The Supreme Court heard argument on Monday, November 9, in Nielsen v. Watanabe, a federal prisoner's lawsuit that could decide whether people in federal custody can still sue prison medical staff for money when they are denied care. By our count of the cases cited in the briefs, the justices have turned down every request to widen that kind of suit 13 times since 1980.
The prisoner is Kekai Watanabe. In July 2021, while he was held at the Federal Detention Center in Honolulu, rival gang members attacked him, according to the petitioner's brief. He says he told Francis Nielsen, a paramedic at the facility, that his pain was ten out of ten, and that Nielsen refused his request to go to a hospital. He alleges that over the following months he got over the counter pain medication and no real treatment. He was later diagnosed with a fractured coccyx, the tailbone, with bone chips in the surrounding tissue. He sued Nielsen personally for $3 million.
Nielsen's side tells a different story about that visit. His brief says the medical records show that, after consulting an on call physician, Nielsen gave Watanabe an anti inflammatory injection, a prescription for ibuprofen and advice to do gentle stretching and return to sick call. Watanabe does not allege any later contact with Nielsen, the brief says. None of those facts has been tested at trial. The case was thrown out before that point.
The three cases that started it
Congress never passed a law letting people sue federal officers for money when those officers violate the Constitution. The Supreme Court created that remedy itself in 1971, in Bivens v. Six Unknown Named Agents, a Fourth Amendment case against federal narcotics agents. It extended the idea twice. Davis v. Passman in 1979 allowed a sex discrimination claim against a member of Congress by a fired staffer. Carlson v. Green in 1980 allowed an Eighth Amendment claim on behalf of a federal prisoner who died after prison officials failed to treat an acute asthma attack, which the petitioner's brief describes as causing his death within hours.
Watanabe's case is built on Carlson. His lawyers, from Weil, Gotshal and Manges and the group Rights Behind Bars, say in their merits brief that he reported "extreme (ten out of ten) pain" and that the claim in Carlson "concerned the same kind of violation of the same constitutional right by the same kind of defendant in the same kind of federal institution under the same legal framework."
Nielsen, represented by Jeffrey Lamken of MoloLamken, says the differences matter. Carlson's prisoner died. Watanabe's injury was neither fatal nor life threatening. The Bureau of Prisons also has an internal grievance system, the Administrative Remedy Program, which Nielsen argues the Court never weighed in Carlson. His brief goes further and invites the Court to overrule all three cases. "Those cases are relics of the bygone days when federal courts thought it appropriate to create causes of action Congress had not authorized," it says.
Our count: 13 refusals in 46 years
The petitioner's brief lists every Supreme Court case since Carlson in which the justices declined to extend Bivens. We checked that list against the Court's own descriptions in Ziglar v. Abbasi (2017), Egbert v. Boule (2022) and Goldey v. Fields (2025), and sorted the cases by the kind of claim each one rejected. Here is the list in order.
1983: Chappell v. Wallace, a race discrimination suit against military officers.
1983: Bush v. Lucas, a First Amendment suit against a federal employer.
1987: United States v. Stanley, a substantive due process suit against military officers.
1988: Schweiker v. Chilicky, a due process suit against Social Security officials.
1994: FDIC v. Meyer, a due process suit against a federal agency over a firing.
2001: Correctional Services Corp. v. Malesko, an Eighth Amendment suit against a private prison company.
2007: Wilkie v. Robbins, a due process suit against Bureau of Land Management officials.
2010: Hui v. Castaneda, a suit against Public Health Service officers that the Court held Congress had foreclosed by statute.
2012: Minneci v. Pollard, an Eighth Amendment suit against guards at a privately run prison.
2017: Ziglar v. Abbasi, suits over the detention of noncitizens after the September 11 attacks.
2020: Hernandez v. Mesa, a suit over a Border Patrol agent's cross border shooting of a 15 year old Mexican national.
2022: Egbert v. Boule, Fourth and First Amendment claims against a Border Patrol agent in Blaine, Washington.
