputed whether the Supreme Court

  had interlocutory jurisdiction to consider the elements of a Bivens claim. Compare

  Br. for Resp. at *36-39, Hartman,

 (No. 04-1495),

2005 WL 2653949

,

  with Reply Br. for Pets. at *14-15, Hartman,

 (No. 04-1495),

2005 WL 3118783

. The Court had previously recognized that the collateral order doctrine

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  permits interlocutory appeal of denials of qualified immunity, see Mitchell v.

  Forsyth,

472 U.S. 511, 530

 (1985), but it had not discussed jurisdiction over Bivens

  issues on interlocutory appeal.

        The Court resolved the case without reaching qualified immunity, holding that

  “want of probable cause must be alleged and proven” to “state[] an actionable

  violation” under the Bivens theory presented. Hartman,

547 U.S. at 252

. It justified

  resolving only the Bivens issue because it “d[id] not go beyond a definition of an

  element of the tort, [which was] directly implicated by the defense of qualified

  immunity and properly before [the Court] on interlocutory appeal.”

 at 257 n.5.

        b. Wilkie v. Robbins,

551 U.S. 537

 (2007)

        In Wilkie, the plaintiff brought a Bivens claim for violations of his Fifth

  Amendment rights.

551 U.S. at 548

. The federal defendants moved for dismissal

  and summary judgment based on qualified immunity, and the district court denied

  both motions.

 On interlocutory appeal, this court held we had jurisdiction under

  the collateral order doctrine to consider the summary judgment denial because it was

  premised on a denial of qualified immunity, and we affirmed. Robbins v. Wilkie,

433 F.3d 755, 761-64

 (10th Cir. 2006), rev’d and remanded,

551 U.S. 537

, vacated,

497 F.3d 1122

 (10th Cir. 2007) (mem.).

        The Supreme Court granted certiorari, held it had interlocutory jurisdiction,

  and reversed. It held that Bivens did not give the plaintiff a cause of action and

  “there [wa]s no reason to enquire further into . . . the asserted defense of qualified

  immunity.”

551 U.S. at 567

. The Court justified addressing the Bivens issue on

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  interlocutory review based on Hartman’s “reasoning”—that “the definition of an

  element of the asserted cause of action was ‘directly implicated by the defense of

  qualified immunity and properly before [it] on interlocutory appeal’”—“applie[d] to

  the recognition of the entire cause of action.”

 at 549 n.4 (quoting Hartman,

 n.5).8

        c. Will v. Hallock,

546 U.S. 345

 (2006)

        Although Will did not concern a Bivens extension order, its discussion of

  whether a district court’s order refusing to apply the FTCA’s judgment bar was

  appealable under the collateral order doctrine is relevant here. The plaintiff in Will

  brought an FTCA claim against the United States and, in a separate action, a Bivens

  claim against U.S. Customs Service agents for damage to her property from a search.

546 U.S. at 347-48

. The district court dismissed the first suit. In the second

  proceeding, the agents sought to enforce the FTCA’s judgment bar, which precludes

  “any action by the [plaintiff], by reason of the same subject matter, against the

  employee of the government whose act or omission gave rise to the claim” if a court

  enters “judgment in an action under [the FTCA].”

28 U.S.C. § 2676

; see Will,

546 U.S. at 348

. The district court denied the motion. Will,

546 U.S. at 348-49

. The


        8
           The Court commented on these decisions in Iqbal, where it similarly looked to
  Hartman to hold that “the sufficiency of respondent’s pleadings [wa]s both ‘inextricably
  intertwined with’” “and ‘directly implicated by’ the qualified-immunity defense.”

556 U.S. at 673

 (first quoting Swint,

514 U.S. at 51

, then quoting Hartman,

551 U.S. at 257

 n.5). The Iqbal Court assumed without deciding that the respondent’s First
  Amendment claim was actionable as a Bivens claim and did not discuss Bivens in its
  jurisdictional analysis.

Id. at 675

14
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Second Circuit “affirmed, after first finding jurisdiction under the collateral order

doctrine.” Id. at 349.

The Supreme Court vacated the Second Circuit’s decision for lack of appellate

jurisdiction, holding that orders “refus[ing] to apply the [FTCA’s] judgment bar” are

not appealable under the collateral order doctrine. Id. at 347, 349. The Court relied

on the third Cohen factor—whether the order would be “effectively unreviewable”

absent immediate appeal. Id. at 351; see id. at 351-54. It said no, explaining that

“effectively unreviewable” cannot include “any order denying a claim of right to

prevail without trial” because “this generalization is too easy to be sound and, if

accepted, would leave . . . § 1291 in tatters.” Id. at 351. The Court instead clarified

that “only some orders denying an asserted right to avoid the burdens of trial” are

“effectively” unreviewable. Id. (quotations omitted). It noted it had previously

allowed collateral order review when “some particular value of a high order was

marshaled in support of the interest in avoiding trial: honoring the separation of

powers, preserving the efficiency of government and the initiative of its officials,

respecting a State’s dignitary interest, and mitigating the government’s advantage

over the individual.” Id. at 352-53.

The Court then reasoned that the FTCA’s judgment bar did not implicate any

unique public interest and was “essential[ly] procedural,” id. at 354, with “no . . .

greater importance than the typical defense of claim preclusion,” id. at 355. It also

anticipated in dicta the issue raised here, suggesting that an interlocutory appeal of a

Bivens extension order would not fit the Cohen test:

15
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It is not the preservation of initiative but the avoidance of
litigation for its own sake that supports the judgment bar, and
if simply abbreviating litigation troublesome to
Government employees were important enough for Cohen
treatment, collateral order appeal would be a matter of
right whenever . . . a federal officer lost [a motion to
dismiss] on a Bivens action, or a state official was in that
position in a case under

42 U.S.C. § 1983

, or Ex parte Young,

209 U.S. 123

 (1908). In effect,

 would fade
               out whenever the Government or an official lost an early
               round that could have stopped the fight.

  Id. at 353-54 (emphasis added) (the “Will dicta”).

     Other Circuit Courts

        Two other circuits have considered the issue we face here—whether district

  court orders extending Bivens are immediately appealable under the collateral order

  doctrine when a defendant fails to raise or abandons qualified immunity as a basis for

  appellate jurisdiction. Both held the collateral order doctrine does not extend to

  Bivens-only appeals. Himmelreich v. Fed. BOP,

5 F.4th 653

 (6th Cir. 2021); Graber

  v. Doe II,

59 F.4th 603

 (3d Cir. 2023), cert denied sub nom. Boresky v. Graber,

144 S. Ct. 681

 (2024) (mem.).9

        a. Himmelreich v. Federal BOP,

5 F.4th 653

 (6th Cir. 2021)

        Himmelreich was an interlocutory appeal from a Bivens extension order where

  the federal defendant failed to timely raise qualified immunity.

5 F.4th at 659

. The

  Sixth Circuit held that “[w]here a defendant has not appealed the denial of qualified


        9
         The Ninth and Eleventh Circuits are currently considering the same issue.
  Garraway v. Ciufo, No. 23-15482 (9th Cir.); Fleming v. FCI Tallahassee Warden,
  No. 23-10252 (11th Cir.).

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  immunity, the appellate court does not have jurisdiction under the collateral order

  doctrine to address an underlying claim.”

Id. at 661

. It first distinguished Hartman

  and Wilkie because in those cases, “the appellate courts already had jurisdiction over

  the appeals challenging the district courts’ denial of qualified immunity” and the

  Bivens issue was “directly implicated by [the] . . . denial of qualified immunity.”

Id. at 660

.

         The court then analyzed the Cohen factors. It assumed the first two factors

  were met and concluded the third—“effectively unreviewable”—was not.

Id. at 661-62

. It reasoned that the possibility of reversing a Bivens extension on

  interlocutory appeal “does not grant defendants an entitlement not to stand trial.”

Id. at 662

. It characterized Will as holding that the “order allowing the Bivens claim

  to proceed [without enforcing the FTCA’s judgment bar] was not effectively

  unreviewable because the government did not have an absolute right to avoid trial.”

Id. at 663

. It quoted the Will dicta and concluded that “Will does not recognize an

  absolute right for [the defendant] to avoid trial.”

Id.


         b. Graber v. Doe II,

59 F.4th 603

 (3d Cir. 2023)

         In Graber, the Third Circuit held it could not review a Bivens extension under

  the collateral order doctrine when the federal defendant had waived his challenge to

  the district court’s Rule 12(b)(6) qualified immunity ruling.

59 F.4th at 607-08

.

         The court determined that a Bivens extension order did not meet the third

  Cohen factor.

Id. at 608

. First, it reasoned that Bivens “is not an immunity

  doctrine,”

id. at 609

, and although the “effectively unreviewable” standard is not

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  limited to immunity doctrines, it encompasses only rights that would be “irretrievably

  lost” or “moot following a final judgment,”

id.

 at 608 n.9 (quotations omitted).

  Because Bivens claims do “not become moot following a final judgment,” they are

  not “effectively unreviewable.”

Id.

 Second, the court found the Will dicta “highly

  persuasive.”

Id.

 at 609 & n.10 (quotations omitted). Third, “[t]he availability of”

  certified appeals under § 1292(b) “counsel[ed] against” allowing the appeal under

  § 1291. Id. at 610 n.14.10

        The Supreme Court denied certiorari. Boresky v. Graber,

144 S. Ct. 681


  (2024) (mem.).

                                     II. DISCUSSION

        The BOP defendants bear the burden of establishing our appellate jurisdiction.

