PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 21-1407

______________

JEREMY GRABER,

v.

POLICE OFFICER JOHN DOE II, Badge No. in his 

individual and official capacity as an officer for the city of 

Philadelphia Police Department; POLICE OFFICER JOHN 

DOE III, Badge No. in his individual and official capacity as 

an officer for the city of Philadelphia Police Department; 

POLICE OFFICER JOHN DOE IV, Badge No. in his 

individual and official capacity as an officer for the city of 

Philadelphia Police Department; SPECIAL AGENT 

MICHAEL BORESKY, in his individual and official capacity 

as a Special Agent for the U.S. Secret Services; POLICE 

INSPECTOR JOEL DALES, in his individual and official 

capacity as an Inspector for the city of Philadelphia

Special Agent Michael Boresky,

Appellant

______________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 2-18-cv-03168) 
2

U.S. District Judge: Honorable Cynthia M. Rufe

______________

Argued

October 4, 2022

______________

 

Before: HARDIMAN, SHWARTZ, and NYGAARD, Circuit 

Judges.

(Filed:February 10, 2023)

______________

Brian M. Boynton

Joseph F. Busa

Jaynie Lilley [ARGUED]

United States Department of Justice

Civil Division

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Paul E. Werner

United States Department of Justice

Torts Branch, Civil Division

P.O. Box 7146, Ben Franklin Station

Washington, DC 20044

Counsel for Appellant

Paul J. Hetznecker [ARGUED]

1420 Walnut Street

Suite 911

Philadelphia, PA 19102
3

Counsel for Appellee 

______________

OPINION OF THE COURT

______________

SHWARTZ, Circuit Judge.

In Bivens v. Six Unknown Named Agents of the Federal 

Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court 

held that a cause of action existed against federal agents who 

violated the Fourth Amendment. Relying on Bivens, Plaintiff 

Jeremy Graber sued Defendant Michael Boresky, a Special 

Agent for the United States Secret Service, asserting that 

Boresky violated his Fourth Amendment rights by arresting, 

detaining, and charging him with a crime without probable 

cause. In an order denying a motion to dismiss, the District 

Court held that a Bivens claim could be brought against 

Boresky. Thereafter, the Court dismissed Boresky’s motion 

for summary judgment without prejudice based upon qualified 

immunity because it found that discovery was needed to 

determine whether Boresky was entitled to qualified immunity. 

At oral argument before our Court, Boresky stated that he is 

not challenging the qualified immunity ruling but argued that 

we should review the District Court’s Bivens ruling. Because

the Bivens ruling is not a final decision and is not appealable 

under the collateral order doctrine, we lack jurisdiction to 

consider that interlocutory ruling and we must dismiss this 

appeal. 
4

I

A

In 2016, Philadelphia hosted the Democratic National 

Convention (the “Convention”). The Department of 

Homeland Security (“DHS”) designated the event as a 

National Special Security Event (“NSSE”). Once an event is 

designated an NSSE, federal agencies coordinate operational 

security with state and local law enforcement. Relevant here, 

the Secret Service “coordinate[d] the development and 

implementation of the overall operational security plan.” App. 

53.

In the lead-up to the Convention, the Secret Service 

announced that access to certain areas around the Convention 

would be restricted (the “Restricted Area”).0F

1 The Restricted 

Area was surrounded by an eight-foot fence. 

On the evening of July 27, 2016, Plaintiff joined

political protests outside the Restricted Area.1F

2

 Protestors 

breached the gated perimeter around the Restricted Area. The 

Philadelphia Police Department (“PPD”) apprehended those 

within the Restricted Area. Plaintiff was one of seven 

individuals taken into custody. PPD did not prepare any arrest 

paperwork for Plaintiff. 

1 The Restricted Area was Broad Street from 7th Street 

to 20th Street, the cross-streets between Packer Avenue to I95, and the entirety of FDR Park. 

2 Plaintiff, a paramedic, was also there to provide 

emergency medical aid to protestors. 
5

Thereafter, the Assistant to the Special-Agent-inCharge of the Secret Service in Philadelphia informed Boresky

of the arrests and told him that the arrestees were to be charged 

with violating 18 U.S.C. § 1752,2F

3

and that Boresky would serve 

as the affiant for the criminal complaint.3F

4 The next morning, 

Special Agent Aaron McCaa e-mailed Boresky a synopsis of 

the events leading to the arrests as well as photographs of the 

fence and evidence seized from the arrestees. 

Boresky appeared before a Magistrate Judge and signed 

an affidavit identifying Plaintiff as one of the seven individuals 

arrested inside the Restricted Area. Boresky attested that the 

contents of the affidavit were based upon his “personal 

knowledge, experience and training,” “information developed 

during the course of this investigation,” and “information . . .

imparted to [him] by other law enforcement officers.” App. 

77. Boresky admits that he was not present at the arrest and

did not write the affidavit but reviewed it for accuracy based 

upon the information in McCaa’s synopsis. Boresky did not 

view any video evidence before swearing out the affidavit. 

Plaintiff was held overnight at the Federal Detention 

Center. Plaintiff’s counsel thereafter provided Fox 29 News

video clips to the Government confirming that Plaintiff never 

3 18 U.S.C. § 1752 prohibits persons and groups from 

entering a restricted area where a Secret Service protectee is or 

will be visiting or an area restricted in conjunction with an 

event designated as a special event of national significance. 

4 The night before Plaintiff’s arrest, Boresky served as 

the affiant for criminal complaints against four other

individuals arrested for unlawfully entering the Restricted 

Area. 
6

passed through the fence. Plaintiff was released and the 

charges were dismissed. 

B

Citing Bivens, Plaintiff sued Boresky for false arrest,

unlawful detention, and false charges.4F

5

 Boresky moved to 

dismiss, arguing that Plaintiff could not pursue his Fourth 

Amendment claim against him under Bivens. Graber v. Dales, 

No. 18-CV-3168, 2019 WL 4805241, at *1-2 (E.D. Pa. Sept. 

30, 2019) (“Graber I”).5F

6

 The District Court employed the 

Supreme Court’s two-step framework set forth in Ziglar v. 

Abbasi, 137 S. Ct. 1843 (2017), which requires a court to first 

consider whether a plaintiff’s claim presents a context in which 

the Supreme Court had not previously recognized a Bivens

claim and, if so, whether special factors counsel against

extending Bivens to permit such a claim. Graber I, 2019 WL 

4805241, at *3 (citing Ziglar, 137 S. Ct. at 1857-60). The 

Court denied Boresky’s motion to dismiss under Federal Rule 

of Civil Procedure 12(b)(6), concluding that Plaintiff’s Fourth 

Amendment claim, predicated on the assertion that he was 

arrested and charged without probable cause, did not present a 

“new Bivens context,” id. at *3, and thus presented a basis for 

5 Plaintiff also asserted First Amendment and 

conspiracy claims against all officers. 

