RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0165p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WALTER J. HIMMELREICH,

Plaintiff-Appellee,

v.

FEDERAL BUREAU OF PRISONS et al.,

Defendants,

JANEL FITZGERALD,

Defendant-Appellant.

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No. 19-4146

Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

No. 4:10-cv-02404—Benita Y. Pearson, District Judge.

Argued: June 15, 2021

Decided and Filed: July 22, 2021

Before: MOORE, COLE, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: H. Thomas Byron III, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Appellant. J. Benjamin Aguiñaga, JONES DAY, Washington, D.C., for 

Appellee. ON BRIEF: H. Thomas Byron III, Anne Murphy, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. J. Benjamin Aguiñaga, 

JONES DAY, Washington, D.C., for Appellee.

>
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 2

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. This case arises from an assault upon Walter 

J. Himmelreich, a federal inmate, by another inmate while Himmelreich was incarcerated at FCIElkton. Himmelreich’s subsequent lawsuits alleged numerous claims against prison officials, 

including a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

403 U.S. 388 (1971), for retaliation in violation of the First Amendment. Himmelreich claims 

that the captain at FCI-Elkton, Janel Fitzgerald, threatened to transfer him to a higher-level 

security institution if he filed a grievance regarding the assault and that she later admitted that 

she placed him in the Special Housing Unit (“SHU”) for filing a claim under the Federal Tort 

Claims Act, thereby violating his First Amendment rights. Fitzgerald moved for summary 

judgment only on the ground that there is no Bivens remedy for a First Amendment retaliation 

claim. The district court denied her motion for summary judgment.

Fitzgerald appeals the district court’s recognition of Himmelreich’s Bivens claim for First 

Amendment retaliation and the district court’s denial of summary judgment on that claim. We 

DISMISS Fitzgerald’s appeal for lack of jurisdiction because her appeal concerns neither a final 

order nor a non-final order entitled to review under the collateral order doctrine. Given that we 

dismiss Fitzgerald’s appeal for lack of jurisdiction, we will waive appellate fees with respect to 

her appeal.

I. BACKGROUND

On October 20, 2008, another inmate, Peter Macari, assaulted Himmelreich. 

Himmelreich states in his complaint that, prior to the attack and while Macari was in the SHU, 

Macari had told prison officials that he “had a lot of stress in here.” R. 1 (Compl. ¶ 7) (Page ID 

#6). Macari singled out persons convicted of child sexual offenses as the source of his stress, 

stating that he was “not able to live with pedophiles,” and if released back into the prison’s 

general population, he would “smash a pedophile.” Id. Macari’s comments targeting 

“pedophiles” were pertinent to Himmelreich, who had pleaded guilty to one count of producing 
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 3

child pornography, United States v. Himmelreich, 265 F. App’x 100, 102 (3d Cir. 2008), and 

who, according to Himmelreich, was “reputedly, among the inmate community, one of the 

biggest pedophiles on the Elkton compound and [was] aware that other inmates have that 

perception of him,” R. 1 (Compl. ¶ 8) (Page ID #6). On October 20, 2008, despite these 

comments, prison officials released Macari from the SHU to the general population. Id. ¶ 20 

(Page ID #8). Later that day, Macari acted upon his comments targeting “pedophiles” and 

assaulted Himmelreich. Id. ¶¶ 28–36 (Page ID #9–10). In February 2009, Himmelreich filed his 

Tort Claim Notice with the Federal Bureau of Prisons. Id. ¶ 63 (Page ID #14).

Shortly after the assault, on November 14, 2008, Himmelreich alleges that Fitzgerald told 

him “in a threatening tone,” that if he continued to complain about the assault “[she would] 

personally see that [he was] transferred to a penitentiary and [he would] more than likely be 

attacked and not just beat up” there. R. 47 (06/03/13 Pl.’s Resp. to Mot. for Summ. J. at 7) (Page 

ID #275). On March 5, 2009, prison officials placed Himmelreich in the SHU without 

explanation. R. 1 (Compl. ¶ 64) (Page ID #14). Sometime in April 2009, Himmelreich states 

that “Captain J. Fitzgerald, while making rounds in the SHU, yelled at [Himmelreich] through 

his door and so loud that the inmates in the surrounding cells could hear clear as a bell: ‘You 

want to know why you’re in here? You’re in here because of the fuckin’ Tort Claim you filed! 