  Cummings v. Dean,

913 F.3d 1227, 1235

 (10th Cir. 2019). They must convince us to

  create an exception to § 1291’s final judgment rule for all district court orders

  extending a Bivens remedy—something that neither the Supreme Court nor any

  circuit court has done before. Although the BOP defendants’ arguments are not

  meritless, they have not met their burden. We conclude they have not shown that


        10
            Judge Hardiman dissented. He argued that “immunity is neither sufficient
  nor necessary” to satisfy the third Cohen factor.

59 F.4th at 611

 (Hardiman, J.,
  dissenting). He characterized the Will dicta as “drive-by dictum” and contended that
  Bivens extension orders are more important than the FTCA’s judgment bar and are
  not “‘essential[ly] procedural.’”

Id.

 at 612 (quoting Will,

546 U.S. at 354

). Judge
  Hardiman would have found Bivens extension orders meet the third Cohen factor
  because “they imperil a ‘particular value of a high order’ and ‘substantial public
  interest’”—namely, separation of powers.

Id.

 at 614 (quoting Will,

546 U.S. at 352-53

).

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  Bivens extension orders are effectively unreviewable after final judgment11 and

  therefore have not satisfied the third Cohen factor.12 We base our holding on the

  following considerations:

        A. The BOP defendants have a heavy burden to show expansion of the
           collateral order doctrine is warranted.

               1. The exception to finality is narrow.

               2. Other avenues exist for interlocutory review.

               3. Congress and the Supreme Court prefer rulemaking to judicial
                  expansion of the doctrine.



        11
           The parties seem to agree that Bivens extension orders are reviewable after
  final judgment, but they disagree about whether they are effectively unreviewable.
  As Mr. Mohamed notes, “the Supreme Court itself has reviewed the availability of a
  Bivens remedy after trial.” Suppl. Aplee. Br. at 24 (citing FDIC v. Meyer,

510 U.S. 471, 474-75, 486

 (1994)). In that case, the plaintiff brought a Bivens claim and
  prevailed at trial, Meyer,

510 U.S. at 474

, and the Supreme Court rejected the Bivens
  extension on appeal from final judgment,

id. at 486

. The Court also rejected a Bivens
  extension after final judgment in Egbert. 142. S. Ct. at 1802.
          Both Meyer and Egbert show that, like district court denials of qualified
  immunity, Bivens extension orders are not “unreviewable” on appeal from final
  judgment. The question remains whether they implicate public interests that make
  them “effectively unreviewable” under the third Cohen factor.
        12
            We are also not convinced the second Cohen factor—whether the Bivens
  extension question is separate from the merits—is met. “The Supreme Court has
  repeatedly cautioned that the collateral-order doctrine requires ‘complete separation’
  from the merits.” Kell v. Benzon,

925 F.3d 448, 455

 (10th Cir. 2019) (quotations
  omitted). And “[t]he question of whether the plaintiff has a cognizable cause of
  action (and what that cause of action might be) is not a question separate from the
  merits; it is the merits.” Kilburn v. Socialist People’s Libyan Arab Jamahiriya,

376 F.3d 1123, 1134

 (D.C. Cir. 2004) (citing Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 89

 (1998)); see also Cohen,

337 U.S. at 546-47

(finding an order
“appealable because it [wa]s a final disposition of a claimed right which is not an
ingredient of the cause of action and does not require consideration with it”
(emphasis added)).

19
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B. The BOP defendants have failed to meet their heavy burden.

1. Bivens extension orders are different from denials of qualified
immunity.

2. Separation of powers concerns about Bivens extension orders do not
necessarily satisfy the third Cohen factor, and expanding the
collateral order doctrine raises separation of powers concerns of its
own.

3. The Will dicta counsels against applying the collateral order doctrine
to Bivens extension orders.

C. The Supreme Court has never treated a Bivens extension order as an
independent basis for collateral order review.

D. We are reluctant to create a circuit split.

A. The Heavy Burden to Warrant Collateral Order Doctrine Expansion

As the following discussion shows, the BOP defendants have a heavy burden

to convince us that judicial expansion of the collateral order doctrine is warranted.

Cohen’s Narrow Exception

We must heed the Supreme Court’s “increasingly emphatic instructions that

the class of cases capable of satisfying th[e] ‘stringent’ [Cohen] test should be

understood as ‘small,’ ‘modest,’ and ‘narrow.’” Wampler,

624 F.3d at 1334

 (quoting

  Digit. Equip.,

511 U.S. at 868

; Swint,

514 U.S. at 42

; Will,

; Mohawk,

558 U.S. at 113

); see also Tucker v. Faith Bible Chapel Int’l,

36 F.4th 1021, 1033


  (10th Cir. 2022) (“Immediate appeals under the collateral order doctrine are

  disfavored; they ‘are the exception, not the rule.’” (quoting Johnson v. Jones,

515 U.S. 304, 309

 (1995))), cert. denied,

143 S. Ct. 2608

 (2023) (mem.).




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         In Will, the Court reiterated that it “ha[s] meant what [it] ha[s] said.”

. A few years after Will, the Mohawk Court again declined to expand the

  collateral order doctrine and emphasized the need to keep the doctrine exceptionally

  narrow.

558 U.S. at 113

. Mohawk commentators sounded the death knell for Cohen

  expansion. See Erwin Chemerinsky, Court Keeps Tight Limits on Interlocutory

  Review, 46 Trial 52, 54 (2010) (“[Mohawk] shows that little, if anything, will be

  found to fit within the collateral order exception that the Court recognized in

  Cohen.”); James E. Pfander, Iqbal, Bivens, and the Role of Judge-Made Law in

  Constitutional Litigation, 114 Penn. St. L. Rev. 1387, 1404 (2010) (“[T]he Court [in

  Mohawk] . . . suggested that it would no longer adopt judge-made expansions of the

  collateral order doctrine.”).

         In the 15 years since Mohawk, only once has the Court applied the collateral

  order doctrine to a new situation, one entirely unlike a Bivens extension order. Shoop

  v. Twyford,

142 S. Ct. 2037

, 2043 n.1 (2022) (extending the collateral order doctrine

  to prisoner transport orders under the All Writs Act); see also supra notes 4-6. The

  5-4 decision provided only minimal analysis in a footnote and drew sharp dissents.

  See Shoop,

142 S. Ct. at 2047-48

 (Breyer, J., dissenting);

id. at 2050-51

 (Gorsuch, J.,

  dissenting).

     Alternatives

         Federal defendants have alternative means to pursue interlocutory review of a

  district court’s Bivens extension order without seeking to expand the collateral order



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  doctrine. These options—qualified immunity interlocutory appeals and

(b)—reinforce the Supreme Court’s call for a narrow collateral order doctrine.

        Federal defendants may combine a challenge to a Bivens extension order with

  an interlocutory challenge to a denial of qualified immunity. As we said in Big Cats

  of Serenity Springs, Inc. v. Rhodes,

843 F.3d 853

 (10th Cir. 2016), “[T]he court has

  jurisdiction over the question of whether a Bivens remedy exists [when] it [i]s

  sufficiently implicated by the qualified immunity defense.”

 at 856 (citing Wilkie,

n.4). Here, PA Osagie initially appealed the denial of qualified

immunity in addition to the Bivens extension component of the district court’s order,

but he abandoned that argument. The BOP defendants could still raise qualified

immunity at summary judgment and appeal any denial of that issue along with a

challenge to a Bivens extension.

The BOP defendants argue that having to tether Bivens extension challenges to

interlocutory appeals of qualified immunity denials “would incentivize defendants to

raise qualified-immunity arguments that are unlikely to succeed on appeal solely to

provide jurisdiction for a stronger appeal concerning the allowance of a Bivens

remedy.” Suppl. Aplt. Reply Br. at 3-4. This concern is overblown, as the plethora

of interlocutory appeals of qualified immunity denials indicates.13 And if the

13
About 40 percent of all circuit court qualified immunity appeals from 2004
to 2015 (excluding 2009) were interlocutory from denials of qualified immunity.
Alexander A. Reinert, Asymmetric Review of Qualified Immunity Appeals, 20 J.
Empirical Legal Stud. 4, 6 n.8, 22 & n.48, 57 (2023).

22
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government defendant decides a non-frivolous qualified immunity defense is not

possible in a given case, it may pursue an appeal under § 1292(b).

In § 1292(b), Congress provided for interlocutory review of a district court

order “not otherwise appealable” when there are “controlling question[s] of law as to

which there is substantial ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate termination of the

litigation.” The Supreme Court has repeatedly pointed to § 1292(b) as a reason to

limit expansion of the collateral order doctrine. In Van Cauwenberghe v. Biard,

486 U.S. 517

 (1988), for example, the Court said, “Our conclusion that the denial of

  a motion to dismiss on the ground of forum non conveniens is not appealable under

  § 1291 is fortified by the availability of interlocutory review pursuant to

(b).” Id. at 529; see also Digit. Equip.,

511 U.S. at 883

 (“In preserving the

  strict limitations on review as of right under § 1291, our holding should cause no

  dismay, for the law is not without its safety valve[:] . . . § 1292(b) of Title 28.”);

  Mohawk,

558 U.S. at 114

 (“We expect that the combination of standard postjudgment

  appeals, § 1292(b) appeals, mandamus, and contempt appeals will continue to

  provide adequate protection to litigants . . . .”).14


         14
            As the dissent notes, § 1292(b) applies to non-appealable orders, Dissent at 12
  n.8, but that is our point—one reason to deny Cohen review to a Bivens extension order is
  that § 1292(b) is an interlocutory alternative. The dissent ignores the Supreme Court’s
  repeated invocation of § 1292(b) as a reason to reject Cohen treatment. And given the
  Supreme Court’s refusals to recognize new Bivens claims, federal defendants should not
  have trouble showing a “substantial ground for difference of opinion” when a district
  court has extended Bivens in a given case.