6 The District Court dismissed the claims against 

Boresky in his official capacity for lack of subject-matter 

jurisdiction because the United States had not waived 

sovereign immunity for constitutional tort claims as well as 

Plaintiff’s First Amendment and civil conspiracy claims 

against Boresky in his individual capacity for failure to state a 

claim. Graber I, 2019 WL 4805241, at *2, 7-9. 
7

relief. The Court further held that, even if Plaintiff’s claim 

arose in a new context, special factors did not counsel against

extending Bivens to permit Plaintiff’s claim to proceed. Id. at 

*4-5.

The case then proceeded to discovery. Amid discovery 

disputes between the parties, Boresky filed a motion for 

summary judgment based on qualified immunity and asked to

stay discovery pending resolution of that motion. Graber v. 

Dales, 511 F. Supp. 3d 594, 595 (E.D. Pa. 2021) (“Graber II”). 

Plaintiff responded by filing a declaration under Federal Rule 

of Civil Procedure 56(d), asserting that he needed discovery to 

respond to Boresky’s summary judgment motion. 

The District Court concluded that Boresky’s entitlement 

to qualified immunity hinged on whether it was “objectively 

reasonable” for him to believe that there was probable cause to 

detain and charge Plaintiff, and this required consideration of 

“evidence surrounding the statements and communication 

upon which Defendant Boresky relied.” Id. at 599. Because 

Plaintiff had no opportunity to conduct any discovery, the 

Court concluded that it would be “wholly inequitable” to 

permit Boresky to rely upon affidavits and communications to 

which Plaintiff had no access and denied the qualified 

immunity motion without prejudice to permit discovery. Id. at 

600. 

Boresky appeals, waiving his challenge to the qualified 

immunity ruling and asking us to review whether the District 

Court erred in holding Plaintiff could bring a Bivens claim. 

Oral Argument at 5:52-6:02, Graber v. Boresky (Oct. 4, 2022)

(No. 21-1407),

https://www2.ca3.uscourts.gov/oralargument/audio/21-
8

1407Graberv.SpecialAgentMichaelBoresky.mp3. 

II6F

7

A

At the outset, we must ensure we have jurisdiction over 

this appeal. While we would have had jurisdiction to review 

an interlocutory appeal of the District Court’s qualified 

immunity order,7 F

8 Mack v. Yost, 968 F.3d 311, 318 (3d Cir. 

7 The District Court had subject matter jurisdiction 

pursuant to 28 U.S.C. § 1331. 

8 Where a district court defers ruling on qualified 

immunity to permit further fact discovery, as is the case here, 

“implicit in that ruling” is the legal conclusion that the plaintiff 

adequately pled a violation of clearly established law, and thus 

the order is immediately appealable. Oliver v. Roquet, 858 

F.3d 180, 189 (3d Cir. 2017) (holding appellate jurisdiction 

existed despite factual component of the court’s qualified 

immunity ruling); see also In re Montgomery Cnty., 215 F.3d 

367, 370 (3d Cir. 2000) (concluding that an “implicit denial” 

of immunity claims is “sufficient to confer appellate 

jurisdiction”). The District Court’s order dismissing the

motion seeking summary judgment based on qualified 

immunity to allow for discovery contains the implicit legal 

conclusion that Bivens is available in this context. See

Vanderklok v. United States, 868 F.3d 189, 197 (3d Cir. 2017)

(characterizing Bivens remedy as a “threshold question of law”

that “is directly implicated by the defense of qualified 

immunity”); see also Wilkie v. Robbins, 551 U.S. 537, 549 n.4 

(2007) (recognizing appellate courts have jurisdiction over 
9

2020), Boresky no longer challenges the qualified immunity 

ruling. As a result, we must determine whether we can review 

the Court’s Rule 12(b)(6) Bivens ruling untethered from a 

challenge to a qualified immunity ruling. Boresky contends 

that we have jurisdiction under the collateral order doctrine. 

We have jurisdiction over “appeals from all final 

decisions of the district courts.” 28 U.S.C. § 1291. There are, 

however, “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 v. 

Hallock, 546 U.S. 345, 349 (2006) (quotation marks and 

citation omitted). Such interlocutory orders are appealable 

under the collateral order doctrine if 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.” Id. (citation omitted). The Supreme Court has 

described these elements as “stringent” to ensure that the 

collateral order doctrine does not “overpower the substantial 

finality interests § 1291 is meant to further.” Id. at 349-50; see 

also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 

868 (1994) (describing the collateral order doctrine as a 

“narrow exception” to the final order requirement). Orders 

falling into this narrow group “are sufficiently important and 

collateral to the merits [such] that they should nonetheless be 

treated as final.” Will, 546 U.S. at 347 (quotation marks and 

citation omitted). 

interlocutory appeals challenging a Bivens ruling in a qualified 

immunity appeal). 
10

A Bivens ruling does not fall within this small group of 

orders that require interlocutory review under the collateral 

order doctrine: a Bivens ruling can be effectively reviewed 

after final judgment because, unlike various immunity 

doctrines, a Bivens ruling is not meant to protect a defendant 

from facing trial. The Supreme Court has identified several 

types of orders that are entered to protect a defendant from 

facing trial, and each would be effectively unreviewable if 

considered after final judgment is entered: orders denying 

absolute immunity, orders denying qualified immunity, orders 

denying Eleventh Amendment immunity, and adverse double 

jeopardy rulings. Id. at 350 (collecting cases). An order 

denying immunity (or double jeopardy protection) from suit 

cannot be “reviewed ‘effectively’ after a conventional final

judgment,” id. at 351, because the suit has already occurred by 

the time the appeal is reviewed, and thus the purpose of the 

immunity (or double jeopardy protection) is defeated, see, e.g., 

Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995)

(“[A]n official’s qualified immunity is an immunity from suit

rather than a mere defense to liability; and like an absolute 

immunity, it is effectively lost if a case is erroneously 

permitted to go to trial.” (quotation marks, citation, and

emphasis omitted)).

9 Moreover, the immunity doctrines in 

9 The dissent is correct that the collateral order doctrine 

allows review of more than orders addressing assertions of 

immunity, and each of the additional examples the dissent cites 

is similarly reviewable under the collateral order doctrine 

because each involves issues that are “in danger of becoming 

moot,” and thus unreviewable, following a final judgment. 