That’s why you’re in here!’” Id. ¶ 66 (Page ID #15). Himmelreich remained in the SHU for 

sixty days until prison officials released him on May 4, 2009. Id. ¶ 64 (Page ID #14). 

Defendants counter that prison officials placed Himmelreich in the SHU for his own protection 

after he complained of threats from other inmates. R. 163 (05/30/19 Reply in Supp. of Defs.’ 

Mot. for Summ. J. at 9) (Page ID #1648).

On February 11, 2010, Himmelreich filed a complaint against prison employees under the 

Federal Tort Claims Act (“FTCA”) based on the October 20, 2008 assault and its aftermath. 

Complaint, Himmelreich v. United States of America, No. 4:10-cv-00307-BYP (N.D. Ohio Feb. 

11, 2010). The district court granted the defendants’ motion to dismiss Himmelreich’s FTCA 

complaint because it came within the discretionary-function exception to the FTCA, 28 U.S.C. 

§ 2680(a). Mem. of Op. & Order, Himmelreich v. United States of America, No. 4:10-cv-00307-

BYP (N.D. Ohio Nov. 18, 2010).
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 4

While Himmelreich’s FTCA complaint was pending, he filed another complaint against 

the defendants asserting several claims arising out of the October 20, 2008 assault, his 

subsequent medical care, and his placement in the SHU. R. 1 (Compl.) (Page ID #1–18). The 

district court dismissed Himmelreich’s complaint pursuant to 28 U.S.C. § 1915(e), for failure to 

state a claim. R. 7 (03/11/11 Order) (Page ID #39–48). On appeal, we affirmed the district 

court’s dismissal of most of Himmelreich’s claims. We, however, vacated and remanded two 

claims to the district court because Himmelreich had plausibly pleaded the elements of a First 

Amendment retaliation claim and an Eighth Amendment failure-to-protect claim. Himmelreich 

v. Federal Bureau of Prisons, No. 11-3474 (6th Cir. May 7, 2012) (order). The defendants 

moved to dismiss Himmelreich’s two remaining claims for failure to exhaust administrative 

remedies and for falling under the FTCA’s judgment bar rule, which provides that a judgment in 

an FTCA action precludes other lawsuits against the individual defendants pursuant to 28 U.S.C. 

§ 2676. R. 45-1 (04/26/13 Mot. for Summ. J.) (Page ID #237–43); R. 50 (06/18/2013 Reply to 

Pl.’s Resp. 5–9) (Page ID #325–29). The district court granted the defendants’ motion for 

summary judgment. R. 53 (07/18/13 Order & Decision) (Page ID #431–37).

We reversed the district court’s judgment and remanded for further consideration of 

Himmelreich’s claims. Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576 (6th Cir. 2014), 

aff’d and remanded sub nom. Simmons v. Himmelreich, 136 S. Ct. 1843 (2016) (per curiam). 

We concluded that Himmelreich had raised a genuine dispute of material fact as to whether 

Fitzgerald’s threats had rendered the administrative grievance process functionally unavailable 

and thus excused his failure to exhaust administrative remedies. Id. at 577–78. As for the import 

of the FTCA’s judgment bar provision, we held that the district court’s dismissal of 

Himmelreich’s FTCA suit for lack of subject-matter jurisdiction did not trigger the FTCA’s 

judgment bar rule. Id. at 578–80. The Supreme Court granted the defendants’ petition for 

certiorari on the second issue to resolve a circuit split regarding whether the FTCA’s judgment 

bar provision applies when the district court dismisses the FTCA suit for lack of subject-matter 

jurisdiction because the suit came within the discretionary-function exception, and the Court 

affirmed our decision. Himmelreich, 136 S. Ct. at 1846, 1850.
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 5

This brings us to the subject of this appeal. The defendants again moved for summary 

judgment, this time on the grounds that prison employees were entitled to qualified immunity on 

Himmelreich’s Eighth Amendment failure-to-protect claims, and that Himmelreich’s First 

Amendment retaliation claim against Fitzgerald was not a cognizable Bivens damages action. 

R. 142-1 (02/25/2019 Mem. in Supp. of Mot. for Summ. J.) (Page ID #715–52). The defendants 

notably did not raise qualified immunity as a defense to Himmelreich’s Bivens damages action 

against Fitzgerald in their opening motion for summary judgment, although they subsequently 

included it in their reply brief. R. 163 (05/30/19 Reply in Supp. of Defs.’ Mot. for Summ. J. at 

8) (Page ID #1647). The district court deemed Fitzgerald’s qualified-immunity defense waived 

for the purposes of this motion. R. 165 (09/25/19 Mem. of Op. & Order at 15) (Page ID #1687).