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        Adding yet another avenue for interlocutory review “risks additional, and

  unnecessary, appellate court work” that might “turn[] out to be unnecessary” if these

  alternatives are used or the litigation is simply allowed to continue. Johnson,

515 U.S. at 309

.15

     Rulemaking Preference

        In 1990, Congress enacted “legislation designating rulemaking, ‘not expansion

  by court decision,’ as the preferred means for determining whether and when

  prejudgment orders should be immediately appealable,” which adds “special force” to

  the Court’s “admonition” to keep the collateral order doctrine narrow and selective.

  Mohawk,

558 U.S. at 113

 (quoting Swint,

514 U.S. at 48

).

        The collateral order doctrine’s history leading to congressional action is

  instructive. Cohen expansion mostly began “in the early 1960s, . . . culminating in

  the 1985 decision of Mitchell,” which extended the doctrine to include denials of

  qualified immunity. Lloyd C. Anderson, The Collateral Order Doctrine: A New

  “Serbonian Bog” and Four Proposals for Reform,

46 Drake L. Rev. 539

, 540 (1998).

  Mitchell was seen as “something of a departure from established doctrine.” Pfander,


        15
           We also note that Bivens claims are often accompanied—as in this case—by
  FTCA claims. Because we apply the FTCA’s judgment bar to claims within the same
  action, Est. of Trentadue ex rel. Aguilar v. United States,

397 F.3d 840, 859

 (10th
  Cir. 2005), resolution of an FTCA claim in the district court may obviate the need for
  appeal of a related Bivens claim. Because we “must apply the collateral order
  doctrine with an eye towards preserving judicial economy and avoiding the
  harassment and cost of a succession of separate appeals from the various rulings in a
  single case,” Tucker,

36 F.4th at 1034

 (quotations omitted), this is yet another reason
  to decline to extend the collateral order doctrine here.

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  supra, at 1397. Concerns mounted about doctrinal inconsistency and the

  “congestion, delay, and expense” involved in litigating further expansions.

  Anderson, supra, at 540-51; Bryan Lammon, Finality, Appealability, and the Scope

  of Interlocutory Review,

93 Wash. L. Rev. 1809

, 1842 n.180 (2018) (calling the

  collateral order doctrine “the most maligned rule of federal appellate jurisdiction”).

        In response, Congress created a Federal Courts Study Committee to consider

  the issue. Anderson, supra, at 540-41. The Committee recommended the Supreme

  Court define the collateral order doctrine using rulemaking instead of applying Cohen

  on a case-by-case basis. Staff of Fed. Cts. Study Comm., Jud. Conf. of the U.S.,

  Report of the Federal Courts Study Committee 95 (1990).

        Based on the Committee’s recommendation, Anderson, supra, at 541,

  Congress recognized rulemaking as the preferred process to define the collateral

  order doctrine. First, in 1990, it amended the Rules Enabling Act to authorize the

  Supreme Court to adopt rules “defin[ing] when . . . a district court [order] is final for

  the purposes of appeal under section 1291.” Federal Courts Study Committee

  Implementation Act of 1990,

Pub. L. No. 101-650, § 315

104 Stat. 5104

, 5115

  (codified at

28 U.S.C. § 2072

(c)). Second, in 1992, it empowered the Court to

  “prescribe rules, in accordance with section 2072 . . . , to provide for an

  [interlocutory] appeal . . . that is not otherwise provided for under [§ 1292].” Federal

  Courts Administration Act of 1992,

Pub. L. No. 102-572, § 101

106 Stat. 4506

, 4506

  (codified at

(e)); see also Mohawk,

558 U.S. at 113-14

.



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        The Supreme Court declared that Congress’s choice to prefer rulemaking to

  judicial decision in this area “warrant[s] the Judiciary’s full respect.” Mohawk,

558 U.S. at 114

 (alterations omitted) (quoting Swint,

514 U.S. at 48

). In Wampler, we

  said that “[o]ut of deference to the rubric Congress has created, . . . any request for

  expansion of the Cohen doctrine should be directed to the rules committee, not this

  court.”

624 F.3d at 1338

. The Mohawk Court suggested that rulemaking may be the

  only way to expand the collateral order doctrine: “Any further avenue for immediate

  appeal[s]”—beyond “standard postjudgment appeals, § 1292(b) appeals, mandamus,

  and contempt appeals”—“should be furnished, if at all, through rulemaking, with the

  opportunity for full airing it provides.”

558 U.S. at 114

.16 It described case-by-case

  expansion of Cohen as “the blunt, categorical instrument of § 1291 collateral order

  appeal.” Id. at 112 (quotations omitted).

        Justice Thomas’s Mohawk concurrence underscored that “Congress, which

  holds the constitutional reins in this area, has determined that such value judgments

  are better left to the ‘collective experience of bench and bar’ and the ‘opportunity for

  full airing’ that rulemaking provides.” Id. at 118-19 (Thomas, J., concurring in part)

  (quoting Mohawk,

558 U.S. at 114

 (majority opinion)). He also observed that courts

  make case-by-case determinations and are not positioned to “subordinate the realities


        16
           See also Microsoft Corp.,

582 U.S. at 39-40

 (denying Cohen treatment
  because decisions about finality “are to come from rulemaking, . . . not judicial
  decisions in particular controversies or inventive litigation ploys”). But see Shoop,

142 S. Ct. at 2043

 n.1 (expanding the collateral order doctrine through judicial
  decision).

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  of each case . . . to generalized conclusions about the ‘likely’ costs and benefits of

  allowing an exception to the final judgment rule in an entire ‘class of cases.’”

  Id. at 118.

         Here, the BOP defendants ask us to write another exception into § 1291 in

  tension with a congressional enactment and in conflict with the expressed preference

  of two constitutional branches—Congress and the Supreme Court—for rulemaking

  over case-by-case creations of Cohen exceptions. We decline to do so.

                B. The BOP Defendants Have Failed to Meet Their Burden

         The BOP defendants have not shown that Bivens extension orders are

  effectively unreviewable—the third Cohen factor. As noted above, “the decisive

  consideration is whether delaying review until the entry of final judgment ‘would

  imperil a substantial public interest’ or ‘some particular value of a high order.’”

  Id. at 107 (majority opinion) (quoting Will,

546 U.S. at 352-53

). Will explained that

  prior Supreme Court cases had “marshaled” values including “honoring the

  separation of powers, preserving the efficiency of government and the initiative of its

  officials, respecting a State’s dignitary interest, and mitigating the government’s

  advantage over the individual.”

546 U.S. at 352-53

.

         The BOP defendants invoke two of those values. First, they argue that

  interlocutory appeals of Bivens extension orders, like appeals of qualified immunity

  denials, would serve government efficiency and initiative. Second, they contend

  such appeals would reduce separation of powers concerns. We are not persuaded and

  adhere to the Will dicta.

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     Bivens, Qualified Immunity, Efficiency, and Initiative

         The BOP defendants argue we should expand Cohen because “Bivens-

  extension orders raise similar concerns for collateral-order purposes” as “orders

  denying qualified immunity”: “‘preserving the efficiency of government . . . and the

  initiative of its officials.’” Suppl. Aplt. Reply Br. at 4-5 (quoting Will,

546 U.S. at 352

). But the differences between a qualified immunity affirmative defense and a

  Bivens claim undermine this argument.

         a. Efficiency

         The BOP defendants’ argument that we should allow immediate appeal of the

  Bivens extension order to promote government efficiency proves too much. They

  contend that subjecting them to trial would waste resources. But that is far from clear.

         First, expanding the collateral order doctrine to Bivens extension orders would

  undermine the efficiency rationale underlying the final judgment rule: “Permitting

  piecemeal, prejudgment appeals . . . undermines efficient judicial administration and

  encroaches upon the prerogatives of district court judges, who play a special role in

  managing ongoing litigation.” Mohawk,

558 U.S. at 106

 (quotations omitted).

         Second, and relatedly, the BOP defendants’ argument seems premised on an

  assumption that the district court improvidently extended Bivens to cover Mr. Mohamed’s

  claims and that prompt reversal therefore should be available. But the relative merits of

  the issue proposed for interlocutory review should not affect the collateral order doctrine

  analysis. As the Supreme Court instructed in Mohawk, courts applying the Cohen test

  should not “engage in an individualized jurisdictional inquiry” with an eye toward

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  whether “the litigation at hand might be speeded, or a particular injustice averted.”

Id. at 107

 (alterations and quotations omitted). Thus, even if the BOP defendants are

  correct that the district court erred in extending Bivens, that is not a valid reason to

  expand Cohen and compromise § 1291’s avoidance of piecemeal appeals.

         Third, the BOP defendants’ argument could be deployed to seek interlocutory

  review of Rule 12(b)(6) dismissals of many types of claims against federal officials. The

  Supreme Court has warned us not to accept such arguments. See Digit. Equip.,

511 U.S. at 873

 (noting that failure to state a claim is insufficient for Cohen treatment).

         Fourth and finally, qualified immunity adequately “preserv[es] the efficiency of

  government,” Will,

546 U.S. at 352

, when a Bivens claim is brought against a federal

  official.

         b. Preservation of initiative

         Bivens extension orders do not implicate the same interest in preserving the

  initiative of government officials as qualified immunity because Bivens’s structure and

  purpose differ from qualified immunity’s.

                i. Structure

         Bivens is more analogous to § 1983 than to qualified immunity. When the

  Supreme Court decided Bivens, it created a claim for constitutional violations by federal

  officials. The Court “ha[s] described Bivens as a ‘more limited’ ‘federal analog’ to

  § 1983.” Hernandez v. Mesa (“Hernandez II”),

140 S. Ct. 735, 747

 (2020) (quoting

  Hartman,

547 U.S. at 254

 n.2). Both Bivens and § 1983 enable a plaintiff to sue a federal

  or state official, respectively, for a constitutional violation. The Bivens Court explained

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  that its implied cause of action derived from “the right of every individual to claim the

  protection of the laws, whenever he receives an injury.”