United States v. Mitchell, 652 F.3d 387, 397 (3d Cir. 2011) (en 

banc) (citation omitted) (order prohibiting pretrial collection of 

defendant’s DNA sample); see also United States v. Bellille, 
11

particular are meant to allow government officers to avoid “the 

burdens of litigation” and to carry out their duties without the

threat of a “full trial . . . whenever they acted reasonably in the 

face of law that is not ‘clearly established.’” Will, 546 U.S. at 

352. Thus, immediate review of orders denying immunity 

furthers the goal of the immunity doctrines, which is to avoid 

trial, while also “honoring the separation of powers,” 

“preserving the efficiency of government,” and encouraging 

“the initiative of its officials.” Id. 

Bivens, however, is not an immunity doctrine. See, e.g., 

F.D.I.C. v. Meyer, 510 U.S. 471, 483-84 (1994) (observing that 

“whether there has been a waiver of sovereign immunity” is 

“analytically distinct” from whether substantive law upon 

which plaintiff relies provides a basis for relief). Rather, it is a

judicially created cause of action that allows a plaintiff to sue 

962 F.3d 962, 737-38 (3d Cir. 2020) (order denying motion to 

withdraw as counsel); Doe v. Coll. of N.J., 997 F.3d 489, 494 

(3d Cir. 2021) (order denying motion to proceed 

anonymously); United States v. Wecht, 537 F.3d 222, 228-29

(3d Cir. 2008) (order denying the public’s right of access to a 

criminal trial). In other words, each of these issues, unlike a 

Bivens ruling, involves a right that would be “irretrievably 

lost” absent an immediate appeal. Praxis Props., Inc. v. 

Colonial Sav. Bank, S.L.A., 947 F.2d 49, 60 (3d Cir. 1991), as 

amended on denial of reh’g (Nov. 13, 1991) (order denying 

statutory right to a 90-day stay). The issue of whether there is 

a cognizable Bivens claim does not become moot following a 

final judgment. Instead, a litigant can continue to assert a 

defense under Bivens and seek review of that defense after the 

entry of a final judgment because his right not to be held liable 

is not “irretrievably lost” absent an interlocutory appeal. 
12

a federal officer for damages for constitutional violations. 

Bivens actions are very limited, and new ones cannot be 

created where “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 v. Boule, 

142 S. Ct. 1793, 1805 (2022) (emphasis omitted) (quoting 

Ziglar, 137 S. Ct. at 1858). The Court’s focus in determining

whether such a claim can be brought, therefore, is on whether 

courts should be in the business of creating avenues for 

liability, which is distinct from whether a defendant is immune 

from suit altogether. 

The Supreme Court itself has recognized this difference 

and the impact it has on the ability to seek immediate review 

of a Bivens ruling. The Court stated that “if simply 

abbreviating litigation troublesome to Government employees

were important enough for [collateral order] treatment, [then] 

collateral order appeal would be a matter of right whenever the 

Government lost a motion to dismiss under the Tort Claims 

Act, or a federal officer lost one on a Bivens action, or a state 

official was in that position in a case under 42 U.S.C. § 1983, 

or Ex parte Young.”10 Will, 546 U.S. at 353-54 (rejecting 

10 The dissent characterizes the Supreme Court’s 

statement as dicta. Even if that label is accurate, we have held 

that statements made by the Supreme Court in “dicta are highly 

persuasive.” Galli v. N.J. Meadowlands Comm'n, 490 F.3d 

265, 274 (3d Cir. 2007). We have observed that, because the 

“Supreme Court uses dicta to help control and influence the 

many issues it cannot decide because of its limited docket,”

failing to follow those statements could “frustrate the 

evenhanded administration of justice by giving litigants an 

outcome other than the one the Supreme Court would be likely 
13

application of the collateral order doctrine to the Federal Tort 

Claims Act’s judgment bar). In short, the Supreme Court has 

recognized that a Bivens ruling is different from an immunity 

ruling and is not eligible for interlocutory appeal under the 

collateral order doctrine. Id.

11

Accordingly, Boresky’s assertion that there is no cause 

of action under Bivens is simply a defense to liability, which 

can be effectively reviewed after the entry of final judgment. 

Cf. Swint, 514 U.S. at 41-43 (holding that a denial of a motion 

for summary judgment on a Monell claim is not appealable 

under the collateral order doctrine because the defendant’s 

argument would amount to a “mere defense to liability” that 

could be “reviewed effectively on appeal from final 

judgment”). Unlike an immunity ruling, any error in a Bivens

to reach were the case heard there.” Official Comm. of 

Unsecured Creditors of Cybergenics Corp. v. Chinery, 330 

F.3d 548, 561 (3d Cir. 2003) (quoting In re McDonald, 205 

F.3d 606, 612-613 (3d Cir. 2000)). 

11 The dissent’s observations about separation of powers 

are well-taken but they do not support creating an avenue for 

interlocutory review of an issue that goes directly to liability. 

The Supreme Court’s Bivens jurisprudence cautions courts not 

to create new causes of action, as that is the job of the 

legislature. See Egbert, 142 S. Ct. at 1802 (2022). However, 

whether a court has created a cause of action or, in the language 

of Bivens, a plaintiff presented a context in which such a 

Bivens claim had not been recognized, presents questions 

about whether the plaintiff has stated a claim upon which relief 

may be granted, which is the type of ruling regularly reviewed 

after the entry of final judgment.
14

ruling can be cured on appeal at the end of the case.12 Thus, an 

order denying a motion to dismiss or for summary judgment 

based upon Bivens, untethered to an order denying qualified 

immunity, is not appealable under the collateral order 

doctrine.8F

13

A sister circuit court reached the same conclusion. In

Himmelreich v. Federal Bureau of Prisons, 5 F.4th 653 (6th 

Cir. 2021), the Court of Appeals for the Sixth Circuit held that 

an appellate court lacks jurisdiction under the collateral order 

doctrine over a Bivens ruling absent an appealable qualified 

immunity order. Id. at 659. The court assumed without 

deciding that the Bivens order there, which permitted plaintiff 

to proceed on his First Amendment claim against a federal 

officer, was a conclusive ruling and that the order resolved an 

issue of separation of powers distinct from the plaintiff’s 

constitutional claim. Id. at 661. However, the court concluded 

that the issue could be adequately reviewed following final 

judgment. Id. at 662. Like us, the court also observed that 

Bivens provides a “remedy for unconstitutional conduct” but 

“does not grant defendants entitlement not to stand trial.” Id.

