Anas Elhady v. Blake Bradley

For decades, this Court has vigilantly enforced the final judgment rule codified at 28 U.S.C. § 1291, emphasizing the “modest scope” of the “small class” of collateral orders from which an interlocutory appeal may be taken. See, e.g., Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106-07 (2009). And for nearly as long, this Court has admonished courts of appeals not to bootstrap issues onto collateral-order appeals that are not themselves interlocutorily appealable. See, e.g., Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 49-50 (1995). Yet in respondent’s interlocutory appeal from the denial of qualified immunity, the Sixth Circuit sua sponte bootstrapped a liability issue—announcing a categorical prohibition against border-related damages remedies under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), without even reaching qualified immunity. The Questions Presented are:

1. In an interlocutory appeal from the denial of qualified immunity, does a court of appeals always have jurisdiction under § 1291 to decide whether a Bivens remedy exists for the claim against which the appellant asserts qualified immunity?

2. Are Bivens claims categorically precluded at the border, even when the plaintiff is a U.S. citizen who challenges mistreatment on U.S. soil by federal lawenforcement officers performing traditional lawenforcement duties?