403 U.S. at 397

 (quoting

  Marbury v. Madison,

1 Cranch 137, 163

 (1803)). And unlike a Bivens claim, qualified

  immunity is an affirmative defense that may be asserted against either a Bivens or a

  § 1983 claim. See, e.g., Wilson v. Layne,

526 U.S. 603, 609

 (1999), abrogated on other

  grounds by Pearson v. Callahan,

555 U.S. 223

 (2009).

                ii. Purpose

         Bivens and qualified immunity serve distinct purposes. Qualified immunity’s

  underlying rationale is to preserve officer initiative by protecting officials from liability

  and trial. As the Supreme Court said in Mitchell, “The conception animating the

  qualified immunity doctrine . . . is that where an official’s duties legitimately require

  action in which clearly established rights are not implicated, the public interest may

  be better served by action taken with independence and without fear of

  consequences,” including “the general costs of subjecting officials to the risks of

  trial.” 472 U.S. at 525-26 (quotations omitted).

         In Will, the Court explained that qualified immunity appeals fit the collateral order

  doctrine because “the burden of trial is unjustified” where “the action was reasonable in

  light of the law as it was,” and that “[t]he nub of qualified immunity is the need to induce

  officials to show reasonable initiative when the relevant law is not clearly established.”

546 U.S. at 353

 (quotations omitted).

         In short, qualified immunity enables both Bivens and § 1983 defendants to do their

  jobs without unduly second-guessing their exposure to liability or trial. It gives

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  government officials “breathing room to make reasonable but mistaken judgments about

  open legal questions.” Ashcroft v. al-Kidd,

563 U.S. 731

, 743 (2011).

            By contrast, “[t]he purpose of Bivens is to deter individual federal officers . . .

  from committing constitutional violations.” Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 70

 (2001). Like § 1983, Bivens gives plaintiffs a chance to vindicate their constitutional

  rights.

            The BOP defendants argue that the risk of erroneous Bivens extension orders

  will sap their initiative unless they can challenge allowance of Bivens claims through

  an immediate appeal. See Aplt. Br. at 7 (“[E]xtending Bivens remedies to new

  contexts . . . entail[s] . . . ‘the risk that fear of personal monetary liability and

  harassing litigation will unduly inhibit officials in the discharge of their duties.’”

  (quoting Egbert,

142 S. Ct. at 1807

)). But federal defendants already have the

  qualified immunity defense, which addresses those very concerns.

            In Anderson v. Creighton,

483 U.S. 635

 (1987), the Supreme Court said its

  “cases have accommodated . . . conflicting concerns” about constitutional violations

  by government officials and “the risk that fear of personal monetary liability and

  harassing litigation will unduly inhibit officials in the discharge of their duties . . . by

  generally providing government officials performing discretionary functions with a

  qualified immunity.”

Id. at 638

. And as the Sixth Circuit said, “To the extent that

  defendants are concerned about litigating meritless cases, qualified immunity more

  than adequately protects government officials from the burdens of litigation.”

  Himmelreich,

5 F.4th at 662

.

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     Separation of Powers

        The BOP defendants argue that “recognizing a Bivens claim places great stress

  on the separation of powers.” Aplt. Br. at 35 (quoting Egbert,

142 S. Ct. at 1807

 n.3).17 Their abstract invocation of separation of powers falls short of what the

  Supreme Court requires to create a new category of interlocutory appeals in light of

  the countervailing considerations we identify here, including that expanding the

  collateral order doctrine in the face of § 1291’s final judgment rule raises separation

  of powers concerns.

        In Will, the Supreme Court made clear that “honoring the separation of

  powers,”

546 U.S. at 352

, does not mean that every kind of district court order that

  raises a separation of powers issue is effectively unreviewable after final judgment

  under the third Cohen factor. Will discussed Nixon v. Fitzgerald,

457 U.S. 731


  (1982), as its primary example of sufficiently weighty separation of powers concerns

  to justify interlocutory review. Will,

546 U.S. at 352

.

        A review of Nixon is instructive. A discharged Air Force employee sued

  former President Nixon seeking damages for official acts of alleged retaliation

  against the plaintiff, who “embarrass[ed] . . . his superiors” when he testified before


        17
            In Egbert, the district court “declined to extend a Bivens remedy to” the
  plaintiff’s First and Fourth Amendment Bivens claims, “and entered judgment.”
  142 S. Ct. at 1802. The plaintiff appealed, the court of appeals reversed, and the
  Supreme Court reversed, holding the district court properly declined to recognize a
  Bivens claim. Id. The appeals were not interlocutory, so the Court did not address
  whether separation of powers concerns called for expansion of the collateral order
  doctrine.

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  Congress about Defense Department cost overruns.

457 U.S. at 733-34

. The district

  court denied a motion for summary judgment, ruling that the former president was

  not entitled to absolute immunity.

Id. at 740-41

. The court of appeals refused to

  apply the collateral order doctrine and “dismissed summarily.”

Id. at 741

. The

  Supreme Court disagreed, exercised interlocutory review, and held the former

  president was entitled to absolute immunity from damages liability.

Id. at 758

. The

  Court said the collateral order doctrine applied because the case involved “absolute

  immunity,” a “serious and unsettled question,” and “the special solicitude due to

  claims alleging a threatened breach of essential Presidential prerogatives under the

  separation of powers.”

Id. at 742-43

 (quotations omitted). Further, the denial of

  absolute immunity “raise[d] unique risks to the effective functioning of government”

  “[b]ecause of the singular importance of the President’s duties.”

Id. at 751

.18

        Will said the Nixon Court allowed an immediate appeal because of “the

  compelling public ends rooted in the separation of powers that would be

  compromised by failing to allow immediate appeal.”

546 U.S. at 352

 (citations,

  alterations, and quotations omitted). Although Will left open the possibility of


        18
            In United States v. Nixon,

418 U.S. 683

 (1974), a precursor to Nixon v.
  Fitzgerald, the Court reviewed on interlocutory appeal the district court’s denial of
  the president’s motion invoking executive privilege to quash a grand jury subpoena
  to produce tape recordings.

Id. at 686-87

. The Court explained that, in this “unique
  setting,” the lack of immediate review would “require a President of the United
  States to place himself in the posture of disobeying an order of a court merely to
  trigger the procedural mechanism for review of the ruling,” which “would be
  unseemly, and would present an unnecessary occasion for constitutional
  confrontation between two branches of the Government.”

Id. at 691-92

.

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  finding a “compelling” separation of powers concern in future cases,

id.,

 it counseled

  against “the lawyer’s temptation to generalize,” id. at 350. We follow this advice

  because using a generalized separation of powers rationale to expand the collateral

  order doctrine would defy the Supreme Court’s repeated and increasingly stringent

  directives to limit Cohen expansion. It would risk ever-increasing judge-made

  categories for interlocutory appellate review.

        Bivens extension orders do not raise separation of powers concerns

  commensurate with denials of presidential immunity intruding on “essential

  Presidential prerogatives,” Nixon,

457 U.S. at 743

, or posing “unique risks to the

  effective functioning of government,”

id. at 751

. Nor do they trigger an exigent need

  for interlocutory review to resolve a “constitutional confrontation between two

  branches of the Government.” United States v. Nixon,

418 U.S. 683, 691-92


  (1974).19

        When plaintiffs ask courts to recognize new Bivens claims, the separation of

  powers concern is whether Congress or the judiciary should provide the answer.

  See, e.g., Egbert,

142 S. Ct. at 1802-04, 1806-07

; Big Cats of Serenity Springs,

843 F.3d at 860

. This concern may explain in part why the Court has recognized

  only three types of Bivens claims, Hernandez II,

140 S. Ct. at 741

, has been reluctant


        19
          Will did not say that separation of powers concerns always justify interlocutory
  review. And it discussed presidential immunity as its only example where separation of
  powers supported a Cohen exception. The Court did not extend this rationale to qualified
  immunity, see

546 U.S. at 352-53

, and suggested Bivens-related dismissals would not be
  immediately appealable,

id. at 353-54

.

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  to recognize others,

id.,

 and has even signaled the demise of the Bivens doctrine

  altogether, Egbert,

142 S. Ct. at 1803

. Even so, the Court has not jettisoned Bivens,

  which means courts, including the district court here, are obligated to determine

  whether a plaintiff has stated a Bivens claim.20 But doing so does not impede the

  legislative branch, which could eliminate or authorize the Bivens claim as it sees fit.

        In sum, the Supreme Court has recognized that district court orders implicating

  separation of powers may be candidates for interlocutory review, but that is as far as

  it goes. See Kelly v. Great Seneca Fin. Corp.,

447 F.3d 944, 948-49

(6th Cir. 2006)

(“Absolute Presidential immunity protects a substantial public interest in the

separation of powers,” but “[t]he Supreme Court did not say that denials of all forms

of absolute immunity . . . were immediately appealable.”). The BOP defendants’

claim, presented in three briefs, is that Bivens extension orders implicate generalized

concerns about “separation of powers.”21 That is insufficient to meet their burden to

show why Bivens extension orders should receive the same consideration for

interlocutory review as orders denying presidential immunity—the only cases in

20
Relying largely on Justice Gorsuch’s concurrence in Egbert, the dissent
would hold that Bivens is dead. Dissent at 1-6. We prefer an express holding from a
Supreme Court majority.
21
See Aplt. Br. at 1 (“[E]xtending Bivens remedies . . . would contravene the
separation of powers.”); id. at 7, 33, 35, 37; Aplt. Reply Br. at 2, 18, 19; Suppl. Aplt.
Reply Br. at 3, 11, 13-14, 17.