12 Because an order denying dismissal based upon 

Bivens fails the third factor from Will, we need not consider 

whether the first or second Will factors—whether the order 

“conclusively determine[d] the disputed question” or 

“resolve[d] an important issue completely separate from the 

merits of the action,” 546 U.S. at 349—are satisfied. 

13 The Supreme Court counsels appellate courts to 

hesitate in enlarging the types of orders eligible for review 

under the collateral order doctrine that are not independently 

appealable nor certified for review under 28 U.S.C. § 1292(b). 

Swint, 514 U.S. at 47-48. 
15

Because a Bivens ruling can be effectively reviewed 

after the entry of final judgment, it is not an order that falls 

within the small class of orders that are immediately appealable 

under the collateral order doctrine and, as a result, we lack 

appellate jurisdiction to review the District Court’s Bivens

ruling.

14

14 The availability of an alternative appellate 

mechanism pursuant to 28 U.S.C. § 1292(b) also counsels 

against the position taken by the Government and the dissent. 

For difficult questions of law “in exceptional cases,” parties 

may seek interlocutory review by a court of appeals. Milbert 

v. Bison Labs., Inc., 260 F.2d 431, 433 (3d Cir. 1958). A 

district court may grant a certificate of appealability under 

§ 1292(b) when its order: “(1) involve[s] a ‘controlling 

question of law,’ (2) offer[s] ‘substantial ground for a 

difference of opinion’ as to its correctness, and (3) if appealed 

immediately ‘materially advance[s] the ultimate termination of 

the litigation.’” Katz v. Carte Blanche Corp., 496 F.2d 747, 754 

(3d Cir. 1974) (en banc) (quoting § 1292(b)). Certification is 

available for purposes that address the Government’s concerns 

here: avoiding “a wasted[,] protracted trial” when “a pretrial 

order erroneously overrul[ed] a defense going to the right to 

maintain the action.” Id. (citing legislative history of 

§ 1292(b)). One of § 1292(b)’s regular uses is to permit 

interlocutory appeal to decide whether a statute permits a 

private cause of action. See, e.g., Zeffiro v. First Pa. Banking 

& Tr. Co., 623 F.2d 290, 292 (3d Cir. 1980) (whether an 

injured investor has a federal cause of action under the Trust 

Indenture Act of 1939); Northstar Fin. Advisors, Inc. v. 

Schwab Invs., 615 F.3d 1106, 1114-15 (9th Cir. 2010) 

(whether there is a private right of action to enforce § 13(a) of 

the Investment Company Act of 1940); Love v. Delta Air 
16

III

For the foregoing reasons, we will dismiss this appeal. 

Lines, 310 F.3d 1347, 1350-51 (11th Cir. 2002) (whether the 

Air Carrier Access Act of 1986 implies a private right of 

action). That determination and the availability of a Bivens

remedy present a question of law in the same category: can the 

plaintiff sue at all? The discretionary availability of 

§ 1292(b)’s mechanism makes us hesitate to agree that an order 

allowing a Bivens claim to proceed is one within “that small 

class” of orders “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 v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

(1949).
Jeremy Graber v. Special Agent Michael Boresky et al.,

No. 21-1407

______________

HARDIMAN, Circuit Judge, dissenting.

This appeal is unusual. Special Agent Michael Boresky

could have filed a meritorious interlocutory appeal of the 

District Court’s order dismissing without prejudice his motion 

for summary judgment on qualified immunity. Instead, 

Boresky asks us to be the first appellate court to hold that an 

order denying a motion for summary judgment that challenges 

the existence of a Bivens cause of action is appealable before a 

final judgment is entered. This gambit implicates two 

conflicting trends of Supreme Court jurisprudence: the Court’s 

careful policing of the expansion of the collateral order 

doctrine established in Cohen v. Beneficial Industrial Loan 

Corporation, 337 U.S. 541 (1949), and its repeated refusal to 

allow new constitutional tort actions against federal officers 

under Bivens v. Six Unknown Agents of Federal Bureau of 

Narcotics, 403 U.S. 388 (1971). It’s hard to predict how the 

Supreme Court would resolve this conflict. But because I think 

the Court will allow interlocutory appeals in cases like this 

one—where the constitutional separation of powers is 

imperiled—I respectfully dissent.

I

In Swint v. Chambers County Commission, 514 U.S. 35

(1995), the Supreme Court identified appealable collateral 

orders as those that (1) are “conclusive,” (2) “resolve important 

questions separate from the merits,” and (3) are “effectively 

unreviewable on appeal from the final judgment.” 514 U.S. at 

42. The majority opinion holds that Boresky failed to satisfy 
2

the third criterion. In doing so, it focuses on four types of 

collateral orders the Supreme Court has recognized, observing 

that each rejects a defense the purpose of which is to avoid suit

altogether. Maj. Op. 10–12. The majority then notes that 

Bivens is “not an immunity doctrine” but rather addresses 

“whether courts should be in the business of creating avenues 

for liability.” Id. at 11–12. I agree with those propositions. 

But an immunity is neither sufficient nor necessary for an 

order denying a claim to be “effectively unreviewable on 

appeal.” That criterion is met if an order denies a potentially 

dispositive pretrial defense that implicates a sufficiently 

important public value. See Will v. Hallock, 546 U.S. 345, 352–

53 (2006). And we have recognized collateral orders that do 

not involve immunity defenses at all, much less immunity from 

suit. See, e.g., United States v. Mitchell, 652 F.3d 387, 398 (3d 

Cir. 2011) (en banc) (orders prohibiting pretrial collection of a 

criminal defendant’s DNA sample); United States v. Bellille, 

962 F.3d 731, 737–38 (3d Cir. 2020) (orders denying motions 

to withdraw as counsel in criminal cases); Doe v. Coll. of N.J., 

997 F.3d 489, 494 (3d Cir. 2021) (orders denying motions to 

proceed anonymously); Chehazeh v. Att’y Gen., 666 F.3d 118, 

139 (3d Cir. 2012) (sua sponte BIA orders to reopen removal 

proceedings); United States v. Wecht, 537 F.3d 222, 229 (3d 

Cir. 2008) (orders denying the public’s right of access to a 

criminal trial); Praxis Properties, Inc. v. Colonial Sav. Bank, 

S.L.A., 947 F.2d 49, 61 (3d Cir. 1991), as amended on denial 

of reh’g (Nov. 13, 1991) (orders denying requests for a 

litigation stay under 12 U.S.C. § 1821(d)(12)). The Supreme 

Court has done likewise. See 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). And several 
3

kinds of collateral orders involve interests that are less weighty 

than the constitutional value imperiled by the District Court’s 

Bivens authorization: the separation of powers. See, e.g., 

Cohen, 337 U.S. at 546–47 (orders rejecting the applicability 

of security laws enacted after the initiation of derivative 

shareholder suits); Praxis Properties, 947 F.2d at 61 (orders 

denying requests for a litigation stay).

