Whether the collateral order doctrine permits immediate appellate review of district court rulings denying motions to dismiss based on the non-cognizability of Bivens claims under the Ziglar v. Abbasi framework

No question identified. : APPLICATION To the Honorable Samuel Alito, Associate Justice of the Supreme Court of the United States and Circuit Justice for the Third Circuit: Pursuant to Rule 13.5 of the Rules of this Court and 28 U.S.C. § 2101(c), Applicant Michael Boresky, respectfully requests a 60-day extension of time, to and including October 9, 2023, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. 1. The Third Circuit entered judgment, over a dissent by Judge Hardiman, on February 10, 2023. See Graber v. Doe II, 59 F.4th 603 (3d Cir. 2023); App. la-31a. The court denied Applicant’s petition for rehearing en banc on May 10, 2023. See App. 41a-42a. Unless extended, the time to file a petition for a writ of certiorari will expire on August 8, 2023. This application is being filed more than ten days before a petition is currently due. See Sup. Ct. R. 13.5. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254(1). 2. Applicant Special Agent Michael Boresky is a Secret Service agent and was part of the security team for the 2016 Democratic National Convention in Philadelphia. Before that event, the Secret Service restricted access to certain areas around the Convention site and sealed those areas with a fence. App. 3a. Federal law prohibits persons from entering an area restricted by the Secret Service in conjunction with an event of national significance. 18 U.S.C. § 1752. 3. Respondent Jeremy Graber participated in protests one night of the Convention. At one point in the night, several protesters breached the fence and entered the restricted area. Philadelphia Police took seven of the demonstrators into custody, including Respondent. App. 4a. Prosecutors then charged Respondent with violating 18 U.S.C. § 1752 based on an affidavit signed by Special Agent Boresky identifying Respondent as one of the individuals who entered the restricted area. Id. at 4a-5a. Respondent remained in pre-trial detention overnight. 4. The next day, Respondent’s counsel submitted video footage to the Government demonstrating that Respondent did not breach the fence along with the other protestors. He was then released and the charge dismissed. Id. at 5a. 5. Respondent sued Special Agent Boresky in his individual capacity alleging a Fourth Amendment Bivens claim for false arrest and unlawful detention. Id. at 5a. 6. Special Agent Boresky moved to dismiss. He argued that, under this Court’s two-step framework set out in Ziglar v. Abbasi, 582 U.S. 120 (2017), Respondent’s claims represented a new Bivens context and that special factors, chiefly the risk of “judicial intrusion into matters of national security,” strongly cautioned against expanding Bivens beyond its current, limited scope. Graber v. Dales, No. CV 18-3168, 2019 WL 4805241, at *4 (E.D. Pa. Sept. 30, 2019). 7. The District Court denied that motion despite acknowledging multiple “differences” between this case and Bivens. Id. at *3-4. It recognized that “even relatively trivial factual differences might make a context new,” but nonetheless opined that Respondent’s claims were close to the “core” “Fourth Amendment activity” that Bivens already protects. Id. at *3. Even if this case presented a new context, the District Court continued, concerns did not counsel against extending Bivens to this case. Id. at *4-6. After the start of discovery, Special Agent Boresky sought summary judgment on qualified immunity grounds. The District Court denied that motion, too, finding Respondent needed additional discovery to respond effectively. App. 40a. 8. Special Agent Boresky appealed the District Court’s determination under the collateral order doctrine. Jd. at 6a-7a. That doctrine allows for parties to immediately appeal rulings that (1) “conclusively determine” a (2) “important issue completely separate from the merits” that is (3) “effectively unreviewable” in a final judgment