35
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which the Court has expanded the collateral order doctrine based on separation of

powers concerns.22

Further, the BOP defendants overlook a countervailing consideration. The

collateral order doctrine is a judicially created exception to Congress’s final

judgment rule embodied in § 1291. See Mohawk,

558 U.S. at 113

; Dissent at 2 n.2

  (“[F]ederal courts are courts of limited jurisdiction. They possess only the power

  authorized by Constitution and statute, which is not to be expanded by judicial

  decree.” (quoting Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377


  (1994))). Their requested expansion of the collateral order doctrine to a new class of

  cases thus raises the separation of powers concern of how far courts should go in

  carving out exceptions to the congressionally enacted final judgment rule.

                                       …

        We will not overread Will and extend the collateral order doctrine to any class

  of cases that touch on separation of powers concerns. Nor will we ignore the

  competing separation of powers concern of creating a categorical exception to the

  final judgment rule for Bivens extension orders in the face of Congress’s clear

  preference for finality in § 1291 and for rulemaking in §§ 2072(c) and 1292(e). The



        22
            The BOP defendants argue that “[i]nterlocutory orders denying qualified
  immunity, and those allowing non-statutory Bivens remedies, both contravene the
  separation of powers.” Suppl. Aplt. Reply Br. at 3; see also id. at 5. But again, Will
  never characterized qualified immunity as invoking separation of powers concerns,
  see

546 U.S. at 352-53

, and we show above that Bivens and qualified immunity differ
  in structure and purpose.

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  foregoing may explain why the Will Court stopped short of saying that separation of

  powers concerns always call for a Cohen interlocutory appeal, and why it then

  cautioned against extending Cohen to Bivens extension orders, a matter we turn to

  next.

     Will Dicta

          Will not only indicated separation of powers concerns may not be sufficient to

  warrant interlocutory review, but it also cautioned against expanding the collateral

  order doctrine to Bivens extension orders. Will stated that “if simply abbreviating

  litigation troublesome to Government employees were important enough for Cohen

  treatment, collateral order appeal would be a matter of right whenever . . . a federal

  officer lost [a motion to dismiss] on a Bivens action.”

546 U.S. at 353-54

. We are

  “bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings,

  particularly when the dicta is recent and not enfeebled by later statements.” Utah

  Republican Party v. Cox,

892 F.3d 1066, 1079

 (10th Cir. 2018) (quotations

  omitted).23

          The BOP defendants quote Judge Hardiman’s characterization of Will’s

  statement as “‘at most’ . . . non-binding ‘drive by dictum.’” Aplt. Br. at 39 (quoting

  Graber,

59 F.4th at 612

 (Hardiman, J., dissenting)). We give the Will Court more

  credit for its statement. After recognizing, as it had before, that the Cohen doctrine is


          23
          We seem to bind ourselves more strongly to Supreme Court dicta than the
  Third Circuit. See Graber,

59 F.4th at 609

 n.10 (explaining that that court takes
  Supreme Court dicta as “highly persuasive” (quotations omitted)).

                                             37
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  narrow; after warning about generalizations concerning trial burdens; and after

  identifying high-order values that might support interlocutory review, the Will Court

  expressed concern about expanding the collateral order doctrine “as a matter of right

  whenever . . . a federal officer lost [a motion to dismiss] on a Bivens action,”

546 U.S. at 353-54

, as the BOP defendants did here. We see this passage as a

  thoughtful observation meant to be taken seriously, hardly as “drive-by dictum.”

  And we understand it as constraining us from creating a collateral order doctrine

  exception for Bivens exception orders.

                               C. Supreme Court Precedent

        The BOP defendants contend that in Hartman and Wilkie, the Supreme Court

  recognized Bivens extension orders as a separate category of cases “immediately

  appealable . . . in their own right.” Aplt. Br. at 35; see also Suppl. Aplt. Reply Br.

  at 2.24 We disagree. Both cases were interlocutory appeals that tied Bivens extension

  issues to qualified immunity.


        24
             The BOP defendants mistakenly argue that “the Supreme Court addressed
  . . . a Bivens extension on an interlocutory appeal . . . in Hernandez [II].” Aplt. Br.
  at 35. In that case, the district court granted the government defendants’ motions to
  dismiss and for summary judgment. See Hernandez v. United States,

757 F.3d 249

,
  257 n.5 (5th Cir. 2014), on reh’g en banc,

785 F.3d 117

 (5th Cir. 2015), vacated and
  remanded sub nom. Hernandez v. Mesa (“Hernandez I”),

582 U.S. 548

 (2017) (per
  curiam), on remand,

885 F.3d 811

 (5th Cir. 2018) (en banc), aff’d, Hernandez II,

140 S. Ct. 735

; Hernandez II,

140 S. Ct. at 740

 (“The District Court granted [the
  government defendants’] motion to dismiss, and the Court of Appeals for the Fifth
  Circuit sitting en banc has twice affirmed this dismissal.”). The plaintiffs appealed
  from final judgment under § 1291 without the need for the collateral order doctrine.
           Although Hernandez I said that “Bivens question[s] [are] ‘antecedent’ to”
  qualified immunity questions, 582 U.S. at 553 (quoting Wood v. Moss,

572 U.S. 38

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        In Hartman, the petition for certiorari expressly raised qualified immunity and

  linked it to the Bivens extension issue. See Pet. for Certiorari at *I, Hartman,

 (No. 04-1495),

2005 WL 1123566

. The Court explained it had jurisdiction

  to consider the Bivens claim because the qualified immunity analysis “directly

  implicated” it. Hartman,

 n.5.

        In Wilkie, the Court said that whether a Bivens remedy exists can be addressed

  as part of a qualified immunity appeal,

 n.4, not, as the BOP

  defendants contend, that a Bivens issue “presented alone and not in conjunction with

  a qualified-immunity appeal” would be reviewable under the collateral order

  doctrine, Suppl. Aplt. Reply Br. at 1.

        In sum, when qualified immunity is at issue on interlocutory appeal, Bivens

  extension order issues may be resolved as “directly implicated by the defense of

  qualified immunity.” Wilkie,

 n.4 (quoting Hartman,

 n.5). The BOP defendants contend otherwise, Suppl. Aplt. Reply Br. at 2, but

  they ignore that this court and other circuit courts have interpreted Wilkie this way.

  In Big Cats of Serenity Springs, we said, “[T]he court has jurisdiction over the

  question of whether a Bivens remedy exists [when] it [i]s sufficiently implicated by

  the qualified immunity defense.”

843 F.3d at 856

 (citing Wilkie,





  744, 757 (2014)), neither that case nor Hernandez II had anything to do with the
  collateral order doctrine.

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  n.4).25 Here, the Bivens issue is not “directly implicated by the defense of qualified

  immunity.” Wilkie,

 n.4 (quoting Hartman,

983 F.3d 1166, 1174, 1192

 n.5).

  Only one BOP defendant raised qualified immunity before the district court and

  waived that issue in this appeal.

        The BOP defendants counter that “it would make no sense to hold that” Bivens

  extension orders are “immediately appealable only when conjoined with a qualified-

  immunity appeal.” Suppl. Aplt. Reply Br. at 3. They explain that when the Supreme

  Court reviewed Bivens extension orders in Hartman and Wilkie, it could not have

  attached the Bivens issue to qualified immunity using pendent jurisdiction26 because

  that jurisdictional basis is disfavored. Id.; see Cummings,

913 F.3d at 1235


  (providing background on pendent jurisdiction). Thus, they argue, “[T]he Court is




        25
           See also Pettibone v. Russell,

59 F.4th 449, 453

 (9th Cir. 2023) (“Wilkie
  establishe[d] that, in an interlocutory appeal from a denial of qualified immunity, [an
  appellate court] necessarily ha[s] jurisdiction to decide whether an underlying Bivens
  cause of action exists.”);

id. at 453-54

 (collecting similar holdings from the Third,
  Fourth, Fifth, Sixth, Seventh, Eighth, and D.C. Circuits).
        26
            Pendent jurisdiction allows a court to review “otherwise nonfinal and
  nonappealable lower court decision[s] that overlap[] with an appealable decision” in
  “two scenarios: (1) when the otherwise nonappealable decision is inextricably
  intertwined with the appealable decision, or (2) where review of the nonappealable
  decision is necessary to ensure meaningful review of the appealable one.”
  Cummings,

913 F.3d at 1235

 (quotations omitted). We have exercised pendent
  jurisdiction in interlocutory appeals from a district court’s denial of qualified
  immunity. See, e.g., Crowson v. Washington County,

  (10th Cir. 2020); Moore v. City of Wynnewood,

57 F.3d 924, 927, 928-31

  (10th Cir. 1995).

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  best understood as having considered [Bivens] extension orders . . . as immediately

  appealable collateral orders in their own right.” Suppl. Aplt. Reply Br. at 1.

        We need not resolve whether pendent jurisdiction was the basis for the

  Supreme Court’s decisions. We agree with the Sixth Circuit’s statement in

  Himmelreich that “[w]hatever the basis for” the Court’s decisions in Hartman and

  Wilkie, “there was a predicate denial of qualified immunity,” and without such a

  predicate, review of a Bivens extension order is unavailable.

5 F.4th at 661

.

        The Court has never held that Bivens extensions are independently appealable

  under the collateral order doctrine. We decline to break new ground.