The district court granted two of the individual defendants’ motions to dismiss the Eighth 

Amendment failure-to-protect claims based on qualified immunity. Id. at 6–15 (Page ID #1678–

87). For Himmelreich’s First Amendment retaliation claim against Fitzgerald, however, the 

district court concluded that Himmelreich had stated a cognizable Bivens damages action, and 

the court denied summary judgment on that claim. Id. at 34 (Page ID #1706).

Fitzgerald appealed. R. 166 (Not. of Appeal) (Page ID #1708). Himmelreich, then pro 

se, filed a motion to stay proceedings because Fitzgerald had not paid her appellate fees. See No. 

19-4146, R. 11 (Appellee’s Mot. at 2). We denied Himmelreich’s motion to stay proceedings 

without addressing the merits of his arguments. No. 19-4146, R. 18 (03/03/2020 Order).

II. DISCUSSION

Himmelreich asserts that this appeal should be dismissed for lack of appellate jurisdiction 

and for nonpayment of appellate fees. We agree with both of Himmelreich’s arguments, 

although we will waive Fitzgerald’s appellate fees in this instance.

A. Jurisdiction

We first “must determine that [we] have jurisdiction before proceeding to the merits” of 

Fitzgerald’s appeal. Lance v. Coffman, 549 U.S. 437, 439 (2007). The district court had 

jurisdiction under 28 U.S.C. § 1331. Our jurisdiction over Fitzgerald’s appeal is somewhat 
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 6

complicated, as it is an appeal from a non-final order. Ultimately, we conclude that we do not 

have jurisdiction over Fitzgerald’s appeal, and thus, we do not reach the merits of the district 

court’s order recognizing a Bivens remedy for First Amendment retaliation.

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

28 U.S.C. § 1291. “Ordinarily, the denial of a motion for summary judgment is an unappealable 

interlocutory ruling.” Peterson v. Heymes, 931 F.3d 546, 553 (6th Cir. 2019). There is, 

however, “‘a narrow class of decisions that do not terminate the litigation,’ but are sufficiently 

important and collateral to the merits that they should ‘nonetheless be treated as final.’” Will v.

Hallock, 546 U.S. 345, 347 (2006) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 

511 U.S. 863, 867 (1994)). The collateral order doctrine applies only to decisions that: (1) “are 

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

unreviewable” if not reviewed on interlocutory appeal. Mohawk Indus., Inc. v. Carpenter, 

558 U.S. 100, 106 (2009) (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995)). 

We determine the applicability of the collateral order doctrine “for the entire category to which a 

claim belongs, without regard to the chance that the litigation at hand might be speeded, or a 

particular injustice averted by a prompt appellate court decision.” Digital Equip., 511 U.S. at 

868 (internal citation, quotation marks, and alteration omitted). The Supreme Court has 

“repeatedly stressed that the ‘narrow’ exception should stay that way and never be allowed to 

swallow the general rule, that a party is entitled to a single appeal, to be deferred until final 

judgment has been entered, in which claims of district court error at any stage of the litigation 

may be ventilated.” Id. (internal citations omitted).

Neither the Supreme Court nor this court (nor any other circuit, as far as we can tell) has

considered whether an order denying summary judgment and allowing a new Bivens damages 

action to proceed is a collateral order subject to immediate appeal. Defendants in Bivens actions 

will likely include a claim of qualified immunity in their motion for summary judgment. Faced 

with this question of first impression, where the defendant has failed to raise a timely defense of 

qualified immunity, we hold that an interlocutory appeal from a district court order allowing a 

Bivens damages action to proceed does not come within the confines of the collateral order 

doctrine.
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 7

Fitzgerald ties our jurisdiction over her appeal to an appellate court’s well-established 

authority to review immediately appeals of district-court decisions denying qualified immunity. 

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (concluding that a district court’s denial of 

qualified immunity is a collateral order subject to immediate appeal “to the extent that it turns on 

an issue of law”). First, Fitzgerald argues that decisions about whether to recognize a Bivens

damages action are directly implicated by qualified-immunity determinations, and thus may be 

reviewed on interlocutory appeal. Second, Fitzgerald argues that the same concerns that justified 

extending the collateral order doctrine to decisions denying qualified immunity support 

extending the doctrine to district-court decisions recognizing Bivens damages actions.

