Prisoner obtains significant victory in Sixth Circuit appeal

Client(s) Himmelreich, Walter J.

Jones Day obtained a significant victory for pro bono client Walter Himmelreich in a Sixth Circuit appeal. Mr. Himmelreich, a federal prisoner, sued a prison official under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, alleging that she retaliated against him—by placing him in a special housing unit—for exercising his First Amendment rights.

Represented by the Department of Justice, the prison official moved for summary judgment on the ground that Mr. Himmelreich has no Bivens remedy. The district court denied summary judgment. The prison official immediately appealed, but did not pay the appellate filing fee. The Sixth Circuit dismissed the prison official’s appeal for lack of jurisdiction because the official concededly did not preserve a qualified-immunity argument and the appeal did not independently satisfy the collateral order doctrine. The Sixth Circuit also held that Bivens defendants, including those represented by the Department of Justice, must pay the appellate filing fee since they are sued in their personal capacities and cannot benefit from an exemption for the United States. Both holdings are issues of first impression in the federal courts of appeals.

Walter Himmelreich v. Federal Bureau of Prisons, et al, No. 19-4146 (6th Cir.)