A prisoner's broken tailbone puts the right to sue federal officers before the Supreme Court

The Supreme Court heard argument on Monday in Nielsen v. Watanabe, a case about a federal prisoner's broken tailbone that could decide whether people can still sue federal officers for money when those officers violate the Constitution. The petitioner, a federal prison nurse, has asked the justices to go further than any recent ruling and overrule Bivens v. Six Unknown Named Agents, the 1971 decision that first allowed such suits. The Trump administration agrees he should win but has asked the Court not to overrule Bivens in this case.

The docket lists three lawyers at the lectern: Lucas M. Walker for the nurse, Francis Nielsen; Vivek Suri, an assistant to the Solicitor General, for the United States; and Joshua M. Wesneski for the prisoner, Kekai Watanabe. This story is based on the briefs filed in the case. 567 Politics has not reviewed a transcript, so it does not describe what the justices said or how they appeared to lean.

The claim: months of pain after a prison fight#

According to the facts summarized in the government's brief, Watanabe was held at a federal prison in Honolulu. He alleges that in 2021 he was beaten in a gang fight with a "lock in a sock." Days later he saw Nielsen, a prison nurse. He alleges that he reported severe pain and that Nielsen told him to "stop being a cry baby" and declined to send him to a hospital.

Watanabe says he made repeated requests for care but received only over-the-counter pain medication for seven months. Prison staff then diagnosed a fractured coccyx, with bone chips in the surrounding tissue, and sent him to a specialist. These are allegations in a complaint; no court has found them to be true. The case reached the Supreme Court on a narrower legal question: whether Watanabe is allowed to sue for damages at all.

A federal district court in Hawaii said no and dismissed the suit. A divided panel of the Ninth Circuit reversed, holding that the claim fits within Carlson v. Green, a 1980 decision that allowed a federal prisoner's estate to sue over deliberately poor medical care. The full Ninth Circuit declined to rehear the case over a dissent by Judge Ryan Nelson joined by nine other judges, the government's brief says. The Supreme Court agreed to hear it on June 22, according to the docket.

Three old cases and a long retreat#

Bivens is unusual because Congress never wrote it. Congress created a damages remedy against state and local officials in a Reconstruction-era law now known as Section 1983, but it never passed a matching law for federal officers. In 1971 the Court inferred a damages remedy for an unconstitutional search by federal narcotics agents. It extended the idea twice: to a congressional employee's sex discrimination claim in Davis v. Passman in 1979, and to the prison medical care claim in Carlson in 1980.

Since then the Court has refused every request to extend Bivens to a new setting. In its opening brief, Nielsen's side counts "13 cases" over 45 years in which the Court declined to do so. In Egbert v. Boule in 2022, the Court said the "heady days" when it created causes of action on its own were "long past," and it applied a test under which almost any difference from the three original cases can block a suit.

What has kept this case from being routine is that Watanabe's claim looks much like Carlson itself: a federal prisoner, a federal medical worker, and an Eighth Amendment claim of deliberate indifference to serious medical needs. The question is whether that resemblance is close enough.

Dates are drawn from the parties' briefs and the Supreme Court docket.

Nielsen: this is a new context, and Bivens should go#

Nielsen's brief makes two arguments. First, it says the case differs from Carlson in ways Congress could find meaningful. The prisoner in Carlson died within hours of an asthma attack, so for him it was "damages or nothing." Watanabe survived and could pursue other remedies, including the Bureau of Prisons' internal grievance system and a court order. The brief also points to the Prison Litigation Reform Act, passed after Carlson, which requires prisoners to use those grievance systems first.

Second, the brief says "the Court may wish to overrule Bivens." It argues that "creating causes of action is a legislative, not judicial, endeavor," that every factor the Court uses to decide whether to keep a precedent "counsels letting Bivens go," and that leaving it on the books "gives plaintiffs false hope, burdens defendants, and deters Congress from exercising its rightful role."

Missouri and 18 other states filed a brief supporting Nielsen on separation-of-powers grounds. They urged the Court to say that the three cases are "limited to their facts" and that a new implied claim is never appropriate. "Saying 'never'—rather than 'probably never'—to new implied constitutional causes of action would help clarify the law," they wrote.

The government: end Carlson claims, but not here#

The Justice Department, in a brief signed by Solicitor General D. John Sauer, sides with Nielsen on the outcome but not on the remedy he seeks. It argues that the case "arises in a context different from Carlson" for several reasons, including new prison statutes and the grievance program. It goes further than the lower-court dissenters, saying that "Carlson has become entirely obsolete" and that "no more Carlson claims will be viable."

But the government asks the Court to stop there. The Court "should not, however, accept petitioner's invitation to go further and consider overruling Bivens in this case," the brief says. If the justices want to consider that question, "it should do so in the context of a Fourth Amendment case that more closely resembles Bivens itself."

Watanabe: Congress already decided to keep these claims#

Watanabe's brief sums up the Court's approach as "This far and no further." It argues that the Court has refused to extend Bivens but "has repeatedly declined calls to overturn the doctrine entirely," and that his claim involves "the same kind of violation of the same constitutional right by the same type of defendant in the same institutional setting" as Carlson.

The brief leans heavily on two laws. The Westfall Act of 1988 made suits against the United States the only remedy for most torts by federal employees, but it expressly exempted actions "brought for a violation of the Constitution." The Prison Litigation Reform Act of 1996 then set rules for prisoner suits, including Carlson claims. In Watanabe's view, Congress "has therefore weighed the competing policy interests surrounding Carlson and determined that the claims should survive, subject to procedural and substantive limitations."