For this first argument, Fitzgerald relies on trio of Supreme Court opinions in which the 

Court extended an appellate court’s authority to review immediately district court orders denying 

qualified immunity to include issues directly implicated by qualified-immunity determinations. 

In the first case, Hartman v. Moore, 547 U.S. 250 (2006), the Supreme Court concluded that 

appellate jurisdiction existed to review the issue of probable cause in a malicious-prosecution 

case where the district court had denied defendant’s motion for summary judgment based on 

qualified immunity. In arguing that the Supreme Court and the Court of Appeals did not have 

appellate jurisdiction, the appellee contended “that an interlocutory appeal can be taken from the 

rejection of qualified immunity at the summary-judgment stage only on questions turning on the 

definition of the violation, not on the sufficiency of the evidence to show that a defendant is in 

fact entitled to the immunity claimed.” Id. at 257 n.5. The Supreme Court rejected this 

reasoning, clarifying that it was “addressing a requirement of causation, which [the plaintiff] 

must plead and prove in order to win, and our holding does not go beyond a definition of an 

element of the tort, directly implicated by the defense of qualified immunity and properly before 

us on interlocutory appeal.” Id.

In the second and most relevant case, Wilkie v. Robbins, 551 U.S. 537 (2007), the 

Supreme Court concluded that appellate jurisdiction existed to review on interlocutory appeal 

whether to recognize a new Bivens damages action as part of its review of the district court’s 

decision denying qualified immunity. Quoting from Hartman, the Supreme Court noted that it 

“recognized just last Term that the definition of an element of the asserted cause of action was 
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 8

‘directly implicated by the defense of qualified immunity and properly before us on interlocutory 

appeal.’” Id. at 549 n.4 (quoting Hartman, 547 U.S. at 257 n.5). Accordingly, the Court 

concluded that the reasoning in Hartman as to elements of a cause of action applied equally to 

the “recognition of the entire cause of action.” Id.

Finally, in Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009), the Supreme Court built upon 

Hartman and Wilkie and held that appellate jurisdiction existed to review on interlocutory appeal 

the adequacy of the pleadings where the district court had both denied the defendants’ motion to 

dismiss for failure to state a claim and denied the defendants’ qualified-immunity defense. See 

id. (stating that “the sufficiency of [Iqbal’s] pleadings is both ‘inextricably intertwined with,’ and 

‘directly implicated by’ the qualified-immunity defense.” (quoting first Swint, 514 U.S. at 51, 

and second Hartman, 547 U.S. at 257 n.5)). These three cases stand for the proposition that an 

appellate court may review on interlocutory appeal decisions directly implicated by a district 

court’s denial of qualified immunity.

In Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018), the Third Circuit noted that the defendants 

had appealed the district court’s denial of qualified immunity, “[a]nd since the issue of whether a 

[Bivens] cause of action even exists . . . is a threshold question of law,” it concluded that it “ha[d] 

jurisdiction to consider [the Bivens question] as well.” Id. at 87 (quoting Vanderklok v. United

States, 868 F.3d 189, 197 (3d Cir. 2017) (citing Wilkie, 551 U.S. at 549 n.4)). Fitzgerald argues 

that we should follow the Third Circuit’s lead in concluding that we have jurisdiction over her 

appeal.

Fitzgerald, however, misunderstands the Supreme Court’s reasoning in Wilkie and 

companion cases, and the Third Circuit’s reasoning as to jurisdiction in Bistrian. In Hartman, 

Wilkie, and Iqbal, the appellate courts already had jurisdiction over the appeals challenging the 

district courts’ denial of qualified immunity. Similarly, in Bistrian, the defendants asserted a 

defense of qualified immunity in their motion for summary judgment, and the district court 

denied the request for qualified immunity, concluding that the inmate had stated a cognizable 

Bivens damages action for First Amendment retaliation. 912 F.3d at 86. True, the Supreme 