                                     D. Circuit Split

        Finally, the BOP defendants ask us to create a circuit split. Aplt. Br. at 36.

  We are “reluctant” “to go against the tide,” particularly when multiple circuits “are

  aligned together.” United States v. Thomas,

939 F.3d 1121, 1130-31

 (10th Cir.

  2019). We see “no good reason to create a circuit split,”

id. at 1134

, here.

                                      …

        The Supreme Court in Will recognized separation of powers as a “substantial

  public interest” that may justify interlocutory appellate review, but not always. We

  have identified countervailing considerations: the Cohen exception to finality is

  narrow; Bivens defendants have other avenues for interlocutory review, including

  immediate appeals of qualified immunity denials; Congress and the Supreme Court

  favor rulemaking over judicial expansion of the collateral order doctrine; Bivens

  claims do not implicate the efficiency and government initiative interests underlying

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  allowance of interlocutory appeals of qualified immunity denials; expanding the

  doctrine puts stress on separation of powers; binding Will dicta discourages a Cohen

  exception for Bivens extension orders; and Tenth Circuit case law cautions against

  creating circuit splits. We do not think the BOP defendants overcome these

  considerations.

                                  III. CONCLUSION

        We dismiss the appeal for lack of appellate jurisdiction.




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  22-1453, Mohamed v. Jones

  TYMKOVICH, Circuit Judge, dissenting.

           Because I conclude that Bivens claims are no longer judicially cognizable, and that

  we have jurisdiction to review (and foreclose) interlocutory rulings recognizing Bivens

  claims under the collateral order doctrine, I respectfully dissent.

      I.      Bivens Doctrine

            “Marley was dead, to begin with. There is no doubt whatever about that.”

                                                          Charles Dickens, A Christmas Carol

           In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388, 391

 (1971), the Supreme Court authorized a damages action against federal officials

  for alleged violations of the Fourth Amendment.

           This act of judicial adventurism “has not worn well.” Logsdon v. U.S. Marshal

  Serv.,

91 F.4th 1352, 1355

 (10th Cir. 2024), petition for rehr’g denied (Apr. 5, 2024).

  “Although the Court recognized causes of action under Bivens in two subsequent

  cases . . . it is on course to treating Bivens as a relic of the 20th century.”1

 The

  Majority agrees with this trend. Maj. at 35 (The Court “has even signaled the demise of

  Bivens doctrine altogether” but “has not jettisoned” it.). I, however, believe the Court has

  relegated it to the dustbin.




  1
    The Court last authorized a Bivens remedy in 1980, and “[o]ver the past 42 years” it has
  “declined 11 times to imply a similar cause of action for other alleged constitutional
  violations.” Egbert v. Boule,

596 U.S. 482, 486

 (2022) (listing cases). The Court’s
  refusal in Egbert makes twelve.
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         The Court’s abrogation of Bivens sprang from its recognition that the “judicial

  creation of a cause of action is an extraordinary act that places great stress on the

  separation of powers.” Nestlé USA, Inc. v. Doe,

593 U.S. 628, 636

 (2021) (plurality

  opinion). As it explained:

                Now long past “the heady days in which this Court assumed
                common-law powers to create causes of action,” we have
                come to appreciate more fully the tension between judicially
                created causes of action and the Constitution’s separation of
                legislative and judicial power. At bottom, creating a cause of
                action is a legislative endeavor . . . . Unsurprisingly,
                Congress is far more competent than the Judiciary to weigh
                such policy considerations. And the Judiciary’s authority to
                do so at all is, at best, uncertain.
  Egbert v. Boule,

596 U.S. 482, 486

 (2022) (quoting Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 75

 (2001) (Scalia, J., concurring)) (internal quotations and citations omitted).2

         The abrogative process has been “gradual, but relentless.”3 Logsdon,

. Through a series of decisions tracing their lineage back to Chief Justice Burger’s

  dissent in Bivens itself,

403 U.S. at 411

, the Court has methodically defanged the doctrine




  2
   In contrast to common-law courts, “[f]ederal courts are courts of limited jurisdiction.
  They possess only that power authorized by Constitution and statute, which is not to be
  expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377

 (1994) (internal citations omitted).
  3
    While the abrogative process may have been gradual, the Court’s hostility to Bivens has
  increased exponentially in recent years: going from “it is possible that the analysis in the
  Court’s three Bivens cases might have been different if they were decided today,” Ziglar
  v. Abassi,

582 U.S. 120, 134

 (2017), to “if we were called to decide Bivens today, we
  would decline to discover any implied causes of action in the Constitution.” Egbert,

596 U.S. at 502

.
                                                2
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  by placing additional hurdles in the way of Bivens claims. In Egbert, the Court

  summarized the evolution of Bivens’s analytical framework:

                To inform a court’s analysis of a proposed Bivens claim, our
                cases have framed the inquiry as proceeding in two steps.
                First, we ask whether the case presents “a new Bivens
                context”—i.e., is it “meaningful[ly]” different from the three
                cases in which the Court has implied a damages action.
                Second, if a claim arises in a new context, a Bivens remedy is
                unavailable if there are “special factors” indicating that the
                Judiciary is at least arguably less equipped than Congress to
                “weigh the costs and benefits of allowing a damages action to
                proceed.” If there is even a single reason to pause before
                applying Bivens in a new context, a court may not recognize a
                Bivens remedy.
  596 U.S. at 492 (quoting Ziglar v. Abbasi,

582 U.S. 120, 136, 140

 (2017)) (alteration in

  original) (internal quotation and citations omitted).

         But even this restrictive two-step framework caused problems. See Id. at 502

  (“What distinguishes the first step from the second? What makes a context ‘new’ or a

  factor ‘special’? And, most fundamentally, on what authority may courts recognize new

  causes of action even under these standards?”) (Gorsuch, J., concurring). These problems

  persisted because none of the Court’s changes addressed Bivens’s fundamental flaw: it is

  a constitutionally impermissible extrajudicial act placing “great stress on the separation

  of powers.” Nestlé,

593 U.S. at 636

.

         The “special factors” analysis prescribed under the Court’s two-step framework

  illustrates this conundrum. Under the first step, courts were required to ask whether the

  case presented a “new Bivens context.” Ziglar, 582 U.S. at 139–140. And a “new

  context arises when there are potential special factors that previous Bivens cases did not

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  consider.” Egbert,

596 U.S. at 492

 (citing Ziglar,

582 U.S. at 140

). But the second step

  also requires courts to consider whether “special factors indicat[e] that the Judiciary is at

  least arguably less equipped than Congress to weigh the costs and benefits of allowing a

  damages action to proceed.”

 (internal quotations omitted).

         Given that both steps mandate consideration of “special factors,” it was “hard to

  see the difference between the analyses conducted in the two steps.” Logsdon,

91 F.4th at 1356

. Recognizing this, the Court explained that the steps “often resolve to a single

  question: whether there is any reason to think that Congress might be better equipped to

  create a damages remedy.” Egbert,

596 U.S. at 492

. See also Logsdon, 91 F.4th at

  1356–57 (“If there was any doubt concerning whether the ‘special factors’ in [the first

  step] were somehow different from the ‘special factors’ to be considered in the second

  step, that doubt was dissipated [in] Egbert[.]”).

         With that insight, the Court distilled the inquiry to its constitutional essence and

  established the controlling Bivens test: “A court faces only one question: whether there is

  any rational reason (even one) to think that Congress is better suited to weigh the costs

  and benefits of allowing a damages action to proceed.” Egbert,

596 U.S. at 496


  (emphasis in original); and see Logsdon,

 (adopting this test).

         In my view, Egbert’s single question test dealt Bivens a coup de grâce. See, e.g.,

  Egbert,

596 U.S. at 503

(“It seems to me that to ask the question is to answer it.”)

(Gorsuch, J., concurring). As Justice Gorsuch observed:

If the costs and benefits do not justify a new Bivens action on
facts so analogous to Bivens itself, it’s hard to see how they
ever could. And if the only question is whether a court is
4
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“better equipped” than Congress to weigh the value of a new
cause of action, surely the right answer will always be no.
Doubtless, these are the lessons the Court seeks to convey. I
would only take the next step and acknowledge explicitly
what the Court leaves barely implicit.
Id. at 504.
The lesson I take away is that the “right answer” to whether to recognize a Bivens

cause of action “will always be no.” Id. As I read it, Egbert’s test is always self-

defeating because underlying every Bivens case are two “rational reason[s]” to “think that

Congress is better suited to weigh the costs and benefits of allowing a damages action to

proceed.” Id. at 496 (emphasis in original and internal quotations omitted).

The first is the Court’s increased appreciation for “the tension between” judicially

created causes of action and “the Constitution’s separation of legislative and judicial

power.” Hernandez v. Mesa,

589 U.S. 93, 100

 (2020). The second is a court’s inability

  to “predict the systemwide consequences of recognizing a cause of action under Bivens.

  That uncertainty alone is a special factor that forecloses relief.” Egbert,

596 U.S. at 493


  (internal citations omitted and emphasis added). Indeed, these twin factors preclude

  relief even “when the facts are virtually the same” as those of Bivens, or the two cases to

  which the Court extended its cause of action, Carlson v. Green,

446 U.S. 14

 (1980), and

  Davis v. Passman,

442 U.S. 228

 (1979). Logsdon,

. See, e.g., Egbert,

596 U.S. at 504

 (“If the costs and benefits do not justify a new Bivens action on facts so

  analogous to Bivens itself, it’s hard to see how they ever could.”) (Gorsuch, J.,

  concurring).



