The Supreme Court will hear oral argument on Monday, Nov. 9, in a lawsuit brought by a Hawaii man, Kekai Watanabe, who contends that a prison paramedic violated his constitutional rights when he failed to provide medical treatment after Watanabe was injured during a fight while in federal custody. Both the paramedic, Francis Nielsen, and the Trump administration, which filed a “friend of the court” brief supporting Nielsen, urge the justices to shut down Watanabe’s case; Nielsen also suggests that the court should go even further and foreclose efforts to recover from federal officials for violations of the Constitution.
More than 50 years ago, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court ruled that a violation of an individual’s constitutional rights by a federal official can create a federal claim for damages.
In the years that followed, the justices have extended their decision in Bivens only twice. In Davis v. Passman, in 1979, the court held that a former congressional staffer could sue a member of Congress for alleged sex discrimination in violation of the Fifth Amendment. And in Carlson v. Green, the court held that the estate of an inmate, who died after having an asthma attack, could bring a Bivens claim when prison officials had failed to provide adequate medical care for eight hours after the attack and did not send him to the hospital during that time.
But since then the court has resisted efforts to rely on Bivens. Four years ago, in Egbert v. Boule, it observed that it had “declined 11 times to imply a similar cause of action for other alleged constitutional violations” and that “in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.” Moreover, Justice Clarence Thomas noted for the majority “that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution. But,” Thomas wrote, “to decide the case before us, we need not reconsider Bivens itself.”
In the present case, Watanabe was badly injured during a gang-related fight while at a federal detention center in Hawaii. He contends that he told Nielsen, who treated him, that his pain was a 10 on a scale of 1 to 10, but Nielsen gave him only over-the-counter pain medication. Watanabe alleges that he was kept in solitary confinement for more than two months, during which he did not see a specialist or go to a hospital. When Watanabe eventually obtained an x-ray seven months later, it revealed that he had a fractured coccyx and that chips from the bone had penetrated the soft tissue in the area. He says that he continues to be in “tremendous pain.”
In February 2022, Watanabe went to federal court in Honolulu. Relying on Bivens and Carlson, he alleged that Nielsen violated his rights under the Eighth Amendment to be free of cruel and unusual punishment because Nielsen was deliberately indifferent to his serious medical needs.
The district court dismissed Watanabe’s claim. It held that Carlson did not apply because his claim arose in a new context – that is, it was not sufficiently similar to the facts of that case for his claim to go forward.
The U.S. Court of Appeals for the 9th Circuit reversed. It acknowledged that the Supreme Court “has cautioned against extending Bivens remedies to new contexts,” but in its view “Watanabe’s claim is identical to Carlson in all meaningful respects” and therefore can proceed. A deeply divided court of appeals declined to rehear the case.
Nielsen appealed to the Supreme Court, which agreed to hear the case in June.
In his brief on the merits, Nielsen contends that Watanabe’s case fails both prongs of the “demanding two-part test” that the Supreme Court has established for Bivens claims. That test, he adds, boils down to “whether there is any reason to think Congress might be better equipped to create a damages remedy.”
The first question is whether the claim arises in a new context from the three cases in which it has recognized Bivens claims. “Even ‘small’ differences from the original Bivens trio” of cases “will present a new context,” Nielsen writes: “‘a modest extension is still an extension.’” Watanabe’s claim, Nielsen argues, is not modest but is instead “meaningfully—profoundly—different” from Carlson. As an initial matter, he says, the facts are markedly dissimilar, because the inmate in Carlson died just hours after the attack, so that monetary compensation for his estate was the only possible remedy. By contrast, Nielsen asserts, Watanabe’s “injury was neither fatal nor life-threatening,” and instead of monetary damages he could have sought more treatment or a move to a hospital through either internal prison appeals or by filing a lawsuit in court.
If the context is new, Nielsen continues, the next question is whether “there are ‘special factors’ indicating that” courts are “at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’ ‘If there is even a single “reason to pause before applying Bivens in a new context,” a court may not recognize a Bivens remedy.’” Nielsen points to at least two “special factors” at play in this case that “‘suggest[] that Congress did [not] want’” prisoners to be able to recover monetary compensation from federal officials. First, he said, the Administrative Remedy Program – a grievance process created by the Bureau of Prisons in 1979 – “provides an alternative remedial structure for federal prisoners.” Second, he added, the Prison Litigation Reform Act, enacted in 1996, requires prisoners to use all available internal prison appeals like the ARP before going to court.
Nielsen further tells the justices that they should throw out not only Watanabe’s claim but Bivens along with it. Bivens, Davis, and Carlson, he says, “are relics of the bygone days when federal courts thought it appropriate to create causes of action congress had not authorized.”
The federal government sides with Nielsen to the extent that he argues that Watanabe’s claim should be thrown out. U.S. Solicitor General D. John Sauer tells the court that “Carlson has become entirely obsolete” in light of new laws like the PLRA and the creation of the ARP. “And given courts’ lack of authority and expertise in setting prison policy,” Sauer said, “courts will always have a reason to pause before extending Carlson to that new context. That means that no more Carlson claims will be viable.” But, Sauer continues, the court should decline Nielsen’s suggestion to “consider overruling Bivens in this case. If the Court wishes to consider that question,” Sauer writes, “it should do so in the context of a Fourth Amendment case that more closely resembles Bivens itself.”
In his brief, Watanabe insists that his case “arises in th[e] prototypical Carlson context.” “It is,” he writes, “a damages action against a federal prison officer who was deliberately indifferent to a federal prisoner’s serious medical needs in violation of the Eighth Amendment.” Moreover, he continues, both his claim and the claim in Carlson involved “the same kind of defendant in the same kind of federal institution under the same legal framework.” The fact that he suffered from a different medical problem than Carlson, or that the inmate in Carlson died while Watanabe survived does not make his case a “new context,” he argues. Instead, he contends, such differences “are case-specific, factual variations to which” Carlson’s “settled rule applies.”
Watanabe pushes back against Nielsen’s contention that, because he is still alive, he (unlike the inmate in Carlson) also has other remedies available to him. Only money, he says, can compensate him for “his past pain and suffering.”
Watanabe tells the justices that, contrary to Nielsen’s suggestion, Congress has indicated that claims like his and the one in Carlson should be allowed to go forward, albeit with some restrictions. He points first to the Westfall Act, a 1988 law that stripped prisoners of their ability to sue federal officers under state law for their injuries, but specifically carved out an exception for “federal constitutional claims like those in Carlson.” And although the Prison Litigation Reform Act requires prisoners to pursue all of their internal appeals “before pursuing a Carlson claim,” it nonetheless shows, Watanabe argues, that Congress intended for Carlson claims to be available.
Watanabe urges the justices to leave Carlson in place even if the court might reach a different decision today. Among other things, he argues, that decision “was not egregiously wrong” and Congress has relied on it in fashioning remedies for inmates – two factors that courts consider when deciding whether to overturn their prior cases. And more broadly, he contends, if the Supreme Court were to overrule Carlson, it “would create a novel situation, never contemplated by Congress, in which federal prisoners who are subjected to needless suffering in violation of the Eighth Amendment have no recourse against the responsible officers.”
A decision in the case is expected sometime next year.
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[ H/T SCOTUSblog ]