Court in Hartman, Wilkie, and Iqbal, and the Third Circuit in Bistrian, did not reach the merits of 

the district court’s denial of qualified immunity. In each case, however, the court anchored its 
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 9

appellate jurisdiction in the defendants’ appeal of the district court’s denial of qualified 

immunity. Where a defendant has not appealed the denial of qualified immunity, the appellate 

court does not have jurisdiction under the collateral order doctrine to address an underlying 

claim. For instance, in Vanderklok, the Third Circuit concluded that it had appellate jurisdiction 

to review whether the plaintiff had a First Amendment right to be free from retaliation by TSA 

employees because the district court had denied qualified immunity on that claim, but the court 

concluded that it did not have appellate jurisdiction to review the district court’s denial of 

summary judgment as to the plaintiff’s Fourth Amendment malicious-prosecution claim because 

the defendants had not sought qualified immunity on this claim. 868 F.3d at 197. As the Third 

Circuit wrote in Vanderklok, “[t]he fact that [defendant] was denied summary judgment on the 

merits of th[e] Fourth Amendment claim rather than on qualified immunity grounds deprives us 

of jurisdiction on interlocutory appeal, and we have no discretion to overlook that.” Id.

Here, for some unexplained reason, Fitzgerald did not raise qualified immunity as a 

defense in her motion for summary judgment. Instead, Fitzgerald’s sole argument in her motion 

for summary judgment as to Himmelreich’s claim against her was that he had not established a 

cognizable Bivens remedy for First Amendment retaliation. Thus, there is no qualified-immunity 

argument here that the question of whether to recognize a Bivens damages action could “directly 

implicate.”

Seemingly recognizing that the predicate denial of qualified immunity is absent in this 

appeal, Fitzgerald changes tack and argues that in these cases discussed above the Court 

“implicitly recognized that its collateral-order jurisdiction . . . renders these orders [allowing 

Bivens claims to proceed], like outright denials of qualified immunity, appealable in their own 

right.” Fitzgerald Br. at 48. Contrary to the government’s position, Himmelreich suggests that 

the Supreme Court’s decisions in Hartman, Wilkie, and Iqbal are an exercise of pendent

appellate jurisdiction that bootstraps ancillary questions onto preexisting appellate jurisdiction 

over decisions denying qualified immunity. Himmelreich Br. at 25–26 n.2. But the Court did 

not mention pendent appellate jurisdiction in these cases. Whatever the basis for the Supreme 

Court in recognizing appellate jurisdiction over matters directly implicated by the denial of 
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 10

qualified immunity, in each case there was a predicate denial of qualified immunity. Here, there 

is no predicate denial of qualified immunity, and thus, Fitzgerald’s argument fails.

Because the Supreme Court’s decisions in Hartman, Wilkie, and Iqbal do not help 

Fitzgerald, we turn to whether the district court’s order independently satisfies the three 

requirements of the collateral order doctrine. For the purposes of this appeal we assume that the 

district court’s order conclusively determines that Himmelreich has stated a cognizable Bivens

remedy for First Amendment retaliation. We also assume that the district court’s order resolves

an important question of the separation of powers that is separate from the merits of

Himmelreich’s First Amendment retaliation claim. See Ziglar v. Abassi, 137 S. Ct. 1843, 1857 

(2017).

We conclude, however, that the district court’s order does not satisfy the third 

requirement, because we can adequately review the issue of a Bivens First Amendment 

retaliation claim on appeal from the final judgment. Fitzgerald contends that “[t]he district 

court’s order is effectively unreviewable on appeal from final judgment,” because “the 

defendant’s interest in being spared legally unwarranted litigation is ‘effectively lost’ if the case 

is allowed to proceed to trial.” Fitzgerald Br. at 43 (quoting Mitchell, 472 U.S. at 526). For this

factor, Fitzgerald argues that the same concerns that led the Supreme Court in Mitchell to permit

interlocutory appeal of orders denying qualified immunity warrant permitting interlocutory

appeals of decisions recognizing Bivens damages actions. Id. The Supreme Court in Mitchell

characterized qualified immunity as “an entitlement not to stand trial or face the other burdens of 

litigation, conditioned on the resolution of the essentially legal question whether the conduct of 

which the plaintiff complains violated clearly established law.” 472 U.S. at 526. As qualified 

immunity “is an immunity from suit rather than a mere defense to liability,” the Supreme Court 

reasoned that the entitlement “is effectively lost if a case is erroneously permitted to go to trial.” 

Id. (emphasis in original). Unlike qualified immunity, Bivens provides a plaintiff’s remedy for 

unconstitutional conduct. It does not grant defendants an entitlement not to stand trial. To the 

extent that defendants are concerned about litigating meritless cases, qualified immunity more

than adequately protects government officials from the burdens of litigation.
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 11

Fitzgerald also argues that collateral review of a district court order recognizing a Bivens

action is appropriate for interlocutory appeal because it presents a purely legal question. 