The majority leans on the Supreme Court’s decision in Will

v. Hallock, stating: “the Supreme Court has recognized that a 

Bivens ruling is different from an immunity ruling and is not 

eligible for interlocutory appeal under the collateral order 

doctrine.” Maj. Op. 13 (emphasis added). Will did not so hold. 

The issue there was whether a “refusal to apply the judgment 

bar of the Federal Tort Claims Act is open to collateral appeal.” 

546 U.S. at 347. The Court held it was not. Id.

What’s more, Will characterized the interest supporting the 

FTCA’s judgment bar as “avoidance of litigation for its own 

sake.” Id. at 353. The Court contrasted this “mere avoidance”

of trial generally with avoidance of a trial that would “imperil 

a substantial public interest”; the latter is what counts under 

Swint’s third criterion. Id. “[I]f,” the Court concluded, “simply 

abbreviating litigation troublesome to Government employees 

were important enough for Cohen treatment,” a 28 U.S.C. 

§ 1291 appeal would lie whenever a federal officer lost a 

motion to dismiss “on a Bivens action”—or the Tort Claims 

Act, 42 U.S.C. § 1983, or Ex parte Young, 209 U.S. 123 

(1908). Id. at 353–54.

The majority cites this sentence from Will as evidence of 

the Supreme Court’s “recogni[tion]” that an order authorizing 

a Bivens cause of action is ineligible for interlocutory appeal. 

Maj. Op. 13. I don’t put as much stock as my colleagues in the 
4

Court’s drive-by dictum about Bivens, primarily because of 

several substantive points Will made. First, the Court noted that 

the FTCA’s judgment bar isn’t important enough to merit 

interlocutory appeal of orders denying its applicability because 

it resembles the defense of claim preclusion, which “has not 

been thought to protect values so great that only immediate 

appeal can effectively vindicate them.” Will, 546 U.S. at 355. 

Will also contrasted the judgment bar’s “essential procedural 

element”—the bar can be raised “only after a case under the 

Tort Claims Act has been resolved in the Government’s 

favor”—with a qualified immunity defense, which is “timely 

from the moment an official is served with a complaint.” Id. at 

354. The defense that no Bivens cause of action lies is just like 

qualified immunity in this respect. Finally, Will acknowledged 

that “honoring the separation of powers” and “preserving the 

efficiency of government and the initiative of its officials” 

were “particular value[s] of a high order” sufficient to warrant 

§ 1291 interlocutory review. Id. at 352. Those are precisely the 

values imperiled by erroneous Bivens authorizations.

II

I agree with my colleagues that we must police the 

parameters of the collateral order class “stringent[ly].” Maj. 

Op. 9 (quoting Will, 546 U.S. at 349). That class must remain 

of “modest scope.” Will, 546 U.S. at 350. Yet we do recognize 

new collateral orders. See, e.g., Bellille, 962 F.3d at 737–38; 

Doe, 997 F.3d at 494. Our task is to honor the collateral order 

doctrine’s “internal logic” and “strict[ly] appl[y]” the Cohen

criteria restated in Swint. Ashcroft v. Iqbal, 556 U.S. 662, 672 

(2009).
5

A

The majority concludes that we lack jurisdiction because

the order in question resolves an issue that would not be 

“effectively unreviewable on appeal” after final judgment. I 

understand that criterion—Swift’s third—differently than my 

colleagues. 

The touchstone for that criterion is the importance of the 

values imperiled by an erroneous ruling. See Will, 546 U.S. at 

351–52 (“only some orders denying an asserted right to avoid 

the burdens of trial qualify” under Cohen, namely those 

involving interests judged sufficiently valuable); Sell v. United 

States, 539 U.S. 166, 177 (2003) (the “importance of the 

constitutional issue” can distinguish appealable from nonappealable collateral orders); Wecht, 537 F.3d at 229 (asking 

whether the “value” of immediate vindication is “significant 

enough to justify [interlocutory] review”); Lauro Lines s.r.l. v. 

Chasser, 490 U.S. 495, 503 (1989) (Scalia, J., concurring) 

(post-judgment vindication is “enough” when the interest in 

question is not “sufficiently important” to overcome the 

policies underlying the final judgment rule). So it’s not 

enough—though it is necessary—for Boresky to invoke an 

interest that will be “essentially destroyed” if its vindication 

awaits post-trial review. Lauro Lines, 490 U.S. at 499. He must 

also invoke a “particular value of a high order” or a “substantial 

public interest” to tip the scale. Will, 546 U.S. at 352–53.

Whether delayed review would imperil such a value is the 

collateral order doctrine’s “decisive consideration.” Mohawk 

Industries, Inc. v. Carpenter, 558 U.S. 100, 107 (2009).
6

As those precedents suggest, not only those prerogatives 

flying under the banner of “immunity” can be collateral.

1 First, 

not every denial of an immunity defense warrants interlocutory 

review. See, e.g., Van Cauwenberghe v. Biard, 486 U.S. 517, 

524 (1988) (denial of a “claim of immunity from civil service 

of process” is not a collateral order); We, Inc. v. City of 

Philadelphia, 174 F.3d 322, 326 (3d Cir. 1999) (denial of 

“Noerr-Pennington immunity” is not a collateral order). 

Second, not every collateral order denies an immunity 

claim. Cohen itself held that an order rejecting the applicability 

of a security law enacted after the initiation of a derivative 

shareholder suit was “final” under § 1291. 337 U.S. at 546–47. 

The Supreme Court has also recognized orders allocating the 

costs of providing notice to class members as collateral. Eisen, 

417 U.S. at 170–72. And we have recognized collateral orders 

implicating other rights or interests that are not immunities. It’s 

true that whether a claimed entitlement is better characterized 

as an immunity from suit or defense against liability is a key

consideration under the collateral order doctrine. Robinson v. 

Hartzell Propeller, Inc., 454 F.3d 163, 171 (3d Cir. 2006). But 

that’s because whereas a pure “right not to be tried” necessarily 

satisfies Swint’s third criterion, not every “right whose remedy 

requires the dismissal” of a claim before trial does. United 

States v. Hollywood Motor Car Co., 458 U.S. 263, 269 (1982).