The brief also rejects the idea that death is what made Carlson different. That rule, it argues, "would exempt officers from damages liability even if they deliberately engage in heinous conduct that causes extreme pain and injury just short of death." It notes that the government's own brief admits its position would make Carlson claims a "null set."

The American Civil Liberties Union and its D.C. and Hawaii affiliates filed a brief supporting Watanabe built on the Westfall Act. It argues that Congress "left Bivens where it found it" in 1988, when courts applied Carlson to any claim of unconstitutionally poor prison medical care.

A libertarian group points to a different door#

The Institute for Justice, a libertarian public-interest law firm, also backs Watanabe but offers a fallback. It notes that if a state prison worker or an employee of a privately run federal prison had done the same thing, Watanabe could sue under Section 1983 or state tort law. It argues the Westfall Act's exemption also preserves state-law damages suits "brought for a violation of the Constitution," which it calls "the traditional way in which civil litigation addressed abusive conduct by federal officers," quoting a 2020 opinion of the Court.

That argument matters beyond prisons. The group says the Court's approach already leaves a "remedial gap" for federal abuses in "Americans' homes, cars, or businesses," settings where lower courts now routinely reject Bivens suits.

Why the case reaches beyond one prison#

The stakes are partly political. If Bivens falls, the main way to sue an individual federal officer for a constitutional violation would be gone unless Congress acts. That would include immigration agents carrying out the administration's deportation policy, which President Trump discussed in a recent 60 Minutes interview.

Some Democrats have offered a legislative answer. Sen. Sheldon Whitehouse$ of Rhode Island introduced the Bivens Act of 2025, S. 3187, on Nov. 18, 2025. It would create a damages remedy against people who violate constitutional rights while acting under federal authority, similar to Section 1983.

Supporters of narrowing Bivens make a different point about accountability. In their view, decisions about who can be sued, for how much and under what limits belong to elected lawmakers, who can weigh costs such as litigation burdens on prison staff. The states' brief puts that view as a matter of constitutional structure, not of sympathy for any particular officer.

Related cases this term#

The case is not the only one this term about how federal prisoners can go to court. The justices have also heard Maxwell v. Dinis, about whether prisoners can use habeas petitions to seek First Step Act transfers to halfway houses. In another case about suing a public employer, the Court heard Younge v. Fulton DA, a Georgia case about a defense a district attorney's office raised late in a job discrimination suit.

How the Court could rule#

The briefs point to several possible outcomes. The Court could agree with the Ninth Circuit that Watanabe's claim fits Carlson and send it back for further proceedings. It could hold, as the government urges, that the claim is a new context and that no future Carlson claim can succeed, which would leave Bivens formally in place but nearly empty. Or it could accept Nielsen's invitation and overrule Bivens outright.

A decision is expected by the end of the Court's term, typically in late June. Whatever the result, the Westfall Act and the Prison Litigation Reform Act remain on the books, and Congress can change either one, or pass a bill like Whitehouse's, at any time.

Differing perspectives

Should federal prisoners still be able to sue prison staff for damages under Carlson and Bivens?

Each position is summarized as its supporters make it, with equal weight and in alphabetical order. A summary is not an endorsement; the evidence for each is weighed in the story above.

• End Carlson claims but leave Bivens for another case

  Who holds it: The U.S. Justice Department, through Solicitor General D. John Sauer

  The government argues that new prison statutes, the grievance program and courts' limited expertise in running prisons make this a new context, and that every future prisoner suit will be one too, so Carlson has become entirely obsolete. It nevertheless urges the Court not to consider overruling Bivens here, saying any such question should come in a Fourth Amendment case that more closely resembles Bivens itself.

  In their words: Brief for the United States as amicus curiae ↗

• No, and the Court should overrule Bivens

  Who holds it: Petitioner Francis Nielsen, a federal prison nurse, and his lawyers

  Nielsen argues that creating a right to sue is a job for Congress, not courts. He says Watanabe's case differs from Carlson because Watanabe survived and could use the prison grievance system or seek a court order, and because later laws require prisoners to exhaust those remedies. He also asks the Court to overrule Bivens, saying every precedent factor counsels letting it go and that keeping it gives plaintiffs false hope.

  In their words: Brief for Petitioner Francis Nielsen ↗

• Yes, and state-law suits should stay open too

  Who holds it: The Institute for Justice, a libertarian public-interest law firm

  The Institute for Justice agrees Watanabe should win but argues the Court's approach already leaves federal abuses in homes, cars and businesses without a remedy. It says the Westfall Act also preserves state-law damages suits brought for constitutional violations, which it calls the traditional way courts addressed abusive conduct by federal officers, and that a state prison patient would already have a claim.

  In their words: Brief of Institute for Justice as amicus curiae ↗

• Yes, Congress has preserved these claims

  Who holds it: Respondent Kekai Watanabe and supporters including the ACLU

  Watanabe argues his claim matches Carlson in every respect: the same right, the same kind of defendant and the same prison setting. He says Congress preserved constitutional damages suits in the 1988 Westfall Act and set rules for Carlson claims in the 1996 Prison Litigation Reform Act. Requiring death, he argues, would shield officers whose deliberate conduct causes extreme pain just short of it.

  In their words: Brief for Respondent Kekai Watanabe ↗

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