Fitzgerald Br. at 50. In Johnson v. Jones, 515 U.S. 304 (1995), the Supreme Court declined to

extend Mitchell to permit interlocutory appeal of a denial of qualified immunity where the

district court had found that there was a genuine dispute of fact. The Supreme Court reasoned 

that “considerations of delay, comparative expertise of trial and appellate courts, and wise use of 

appellate resources argue in favor of limiting interlocutory appeals of ‘qualified immunity’ 

matters to cases presenting more abstract issues of law.” Id. at 317. Taken to its logical 

conclusion, Fitzgerald’s overreaching interpretation of Johnson would permit interlocutory 

appeal of every order denying a motion for summary judgment on a legal issue.

Finally, Fitzgerald’s argument that the collateral order doctrine extends to stand-alone 

appeals of district court orders recognizing a Bivens remedy also fails because it contravenes the 

Supreme Court’s decision in Will v. Hallock, 546 U.S. 345 (2006). In Will, the plaintiffs had 

sued the United States under the FTCA for property damage. Id. at 347–48. The district court 

dismissed the plaintiffs’ FTCA claim for lack of jurisdiction because the suit fell within the 

discretionary-function exception to the FTCA. Id. at 348. While the plaintiff’s FTCA action 

was pending, the plaintiffs filed suit raising a Bivens claim for violation of their constitutional 

due process rights. Id. The government argued that the district court should dismiss the 

plaintiffs’ constitutional suit because the judgment bar of the FTCA prohibits plaintiffs from 

bringing additional lawsuits when the district court has issued a judgment in an action under the 

FTCA. Id. The district court declined to dismiss the plaintiffs’ Bivens suit, and the Second 

Circuit affirmed. Id. at 348–49. The Supreme Court declined to extend the collateral order 

doctrine to allow an immediate appeal from a district court order rejecting the judgment bar of 

the FTCA as a defense to a Bivens action. Id. at 355. The Court reasoned that the district court’s 

order allowing the Bivens claim to proceed was not effectively unreviewable because the 

government did not have an absolute right to avoid trial. Id. at 353. If that were the case, then 

the “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, 209 U.S. 123 

(1908).” Id. at 353–54. As the Will Court noted, “In effect, 28 U.S.C. § 1291 would fade out 
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 12

whenever the Government or an official lost an early round that could have ended the fight.” Id.

at 354. Here, although Fitzgerald has lost the motion for summary judgment on a Bivens claim, 

Will does not recognize an absolute right for her to avoid trial.

We can effectively review whether the district court properly recognized a Bivens

damages action after a final judgment in Himmelreich’s case. Indeed, the Supreme Court has 

reviewed a district court’s recognition of a Bivens remedy after a jury verdict and final judgment. 

See F.D.I.C. v. Meyer, 510 U.S. 471, 474 (1994). Accordingly, we conclude that the collateral 

order doctrine does not permit immediate review of a district-court order denying summary 

judgment to a defendant facing a Bivens First Amendment retaliation claim, absent the 

jurisdictional hook of an appeal of a denial of qualified immunity. We thus do not reach the 

merits of Fitzgerald’s challenge to the district court’s order recognizing a Bivens remedy for First 

Amendment retaliation. Fitzgerald lost her motion for summary judgment, and we will not 

permit her to bypass the final-decision requirement of 28 U.S.C. § 1291 and seek immediate 

interlocutory appeal. Cf. Himmelreich v. United States, No. 10-4052 (6th Cir. May 19, 2011) 

(order) (dismissing for lack of jurisdiction).

B. Appellate Fees

Himmelreich poses a novel question of whether a Bivens defendant sued in her individual 

capacity but represented by the U.S. Department of Justice (“DOJ”) is required to pay appellate 

fees. See No. 19-4146, R. 11 (Appellee’s Mot. at 2). We conclude that Fitzgerald, as a Bivens

defendant sued in her individual capacity, is required to pay appellate fees even though the 

Department of Justice represents her on appeal. Given our lack of jurisdiction over her appeal 

and the novelty of the issue, we will waive1 her appellate fees in this instance.