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           If even the Bivens, Carlson, and Davis fact patterns are no longer judicially

  cognizable, then the question after Egbert is not whether an order impermissibly

  “exten[ds]” Bivens, Maj. at 20, it is whether to “recogniz[e] a cause of action under

  Bivens” at all. Egbert,

596 U.S. at 491

. And because the twin special factors are present

  in every Bivens case, drumming up others amounts to illusory pretext. Maj. at 35 (The

  Court “has even signaled the demise of the Bivens doctrine altogether . . . . ”); Logsdon,

 (cognizable Bivens claims “appear[] to comprise a null set.”); Silva v.

  United States,

45 F.4th 1134

, 1140 (10th Cir. 2022) (“[W]e are left in no doubt that

  expanding Bivens is not just a disfavored judicial activity, it is an action that is

  impermissible in virtually all circumstances.”) (internal quotations and citations omitted).

           To arrive at Bivens’s death is to return to its congenital defect: “recognizing a

  Bivens cause of action is an extraordinary act that places great stress on the separation of

  powers[.]” Egbert,

596 U.S. at 498

 n.3 (internal quotations omitted). Armed with this

  understanding, I next consider whether district court rulings recognizing Bivens claims

  are immediately reviewable collateral orders.

     II.      Bivens Rulings and the Collateral Order Doctrine

           A. The Collateral Order Doctrine

           We have jurisdiction over “appeals from all final decisions of the district courts.”

. But what constitutes a final decision?

           A final decision is generally one that concludes the litigation. Will v. Hallock,

546 U.S. 345, 349

 (2006). This means that a district court’s denial of a motion to dismiss is

  generally not a final decision because it does not end the litigation. Cf.

.

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         But the “collateral order doctrine accommodates a small class of rulings, not

  concluding the litigation, but conclusively resolving claims of right separable from, and

  collateral to, rights asserted in the action.” Will,

546 U.S. at 349

 (citing Cohen v.

  Beneficial Indus. Loan Corp.,

337 U.S. 541, 546

 (1949)) (internal quotations omitted).

  See also Edward H. Cooper, 15A Fed. Prac. & Proc. Juris. (Wright & Miller) § 3911 (3d

  ed. updated Apr. 2023) (“The only finality required is that the district court has made its

  final determination of the matter in question.”).

         These interlocutory rulings are immediately appealable when they: “[1]

  conclusively determine the disputed question, [2] resolve an important issue completely

  separate from the merits of the action, and [3] [are] effectively unreviewable on appeal

  from a final judgment.” Will,

546 U.S. at 349

 (internal quotations omitted). This so

  called “Cohen test” permits immediate review of rulings “too important to be denied

  review and too independent of the cause itself to require that appellate consideration be

  deferred until the whole case is adjudicated.” Cohen,

337 U.S. at 546

.

         B. Application of the Cohen Test

         I would hold that orders recognizing Bivens claims are “final” under § 1291 and

  the collateral order doctrine, rendering them immediately appealable. See Graber v. Doe

  II,

59 F.4th 603, 611

 (3rd Cir. 2023) (Hardiman, J., dissenting), cert. denied sub nom.

  Boresky v. Graber,

144 S. Ct. 681

 (2024).




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         Because the third factor is the fulcrum of the analysis, I discuss Cohen’s factors in

  reverse order.4

                1. Factor 3 – Effectively Unreviewable on Appeal from Final Judgment

         “[W]hen asking whether an order is effectively unreviewable if review is to be left

  until later,” what “counts” is whether the delay “imperil[s] a substantial public interest.”

  Will,

546 U.S. at 353

. See also Cohen,

337 U.S. at 546

 (an order is effectively

  unreviewable when it presents an issue “too important to be denied review . . . until the

  whole case is adjudicated.”). The “separation of powers” is a “substantial public

  interest.” Will, 546 U.S. at 352–53.5

         A substantial public interest is imperiled if its delayed vindication results in the

  “very harm” sought to be avoided. Sell v. United States,

539 U.S. 166

, 176–77 (2003).




  4
    As the Majority acknowledged, the other two Circuits to have considered this issue both
  assumed without deciding that a Bivens ruling satisfies the first and second Cohen
  factors. Himmelreich v. Fed. Bureau of Prisons,

5 F.4th 653

 (6th Cir. 2021) (predating
  Egbert); Graber,

59 F.4th at 610

.
  5
    Although Will contains passing dictum concerning the interlocutory reviewability of
  Bivens authorizations, it predated Egbert by 16 years. Since deciding Will, the Court has
  “come to appreciate more fully the tension between judicially created causes of action
  and the Constitution’s separation of legislative and judicial power[.]” Egbert,

596 U.S. at 491

 (internal quotations omitted). And it has acknowledged that “recognizing a Bivens
  cause of action ‘is an extraordinary act that places great stress on the separation of
  powers[.]’”

 at 498 n.3 (quoting Nestlé,

593 U.S. at 636

). This modern conception of
  Bivens is consistent with Will’s acknowledgement that “honoring the separation of
  powers” is a “particular value of a high order” warranting interlocutory review. Will,

546 U.S. at 346

. See also Graber, 59 F.4th 612–13 (Hardiman, J., dissenting) (“The defense
  that no Bivens cause of action lies is just like qualified immunity” in that it is “timely
  from the moment an official is served with a complaint.”) (quoting Will,

546 U.S. at 346

).

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  Recognizing a claim premised on an “impermissible” intrusion by “the federal courts,”

  Helstocki v. Meanor,

442 U.S. 500

, 505–06 (1979), irreparably harms every branch of

  government, the litigants, and the public. It irreparably harms the judiciary and the

  claimants by “hold[ing] out [a] kind of false hope, and in the process invit[ing] still more

  protracted litigation destined to yield nothing.” Egbert,

596 U.S. at 504

 (Gorsuch, J.,

  concurring). It irreparably harms the legislature by “arrogating legislative power” and

  upsetting “the careful balance of interests struck by the lawmakers.” Hernandez,

589 U.S. at 100

; see also Egbert,

596 U.S. at 492

 (“a court likely cannot predict the

  systemwide consequences of recognizing a cause of action under Bivens.”) (internal

  quotations omitted). It irreparably harms the executive branch, both abstractly by

  impairing government functioning, interfering with executive autonomy, and chilling

  high-level policy making, and tangibly by imposing “time and administrative costs

  attendant upon intrusions resulting from the discovery and trial process.” Ziglar,

582 U.S. at 134

, 141–42. Finally, its zombie existence harms the public writ large because,

  absent its formal abrogation, Congress has no incentive to legislate in the space. Instead,

  potential claimants are left with a brain-dead cause of action sustained by life support.

         Because the judicial process itself is the injury, these harms are a bell that cannot

  be unrung later in the litigation. See, e.g., Egbert,

596 U.S. at 496

, 498 n.3 (Bivens so

  imperils the “separation of powers,” and so “impair[s] governmental interests,” that

  courts have a responsibility to sua sponte “evaluate any grounds that counsel against

  Bivens relief”—even those not raised by the parties.). See also Nixon v. Fitzgerald, 457



                                                9
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52 U.S. 731

, 743 (1982) (Courts should show “special solicitude” toward “threatened

  breach[es]” of the “separation of powers.”).6

         While the Majority acknowledges that “district court orders implicating separation

  of powers concerns may be candidates for interlocutory review,” Maj. at 36, it resists

  finding so here by concluding that the “[s]eparation of powers concerns about Bivens

  extension orders do not necessarily satisfy the third Cohen factor[.]” Id. at 20. Rather,

  the Majority argues, “separation of powers” concerns sufficient to satisfy Cohen’s third

  factor are effectively limited to orders “denying presidential immunity[.]” Id. at 35

  (discussing Nixon, 457 U.S. at 742–43).

         I take the Court at its word. It said that “recognizing a Bivens cause of action is an

  extraordinary act that places great stress on the separation of powers.” Egbert,

596 U.S. at 498

 n.3 (emphasis added and internal quotations omitted). And it said that “honoring

  the separation of powers”—not presidential immunity alone—is a “particular value of a

  high order” warranting interlocutory review. Will,

546 U.S. at 346

 (emphasis added).

  Taken together, these edicts plainly support jurisdiction for Bivens-recognizing orders.

         This does not mean that every “class of case[] that touch[es] on separation of

  powers concerns” warrants Cohen treatment. Maj. at 37. As the Majority illustrates, the

  collateral order doctrine itself implicates “competing separation of powers concern[s]”



  6
   Compare less weighty interests warranting interlocutory review under the collateral
  order doctrine, including Cohen, 337 U.S. at 546–47 (order rejecting the applicability of
  security laws enacted after the initiation of derivative shareholder suits) and Praxis
  Properties, Inc. v. Colonial Sav. Bank, S.L.A.,

947 F.2d 49, 61

 (3d Cir. 1991) (orders
  denying requests for a litigation stay).
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  such that its membership class must be “stringent[ly] protected. Maj. at 37, 21. I agree

  with those concerns, as far as they go.7 But here we must determine the greater harm:

  recognizing Bivens claims or modestly expanding the collateral order doctrine.

         Bivens-authorizing orders warrant Cohen treatment because “Bivens, Davis, and

  Carlson represent the only instances in which the Court has approved of an implied

  damages remedy under the Constitution itself.” Ziglar,

582 U.S. at 131

 (emphasis

  added). Put another way, “Bivens actions are [a] very limited” category of case posing

  unique Constitutional harms. Graber,

59 F.4th at 609

. The collateral order doctrine does

  not rise to this level. Tucker v. Faith Bible Chapel Int'l,

36 F.4th 1021, 1033

 (10th Cir.

  2022), cert. denied,

143 S. Ct. 2608

 (2023) (“Immediate appeals under the collateral

  order doctrine are disfavored . . . because ‘too many interlocutory appeals can cause

  harm.’”) (quoting Johnson v. Jones,

515 U.S. 304, 309

 (1995)).