2025: Goldey v. Fields, an Eighth Amendment excessive force claim by a prisoner at a federal penitentiary in Lee County, Virginia.
Three things stand out in that list. First, the Court has never once said yes since Carlson. Goldey itself says the Court has "declined more than 10 times to extend Bivens to cover other constitutional violations." The brief's figure of 13 is the precise count, and it matches the cases we checked.
Second, the pace has picked up. Nine refusals came in the 37 years from 1980 through 2016. Four came in the nine years from 2017 through 2025, and the language got sharper along the way. In Egbert the majority wrote that "if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution."
Third, prisons sit close to the center of the fight. Three of the 13 refusals were Eighth Amendment cases by people in custody, Malesko, Minneci and Goldey. The first two involved private prisons, which the Court treated as a different setting from Carlson. Goldey involved federal guards and force, not medical care. Watanabe's claim is the first in this line to come back to the exact setting of Carlson itself, a federal prisoner, a federal prison employee and medical care.
Where the Ninth Circuit landed
A federal judge in Honolulu dismissed the case, finding the claim arose in a new context because Watanabe's injury was not the kind of emergency in Carlson. A divided Ninth Circuit panel, Judges Richard Paez and Lucy Koh, reversed and wrote that "Watanabe's claim is identical to Carlson in all meaningful respects," according to the SCOTUSblog preview. Judge Milan Smith dissented. When the full court declined to rehear the case, eleven judges dissented, Nielsen's brief says.
The brief also notes a concession that narrows the case. Watanabe agreed below that if his claim does present a new context, the second step of the test would bar it. So the justices are deciding, in practice, one question. Is a broken tailbone treated with pain pills the same context as a fatal asthma attack?
The government's position
The Justice Department is not a party, but the Solicitor General filed a brief supporting Nielsen and on October 13 the Court let the government share Nielsen's argument time. Solicitor General D. John Sauer agrees the claim should be dismissed and argues that later laws, including the Prison Litigation Reform Act of 1996, leave little room for new Carlson suits. He also asks the Court not to use this case to reconsider Bivens itself and suggests a Fourth Amendment case would be a better vehicle, SCOTUSblog reported.
Watanabe's brief answers that Congress has relied on Carlson for decades. The 1988 Westfall Act made the Federal Tort Claims Act the only route for most claims against federal employees but carved out suits "brought for a violation of the Constitution." The Prison Litigation Reform Act then required prisoners to use the grievance process before filing, which the brief says shows Congress chose to regulate Carlson claims rather than end them. Its stare decisis argument is blunt. "Carlson was not egregiously wrong," the brief says.
Nielsen's brief points the other way on Congress. It lists bills, including a Bivens Act of 2025 in both chambers, that would have written a damages remedy into law. None has passed.
Who lined up where
We read the cover page of every amicus brief on the Supreme Court docket. There are 13. Three support Nielsen: the United States, Missouri joined by eighteen other states, and a brief by Elaine Mittleman. Ten support Watanabe, including the American Civil Liberties Union, the Cato Institute, the Institute for Justice, the MacArthur Justice Center, the Constitutional Accountability Center and Professor Stephen Vladeck. Groups that often oppose each other in other cases, such as the Cato Institute and the ACLU, filed on the same side here.
The case also moved slowly to get here. The petition was filed on October 3, 2025, and the justices put it on their conference list four times before granting it on June 22, 2026, 262 days later. Argument came 140 days after that.
What comes next
The argument transcript had not been posted on the Court's website when this story was published. A decision is expected before the term ends next summer. For federal prisoners, the stakes are concrete. As our earlier coverage of Maxwell v. Dinis showed, lower courts sometimes point prisoners toward a Bivens suit as the place to bring a complaint about the Bureau of Prisons. If the Court rules for Nielsen on broad grounds, that door narrows further. For more on how the justices handled last week's death penalty case from Texas, see our story on the Guerrero v. Johnson argument.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