We appear to be in uncharted waters on this issue of appellate fees. We have not found—

and the parties have not cited—any case where a court has addressed whether a Bivens defendant 

sued in her individual capacity, but represented by the DOJ, must pay an appellate fee. To our 

1An appellant’s late payment of appellate fees is not a jurisdictional defect, see Parissi v. Telechron, Inc., 

349 U.S. 46, 47 (1955); Fed. R. App. P. 3 (commentary to the 1979 amendments) (recognizing that “the case law 

indicates that the failure to prepay the statutory filing fee does not constitute a jurisdictional defect”), and thus, we 

may waive the requirement.
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 13

knowledge, our court has not adopted a formal policy regarding payment of appellate fees by 

Bivens defendants who are represented by the Department of Justice.

In the absence of formal policy or legal justification, Fitzgerald’s counsel states that “the 

Department of Justice frequently represents government employees sued in their individual 

capacities in Bivens cases, and we are unaware of any case in which such a defendant has paid a 

filing fee.” Fitzgerald Br. at 52. It appears that in the past we have waived the appellate fees of 

Bivens defendants who are represented by the Department of Justice. See, e.g., Docket, 

Merriweather v. Zamora, No. 08-1570 (fee waived); Docket, Abel v. Harp, No. 06-4371 (same); 

Docket, Shehee v. Luttrell, No. 98-5614 (same). The Department of Justice’s and our court’s 

practices, undertaken without introspection, do not control whether Bivens defendants are 

required to pay appellate fees when represented by the DOJ. Instead, we must consider in the 

first instance whether this practice is consistent with the federal statutes governing appellate fees.

Appellants generally are required to pay fees and costs upon filing an appeal. Title 28 

U.S.C. § 1917 states that “[u]pon the filing of any separate or joint notice of appeal . . . $5 shall 

be paid to the clerk of the district court, by the appellant or petitioner.” In addition to this $5 fee, 

Congress provides that the Judicial Conference of the United States shall prescribe “fees and 

costs to be charged and collected in each court of appeals.” 28 U.S.C. § 1913. “Such fees and 

costs shall be reasonable and uniform in all the circuits.” Id.; See also Fed. R. App. P. 3(e) 

(“Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The 

district clerk receives the appellate docket fee on behalf of the court of appeals.”). Typically, if 

an appellant does not pay the appellate fees or obtain leave to appeal in forma pauperis, then we 

will dismiss the appeal for want of prosecution.2

Congress has permitted some exceptions to the general rule that appellants are required to 

pay appellate fees. The notes to § 1913 clarify that “[t]he United States should not be charged 

fees under this schedule.” Further, “[i]nsolvent litigants, including prisoners, may request 

permission to proceed without initially paying a filing fee, a benefit that comes with in forma

2Himmelreich is familiar with this consequence of failure to pay appellate fees. See Himmelreich v. United 

States, No. 10-4593 (6th Cir. Mar. 6, 2012) (order) (dismissing appeal for failure to pay appellate fee); Himmelreich 

v. United States, No. 10-4052 (6th Cir. Nov. 24, 2010) (order) (same).
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 14

pauperis status.” Simons v. Washington, 996 F.3d 350, 352 (6th Cir. 2021) (citing 28 U.S.C. 

§ 1915(a)–(b)). Fitzgerald has not sought in forma pauperis status. We thus consider whether 

Fitzgerald, sued in her individual capacity but represented by the DOJ, is akin to “the United 

States” for the purpose of appellate fees.

At the outset, Fitzgerald argues that a Bivens suit against a defendant sued in her 

individual capacity “is not an ordinary action against a private party,” because the plaintiff is 

challenging the defendant’s conduct while “acting under color of federal law.” Fitzgerald Br. at 

53. By representing a Bivens defendant, the Department of Justice is confirming that the conduct 

in question “reasonably appear[s] to have been performed within the scope of the employee’s 

employment” and that “providing representation . . . [is] in the interest of the United States.” 

28 C.F.R. § 50.15(a). Here, Fitzgerald was a federal employee at the time of her alleged 

retaliation against Himmelreich for exercising his First Amendment rights. The DOJ also 

determined that representing her was in the interest of the United States. Despite the DOJ’s 

determination that it was appropriate to represent Fitzgerald in this case, she remains sued in her 

individual capacity, not in her official capacity.