         At bottom, courts may recognize new collaterally appealable orders. See, e.g., Los

  Lobos Renewable Power, LLC v. Americulture, Inc., F.3d 659, 668 (10th Cir. 2018)

  (extending the collateral order doctrine to decisions not to apply state anti-SLAPP

  statutes); Tucker,

36 F.4th at 1033

 (“Immediate appeals under the collateral order

  doctrine . . . ‘are the exception, not the rule[.]’”) (quoting Johnson,

515 U.S. at 309

). In

  fact, the Court recognized a new collateral order in a footnote only thirteen days after

  deciding Egbert. Shoop v. Twyford,

596 U.S. 811

, 817 n.1 (2022) (extending the


  7
   See Los Lobos, 885 F.3d at 667 (“Whatever the merits of discarding Cohen, the Court
  did not take that path in Mohawk, and we may not blaze it here.”) (discussing Mohawk
  Industries, Inc. v. Carpenter,

558 U.S. 100

, 114–119 (2009) (Thomas, J., concurring in
  part and concurring in the judgment)) (internal citations omitted).
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  collateral order doctrine to prisoner transport orders under the All Writs Act). What

  courts cannot do after Egbert, however, is recognize Bivens claims.

         “[R]ecognizing a Bivens cause of action is an extraordinary act that places great

  stress on the separation of powers[.]” Egbert,

596 U.S. at 498

 n.3 (internal quotations

  omitted). Any delay in foreclosing this judicial intrusion into the legislature’s domain

  imperils a weighty public interest in the separation of powers and should be vindicated at

  the earliest possible opportunity. For these reasons, I would hold that Bivens-recognizing

  orders are “effectively unreviewable” under the third Cohen factor. 8


  8
   The Majority also argues that “alternative means to pursue interlocutory review”
  counsels against reviewing Bivens-recognizing orders under the collateral order doctrine.
  Maj. at 22. But the existence of “possible alternate means of vindication” does not
  “defeat collateral order jurisdiction.” Los Lobos, 885 F.3d at 667.

  For example, the “discretionary availability” of interlocutory review under

(b) does not bar collateral recognition of orders authorizing Bivens claims. Section
  1292(b) applies only to orders “not otherwise appealable” whereas § 1291 conveys
  appellate jurisdiction over “all final decisions of the district courts[.]” Since § 1292(b)
  applies only to non-appealable orders, it does not limit the appealability of collateral final
  orders (which are appealable) under § 1291. Will,

546 U.S. at 350

 (The collateral order
  doctrine is “not [] an exception” to § 1291,” but a “practical construction of it.”). See
  also Graber,

59 F.4th at 617

 n.3 (Hardiman, J., dissenting) (“Courts have tools other than
  the collateral order doctrine to facilitate interlocutory appeals of important legal
  issues . . . [their existence] does not forbid us from recognizing new collateral orders[.]”).

  Independently, the order before us would not satisfy § 1292(b) because it only applies to
  questions on which there is “substantial ground for difference of opinion.” As I
  explained above, there is no “substantial ground” to dispute the permissibility of orders
  recognizing Bivens claims.

  Nor does Fed. R. Civ. P. 54(b)’s appellate certification procedure limit collateral
  recognition. “The collateral order doctrine and Rule 54(b) apply to entirely distinct types
  of orders: the doctrine applies only to orders completely separate from the merits of the
  claims for relief, and the Rule applies only to orders that resolve the merits of one or
  more of those claims. Rule 54(b), therefore, does not limit review of orders that are
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                2. Factors 2 & 1

         Cohen’s second factor asks whether the challenged order resolves “an important

  issue completely separate from the merits.” Will,

546 U.S. at 349

. The fact question in

  any Bivens claim is whether the defendant violated the claimant’s constitutional rights,

  while the legal Bivens question is whether the claimant can sue at all. But see Egbert,

596 U.S. at 504

 (“[T]he right answer will always be no”) (Gorsuch, J., concurring).

         Liability for a claim and the cognizability of a cause of action are completely

  separate questions. And it is axiomatic that the existence of a cause of action—and so the

  ability to sue—is an “important question” to a lawsuit. Thus, answering the Bivens

  question resolves an important question completely separate from the merits, and so

  satisfies Cohen’s second factor. See Los Lobos, 885 F.3d at 667 (Cohen recognized an

  order that was “a prerequisite to the cause of action itself.”).

         Finally, Cohen’s first factor asks whether the challenged ruling conclusively

  determines the disputed question. Will,

546 U.S. at 350

. A decision authorizing a Bivens

  cause of action conclusively determines the judicial cognizability of that claim. But-for



  appealable under the collateral order doctrine.” 10 Daniel R. Coquillette, Gregory P.
  Joseph, Georgene M. Vairo & Chilton Davis Varner, Moore’s Federal Practice,
  § 54.27[2](c) (3d ed. 2024) (emphasis in original). See, e.g., Valley Ranch Dev. Co. v.
  F.D.I.C.,

960 F.2d 550

, 555–56 (5th Cir. 1992) (Stating that because the district court’s
  order “is immediately appealable as a collateral order[,] [a] rule 54(b) judgment is not
  necessary.”); In re General Motors Corp. Engine Interchange Litig.,

594 F.2d 1106, 1118

  (7th Cir. 1979) (“We hold that, despite the refusal of the trial court to enter judgment
  pursuant to Rule 54(b), we have jurisdiction to review the order . . . as a collateral
  order.”); Crowder v. Housing Auth. of City of Atlanta,

908 F.2d 843

, 845–846 (11th Cir.
  1990) (“[T]he absence of a Rule 54(b) determination does not mean that a decision of the
  district court is not a collateral order within the meaning of Cohen.”).
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  the court’s legal conclusion that the cause of action exists, there can be no claim. See

  Elhady v. Unidentified CBP Agents,

18 F.4th 880, 884

 (6th Cir. 2021) (“[I]f there is no

  cause of action, courts should stop there.”); Vanderklock v. United States,

868 F.3d 189, 197

 (3d Cir. 2017) (The existence of a Bivens claim is a “threshold question of law[.]”).

  The authorization of a Bivens claim thus satisfies Cohen’s first factor.

                                         …

         The collateral order doctrine means nothing if it does not accommodate immediate

  review of orders authorizing causes of action that have been abrogated by virtue of the

  grave constitutional harms they inflict. Certainly, this is a “small class of rulings” too

  “important to be denied review” falling within the doctrine’s ambit. Will,

546 U.S. at 349

. Accordingly, I conclude that orders recognizing Bivens claims are “final” under

  § 1291 and the collateral order doctrine, and so would permit their immediate appellate

  review.

     III.   The District Court’s Bivens Ruling

         Having addressed appellate jurisdiction, I turn to the district court’s ruling.

         The district court erred because it focused almost exclusively on whether Mr.

  Mohamed’s Bivens claims presented a new context. But after Egbert “[a] court faces

  only one question: whether there is any rational reason (even one) to think that Congress

  is better suited to weigh the costs and benefits of allowing a damages action to proceed.”

  Egbert,

596 U.S. at 496

 (internal quotations omitted). See also Logsdon,

91 F.4th at 1358


  (“[W]e conclude our analysis should focus on that single question.”).



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         Myriad rational reasons suggest that Congress is better suited to weigh the costs

  and benefits of permitting Mr. Mohamed’s Bivens claims. Ever present is the Court’s

  increased appreciation for “the tension between” judicially created causes of action and

  “the Constitution’s separation of legislative and judicial power.” Hernandez,

589 U.S. at 100

. As is the court’s inability to “predict the systemwide consequences of recognizing a

  cause of action under Bivens.” Egbert,

596 U.S. at 493

 (internal quotations omitted).

  The existence of these special factors alone “counsel against Bivens relief.”

Id.

 at 498

  n.3.

         Of course, other “special factors” also warrant dismissal, as they always will. For

  example, the Appellants represent a “new category of defendants.” Logsdon,

91 F.4th at 1358

. Although the Carlson defendants were BOP employees, there they were BOP

  medical officials who allegedly provided inadequate medical care.

446 U.S. at 54

 n.1.

  Here, the defendants are BOP prison guards. See Logsdon,

91 F.4th at 1358

 (Agents of

  the U.S. Marshals Service presented a different category of defendant than agents of the

  Federal Bureau of Narcotics). Not only are these positions categorically different, but

  prison guards and prison medical officials also have different duties and perform different

  functions—i.e., one’s primary responsibility is to provide medical care and the other’s is

  to oversee security.9

Id.

 (“Of particular relevance here is a duty of the USMS that was

  not a factor considered in Bivens.”).


  9
    One of the named BOP Officers—Anthony Osagie—is alleged to be a “medical
  provider” in addition to being a correctional officer. Even though Officer Osagie is
  alleged to have a medical role, Mr. Mohamed’s Bivens claims against him are not for
  inadequate medical care, like the claims in Carlson.

446 U.S. at 54

 n.1. Instead, Officer
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             And independently, “a court may not fashion a Bivens remedy if Congress already

  has provided, or has authorized the Executive to provide, an alternative remedial

  structure.” Egbert,

596 U.S. at 493

. In Silva, we concluded that the BOP’s

  Administrative Remedy Program is an alternative remedial structure.

45 F.4th at 1141


  (“[T]he availability of the BOP’s Administrative Remedy Program offers an

  independently sufficient ground to foreclose [an Eighth amendment excessive force]

  Bivens claim.”). That program was available to Mr. Mohamed. In fact, he utilized it. Its

  existence alone is enough to foreclose his Bivens claims.10