The majority cites favorably the Sixth Circuit’s decision in 

Himmelreich v. Federal Bureau of Prisons, 5 F.4th 653 (6th 

Cir. 2021), which denied that an order allowing a Bivens action 

1 Since there is sometimes “no obviously correct way” to 

characterize the value or interest at issue, it is not always clear 

whether we are dealing with an “immunity.” Lauro Lines, 490 

U.S. at 500.
7

to proceed was collateral under § 1291. Respectfully, that 

decision also misunderstands Swint’s third criterion. 

Himmelreich assumed that the district court’s order 

conclusively determined an important issue separate from the 

merits. 5 F.4th at 661. The court then denied that such an order 

was “effectively unreviewable” on appeal from final judgment. 

Id. at 662. It reasoned: “[u]nlike qualified immunity, Bivens

provides a plaintiff’s remedy for unconstitutional conduct. It 

does not grant defendants an entitlement not to stand trial.” Id.

But Swint’s third criterion does not ask only whether a 

defendant has an entitlement not to stand trial. And 

Himmelreich, like the majority here, mistakenly concluded that 

Will foreclosed the argument that “the collateral order doctrine 

extends to standalone appeals of district court orders 

recognizing a Bivens remedy.” Id.

In short, Swint’s third criterion does not look to whether an 

immunity is asserted. It focuses on the importance of the values 

involved in the order under review.

B

I would hold that interlocutory appeals from orders 

denying motions for summary judgment that challenge the 

cognizability of a Bivens cause of action are “final” under 

§ 1291 and the collateral order doctrine. Though we have 

rejected the application of the collateral order doctrine to nonfinal orders in “the vast majority of cases,” Robinson, 454 F.3d 

at 170, the order at issue here satisfies Swint’s criteria. The 

Supreme Court’s recent opinions delimiting the scope of

Bivens underscore the importance of the values jeopardized 

when district courts wrongly allow such claims to proceed. 

And orders denying summary judgment motions arguing that

no Bivens cause of action is cognizable conclusively determine 
8

an important question of law distinct from a Bivens claim’s 

merits.

1

Orders like those just mentioned are effectively 

unreviewable on appeal because they imperil a “particular 

value of a high order” and “substantial public interest,” Will, 

546 U.S. at 352–53: the Constitution’s separation of the 

legislative and judicial powers.

A cause of action is a “remedial mechanism.” Bivens, 403 

U.S. at 397. It permits a plaintiff to “appropriately invoke the 

power of [a] court” to hear his suit and grant relief. Davis v. 

Passman, 442 U.S. 228, 240 n.18 (1979). The choice to allow 

a Bivens action to proceed against a federal officer requires 

consideration of “a number of economic and governmental 

concerns,” including the “time and administrative costs” run 

up by the discovery and trial process and the extent to which 

“monetary and other liabilities should be imposed upon” 

officers who violate the Constitution. Ziglar v. Abbasi, 137 S. 

Ct. 1843, 1856 (2017). Congress is “best positioned” to reach

that sort of judgment. Hernandez v. Mesa, 140 S. Ct. 735, 742

(2020) (Hernandez II). So it’s a “significant step under 

separation-of-powers principles” for an Article III court to 

authorize a Bivens action. Ziglar, 137 S. Ct. at 1856. That’s 

why doing so is a “disfavored judicial activity.” Id. at 1857 

(internal quotation marks and citation omitted).

The Supreme Court recently put the point more directly: 

“creating a cause of action is a legislative endeavor,” pure and 

simple. Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022). The 

Judiciary’s power to authorize a Bivens cause of action at all is 

“uncertain”—so much so that a court should not extend Bivens
9

if there is any rational reason to think Congress better 

positioned to decide whether to create a cause of action. Id. at 

1803. That hurdle is a high one. So too the cost of wrongly 

clearing it: Congress cannot undo judicially created

constitutional remedies. Dongarra v. Smith, 27 F.4th 174, 181 

(3d Cir. 2022).

The Court has called the separation of powers a “particular 

value of a high order” that satisfies Swint’s third criterion. Will, 

546 U.S. at 352. In my view, “protect[ing] the constitutional 

command of separation of powers” against the “impermissible 

assertion” of authority by “the federal courts” is an imperative

worthy of immediate enforcement. Helstoski v. Meanor, 442 

U.S. 500, 505–06 (1979). We should show “special solicitude” 

toward “threatened breach[es]” of the “separation of powers.” 

Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982).

It’s true that forcing a private litigant to shoulder the 

burden of a legally unwarranted trial is often consistent with 

the calculus underlying the final judgment rule. Cf. Robinson, 

454 F.3d at 171–72. But the Bivens defendant always is a 

federal officer. Also, unlike the defenses invoked under res 

judicata and statutes of limitation, which protect only the 

“interest in not being held ultimately liable” on some claim, 

Bell Atl. v. Penn. Pub. Util. Comm’n, 273 F.3d 337, 344 (3d 

Cir. 2001), the defendant sued under Bivens asserts that the 

court cannot entertain the claim in the first place. See Elhady 

v. Unidentified CBP Agents, 18 F.4th 880, 884 (6th Cir. 2021) 

(“Plaintiffs . . . often have no cause of action unless we extend 

Bivens. And if there is no cause of action, courts should stop 

there.”); Vanderklok v. United States, 868 F.3d 189, 197 (3d 

Cir. 2017) (existence of Bivens cause of action is a “threshold 

question of law”). And though “privately negotiated” or 

privately “conferred” rights—such as entitlements allocated in
10

settlement agreements—often fail to “rise to the level of 

importance” required by Swint’s third criterion, Digital 

Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 876, 

878–79 (1994), the Bivens defendant’s right not to be subject 

to a claim for which no cause of action lies is assured by the 

Constitution.

2

Judicial creation of a cause of action against federal 

officers places “great stress on the separation of powers.” 

Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1938 (2021). And 

orders “rais[ing] questions of clear constitutional importance” 

are sufficiently important to warrant immediate review. Sell, 

539 U.S. at 176; see also Chehazeh, 666 F.3d at 138–39 (an 

interest raising substantial concerns that implicate 

constitutional safeguards is “compelling” under Swint’s third 

criterion). A court’s decision to authorize a Bivens cause of 

action also generates “substantial costs” for Executive officers. 

Ziglar, 137 S. Ct. at 1855. Expansion of Bivens in violation of

the separation of powers thus disrupts effective governance, 

subjecting officers to the same “distraction from duty” that 

qualified immunity is meant to foreclose. Digital Equipment, 

511 U.S. at 881 (cleaned up). That harm cannot be undone even 

2 Though that entitlement is not express in the Constitution or 

federal law, the Supreme Court long ago discarded the rule that 

a value or interest must “rest[] upon an explicit statutory or 

constitutional guarantee” to warrant interlocutory review. 

Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 

(1989) (emphasis added). The value need only “originat[e] in 

the Constitution or statutes,” or be “embodied in” those 

sources—as the separation of powers does and is. Digital 

Equipment, 511 U.S. at 879. 
11

if the officer is acquitted. See Sell, 539 U.S. at 177. The

problem with erroneous Bivens extensions, then, is “not limited 

to liability for money damages,” Mitchell v. Forsyth, 472 U.S. 

511, 526 (1985); a more serious risk is hindrance of 

government interests. See Egbert, 142 S. Ct. at 1805 (courts 

inevitably “impair governmental interests” when they 

misapply the Bivens special factors analysis) (cleaned up). The 

Supreme Court has signaled that we should proactively 

mitigate those harms—including on our own initiative. See id.

at 1806 n.3 (courts have a sua sponte “responsibility” to 

“evaluate any grounds that counsel against Bivens relief,” even 

those not raised by the parties, because “recognizing a Bivens

cause of action is an extraordinary act”) (cleaned up). We’ve 

done the same by setting aside party waiver to correct Bivens

errors. See Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018) 

(overlooking waiver to reach the cognizability of a Bivens

cause of action because “[t]o rule otherwise would be to allow 

new causes of action to spring into existence merely through 

the dereliction of a party”).

In sum, a court’s wrongful arrogation of the legislative 

power to create a cause of action for claims of constitutional 

torts against federal officers violates the constitutional 

separation of powers and disrupts effective governance. 

Because those harms are immediate and those interests

essential, an order wrongly authorizing a Bivens claims to 

proceed is “effectively unreviewable” on appeal after final 

judgment.

2

Having explained why Boresky satisfies Swint’s third 

criterion, I proceed to discuss the first two. 
12

A decision authorizing a Bivens cause of action resolves an 

important question of law separate from the claim’s merits. 

Whether a plaintiff can show that a federal officer committed 

a constitutional tort against him is legally distinct from whether 

his claim is cognizable under Bivens. See Dongarra, 27 F.4th 

at 177 (explaining that a Bivens plaintiff must clear two distinct 

“hurdles” to recover damages: show an invasion of his legal 

rights, and show that “Bivens lets him sue”). That’s why the 

District Court could analyze the Bivens question here without 

adverting once to Fourth Amendment doctrine. See Graber v. 

Dales, 2019 WL 4805241, at *2–6 (E.D. Pa. Sept. 30, 2019). 

And the threshold question of cognizability does not merge

with the merits question: the “fact that an issue is outcome 

determinative does not mean that it is not ‘collateral’ for 

purposes of the Cohen test.” Mitchell, 472 U.S. at 529 n.10.

Bivens analysis does require comparing the facts of an 

alleged constitutional violation to the facts of cases in which 

the Supreme Court authorized Bivens causes of action. But 

other legal issues that we review on interlocutory appeal under 

§ 1291 involve similar comparisons. Double jeopardy 

challenges, for instance, require us to determine whether 

successive prosecutions are for the same offense—yet whether 

the Double Jeopardy Clause bars the suit is distinct from 

whether the accused committed a crime. See id. at 528. In cases 

implicating qualified immunity, similarly, whether “a 

particular complaint sufficiently alleges a clearly established 

violation of law cannot be decided in isolation from the facts 

pleaded.” Ashcroft, 556 U.S. at 673. And qualified immunity 

analysis looks to precedent for law enshrining “clearly 

established” rights. Kisela v. Hughes, 138 S. Ct. 1148, 1152 

(2018) (per curiam). Yet whether qualified immunity precludes 

the suit is also distinct from whether the official’s actions were 
13

unlawful. Mitchell, 472 U.S. at 528–29. With qualified 

immunity as with Bivens, a plaintiff must do more than 

establish the merits of his tort claim to receive the requested 

relief. The majority puts the point well: though the merits 

question here is whether Boresky violated Graber’s Fourth 

Amendment rights, the Bivens question is “can [Graber] sue at 

all?” Maj. Op. 16 n.14.

Finally, a decision authorizing a Bivens cause of action 

conclusively determines whether the claim can be maintained: 

but for that decision, a court should “reject” the claim. 

Hernandez II, 140 S. Ct. at 743. Where no Bivens cause of 

action lies, courts should “stop there.” Elhady, 18 F.4th at 884. 

And once the district court rules on the issue at the summary 

judgment stage, the defendant typically will take “no further 

steps” to dismiss the claim on this ground. Abney v. United 

States, 431 U.S. 651, 659 (1977). That’s because the 

defendant’s pleadings, discovery, and summary judgment 

record almost always will show whether the facts of the case 

mirror those of the Supreme Court’s Bivens authorizations.

Under these circumstances, a court will not “meaningfully 

reconsider” its Bivens authorization after summary judgment. 

See Doe, 997 F.3d at 493. 

* * *

Egbert wasn’t the death knell for Bivens, but it nearly rang 

it. See Egbert, 142 S. Ct. at 1810 (Gorsuch, J., concurring in 

the judgment) (Egbert leaves “barely implicit” the conclusion 

that the “right answer” to whether to authorize a Bivens cause 

of action “will always be no”). The Supreme Court’s deep 

skepticism toward Bivens and its progeny highlights the 

profound separation of powers implications of every erroneous 

expansion of Bivens by federal courts. The “crucial question” 
14

here is whether deferring until final judgment our review of an 

order allowing a Bivens cause of action to proceed “so 

imperils” the separation of powers as to justify immediate 

appeal as of right. Mohawk, 558 U.S. at 108. Because I believe 

it does, I would recognize such orders as “final” under § 1291

and the collateral order doctrine.

3

3 The “discretionary availability” of interlocutory certification 

under 28 U.S.C. § 1292(b) makes the majority “hesita[nt] to 

agree” with this conclusion because that mechanism “counsels 

against” expanding the class of collateral orders. Maj. Op. 16

n.14. Though that hesitation may be prudent as a general 

matter, the majority does not explain why § 1292(b) counsels 

against collateral recognition of orders authorizing Bivens

causes of action. 