Some statutes and appellate rules treat Bivens defendants like government parties for the 

purposes of appellate filing deadlines. Title 28 U.S.C. § 2107(b), for instance, provides that 

when an action involves “the United States,” “a United States agency,” “a United States officer 

or employee sued in an official capacity,” and “a current or former United States officer or 

employee sued in an individual capacity for an act or omission occurring in connection with 

duties performed on behalf of the United States,” all parties are permitted sixty days from the 

entry of judgment to file a notice of appeal. See also Fed. R. App. P. 4(a)(1)(B). This extension 

of time applies in individual-capacity suits in “all instances in which the United States represents 

that officer or employee when the judgment, order, or decree is entered or files the appeal for 

that officer or employee.” 28 U.S.C. § 2107(b)(4). Likewise, Rule 40 of the Federal Rules of 

Appellate Procedure uses similar language to permit all parties forty-five days to file a petition 

for rehearing in cases involving such governmental defendants. Fed. R. App. P. 40(a)(1).

These statutes and rules extending preferential filing deadlines to cases involving Bivens 

defendants sued in their individual capacities do not support exempting them from appellate fees. 
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 15

At the outset, we note that these statutes and rules explicitly involve appellate filing deadlines, 

not appellate fees. These statutes undercut Fitzgerald’s argument because they treat “the United 

States” and federal employees sued in their individual capacities as distinct by listing them as 

separate groups entitled to longer appellate filing deadlines. Further, they demonstrate that 

Congress is aware of how to articulate that appellate procedures apply in cases of federal 

employees sued in their individual capacities but chose not to do so for appellate fees. Thus, the 

statutes and rules upon which Fitzgerald relies do not help her.

In other contexts, Congress has distinguished between federal employees sued in their 

official capacities and those sued in their individual capacities. For instance, in 28 U.S.C. 

§ 2412(a)(1), which governs the allocation of costs and fees when the United States is a party to 

litigation, Congress stated that the statute applies only to “any civil action brought by or against 

the United States or any agency or any official of the United States acting in his or her official 

capacity.” (emphasis added). Thus, for the purpose of allocating fees and costs, Congress does 

not consider Bivens defendants sued in their individual capacities as the United States. The 

Supreme Court interpreted another statute, 28 U.S.C. § 1391(e), which provides certain venues 

for civil actions against “a defendant [who] is an officer or employee of the United States or any 

agency thereof acting in his official capacity or under color of legal authority, or an agency of the 

United States, or the United States,” to exclude civil actions brought against federal employees 

or officials in their individual capacities. Stafford v. Briggs, 444 U.S. 527, 542 (1980). The 

Supreme Court reasoned that “[a] suit for money damages which must be paid out of the pocket 

of the private individual who happens to be—or formerly was—employed by the Federal 

Government plainly is not one ‘essentially against the United States,’ and thus is not 

encompassed by the venue provisions of § 1391(e).” Id. These statutes support our conclusion 

that “the United States,” for the purposes of § 1913, does not include federal employees or 

officials sued in their individual capacities.

Requiring that all federal employees or officials sued in their individual capacities pay 

appellate fees also avoids treating litigants differently based on their legal representation. 

A bright-line rule that Bivens defendants sued in their individual capacities must pay appellate 

fees is appropriate because a party’s legal counsel can change during Bivens litigation. In the 
No. 19-4146 Himmelreich v. Fed. Bureau of Prisons, et al. Page 16

past, we have waived the appellate fees of parties initially represented by the Department of 

Justice but who were later represented by private counsel for most of the litigation. See, e.g., 

Docket, Holder v. Saunders, No. 15-6305 (waiving fee even though the U.S. Attorney’s Office

withdrew its representation prior to briefing); Docket, Al-Bari v. Guider, No. 96-6707 (same). 

We see no reason that courts should treat Bivens defendants represented by the DOJ differently 

than those represented by private counsel for the purposes of appellate fees. In both 

circumstances, the Bivens defendant is a person sued in her individual capacity.

The use of “United States” in the notes to § 1913 is best read to exclude Bivens

defendants sued in their individual capacities. Accordingly, although we waive Fitzgerald’s 

appellate fees in this case, a Bivens defendant sued in her individual capacity generally is 

required to pay appellate fees when she files an appeal.

III. CONCLUSION

For the foregoing reasons, we DISMISS Fitzgerald’s appeal for lack of appellate 

jurisdiction because her appeal concerns neither a final order nor a non-final order entitled to 

review under the collateral order doctrine. Given that we dismiss Fitzgerald’s appeal for lack of 

appellate jurisdiction, we waive appellate fees with respect to her appeal.