First, it doesn’t follow from an issue’s appropriateness for 

§ 1292(b) certification that the issue is unsuitable for collateral 

appeal under § 1291. Section 1292(b) authorizes parties to 

request that district courts certify, and empowers the Courts of 

Appeals to grant, interlocutory appeals involving “controlling 

question[s] of law” on which there is “substantial ground for 

difference of opinion,” provided the appeal may “materially 

advance” the litigation’s termination. 28 U.S.C. § 1292(b). If 

(collateral) orders denying a challenge to a Bivens cause of 

action satisfy those criteria, so do (collateral) orders denying 

qualified immunity or a double jeopardy defense. So even if 

the Bivens order under review satisfied § 1292(b), that fact 

wouldn’t support the majority’s holding. In any event, the 

order before us likely would not satisfy § 1292(b). After 

Egbert, the answer to the question whether courts can authorize 

a Bivens cause of action will almost always be “no.” See 

Egbert, 142 S. Ct. at 1810 (Gorsuch, J., concurring in the 
15

III

Having explained why appellate jurisdiction lies, I turn to 

the merits. Did the District Court err when it authorized a 

Bivens cause of action against Boresky for swearing out a 

warrant that lacked probable cause? It did.

We ask two questions to determine whether a Bivens cause 

of action is cognizable. Does the claim arise in a new context

by differing “in a meaningful way” from previous Bivens

causes of action the Supreme Court has authorized? Ziglar, 137 

judgment); cf. Maj. Op. 12 (“Bivens actions are very limited.”). 

So there’s little ground for difference of opinion as to whether 

authorization is permitted.

Second, the majority notes that one of § 1292(b)’s “regular 

uses is to permit interlocutory appeal to decide whether a 

statute permits a private cause of action.” Maj. Op. 15 n.14. 

But none of the cases the majority cites to support that 

statement involves a federal defendant and thus the threat to 

effective governance that Bivens authorizations pose. See

Ziglar, 137 S. Ct. at 1856. 

Courts have tools other than the collateral order doctrine to 

facilitate interlocutory appeals of important legal issues. For 

instance, 28 U.S.C. § 1292(e) and § 2072(c) authorize the 

Supreme Court to prescribe rules governing interlocutory 

appeals, including by designating certain classes of orders

“final” under § 1291. The existence of alternative mechanisms 

for interlocutory appeal gives us reason to mark the boundary 

of the class of collateral orders “stringent[ly].” Digital 

Equipment, 511 U.S. at 883. But that proposition does not 

forbid us from recognizing new collateral orders, and our Court 

continues to recognize them notwithstanding those alternative 

mechanisms. 
16

S. Ct. at 1859. If so, we then ask if any “special factors 

counsel[] hesitation” before extending Bivens into that new 

context. Id. at 1857. If there are, the cause of action cannot 

proceed. Those two inquiries often resolve into one: is there 

“any reason to think that Congress might be better equipped to 

create a damages remedy[?]” Egbert, 142 S. Ct. at 1803 

(emphasis added). The court should not authorize the Bivens

cause of action if there is.

A

Graber’s claim against Boresky arises in a new context. 

Among the circumstances “meaningful enough to make a 

given context a new one” are differences in the constitutional 

right at issue and the risk of disruptive intrusion by the 

Judiciary into the functioning of coordinate branches. See 

Ziglar, 137 S. Ct. at 1859–60. Graber’s allegations differ in at 

least these two respects from Bivens. 

The defendants in Bivens conducted a warrantless search 

during which they “manacled” a man in front of his family, 

threatened to arrest the family, booked the man at the federal 

courthouse, and subjected him to a strip search. Bivens, 403 

U.S. at 389. Here, Boresky has been sued for charging Graber

based on a warrant that purportedly lacked probable cause. So 

Graber invokes a different constitutional provision than Mr. 

Bivens did. Compare U.S. Const., amend. IV (guaranteeing 

that “no Warrants shall issue, but upon probable cause”), with 

id. (proscribing “unreasonable searches and seizures”). And 

the Supreme Court has “repeatedly refused” to extend Bivens

“beyond the specific clauses of the specific amendments for 

which a cause of action has already been implied.” Vanderklok, 

868 F.3d at 200 (emphasis added). If that weren’t enough, our 

intrusion into the Secret Service’s management of the 
17

government’s response to security breaches occurring at 

National Special Security Events would also disrupt the 

workings of the political branches. These differences from 

Bivens establish that Graber’s claim arises in a new context.

B

Second, multiple special factors counsel hesitation in 

authorizing a new Bivens cause of action for claims like 

Graber’s. We have noted that two Ziglar factors are 

“particularly weighty”: the “existence of an alternative 

remedial structure and separation-of-powers principles.” 

Bistrian, 912 F.3d at 90. Another special factor is “whether 

national security is at stake.” Id. All these factors militate 

against allowing the Bivens claim to proceed against Boresky.

An alternative remedial process is available to plaintiffs 

like Graber. The Secret Service is a component of the 

Department of Homeland Security. See 6 U.S.C. § 381. Graber 

can report alleged civil rights abuses by the Secret Service to 

DHS’s Office of the Inspector General. See Hotline, Office of 

the Inspector General, https://www.oig.dhs.gov/hotline. 

Congress has provided for a senior official within the Office to 

receive and review complaints about and to investigate alleged

civil rights abuses. 5. U.S.C. App. 3 § 8I(f)(1)–(2). That

procedure need not involve complainant participation or the 

right to judicial review. Egbert, 142 S. Ct. at 1806. What

matters is that Congress or the Executive has created a remedial 

process it deems sufficient to secure deterrence of wrongful 

conduct. Id. at 1807. We cannot “second-guess that calibration 

by superimposing a Bivens remedy.” Id. Doing so would raise 

obvious separation of powers concerns.
18

Authorizing a Bivens cause of action here also would 

require us to interfere with sensitive Executive-branch 

functions. See Ziglar, 137 S. Ct. at 1861; Mack v. Yost, 968 

F.3d 311, 323 (3d Cir. 2020) (declining to authorize a Bivens

cause of action because “judicial intervention” in 

“administrative decisions would improperly encroach upon the 

executive’s domain”). Those functions—coordinating the 

government’s security plan for keeping high-level officers and 

candidates safe at a National Special Security Event—involve 

national security. Whether to create a “new substantive legal 

liability” for Secret Service agents participating in a 

coordinated response to security breaches is the sort of choice 

Congress, not the courts, should make. Ziglar, 137 S. Ct. at 

1857 (cleaned up). Our failure to heed that counsel would 

embroil us in policy judgments we are ill-suited for. See 

Egbert, 142 S. Ct. at 1804–05. And we cannot “predict the 

‘systemwide’ consequences” that would follow if we were to 

expand Bivens to allow suits like this one against Secret 

Service agents. See id. at 1803–04. A “Bivens cause of action 

may not lie where . . . national security is at issue.” Id. at 1805.

* * *

The District Court’s decision to authorize Graber’s Bivens

cause of action was contrary to a spate of recent Supreme Court 

decisions. I would vacate its order and remand with 

instructions to dismiss Graber’s amended complaint against 

Boresky.