Will the Supreme Court Finally Dismantle Bivens’s House of Cards?

In the wake of the fatal shootings of Alex Pretti, Renee Good, and Johan Sebastián Guerrero, many Americans were dismayed to learn of what the Cato Institute calls “the legal black hole” in which federal law enforcement officers operate. Unlike their counterparts in state agencies, federal agents cannot be sued under 42 U.S.C. § 1983.

In theory, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971) permits claims against federal agents directly under the Constitution. But the steady erosion of Bivens on various doctrinal grounds has left plaintiffs—no matter how meritorious—with vanishingly small odds of ever recovering more than a vague promise of potential liability someday in some other case. Indeed, the authors personally know of only one Bivens case in the past two decades in which a jury’s verdict for the plaintiff has withstood appeal. (We reluctantly turned to artificial intelligence as a last resort. It could not even hallucinate additional examples.)

On Nov. 9, the Supreme Court will hear oral arguments in Nielsen v. Watanabe, an Eighth Amendment case that could end remedies under Bivens altogether. Eliminating even this narrow possibility for constitutional accountability has attracted significant, understandable alarm from big names ranging from the Cato Institute and the Constitutional Accountability Center to prominent law professors such as Stephen I. Vladeck, James Pfander, and Alexander Reinert.

This article’s authors, on the other hand, would welcome Bivens’s demise. And not just because, as former Department of Justice career lawyers, we spent a combined half century defending members of the federal workforce.

The problem with Bivens is that, from any ideological perspective, it is a deeply inadequate means of addressing constitutional wrongs. Ending Bivens would be less of a bang than a whimper. And it could spur Congress to take long-overdue action—just as it did after Chisholm v. Georgia (1793), after Dred Scott v. Sanford (1857), after Westfall v. Erwin (1988), after Employment Division v. Smith (1990), after FDA v. Brown & Williamson Tobacco (2000), after Toyota v. Williams (2002), and after Ledbetter v. Goodyear (2007). For the prospect of real federal constitutional accountability, a tort doctrine of essentially pyrrhic value would be a small price to pay.

Nielsen v. Watanabe: The Easy Case That Asks a Hard Question

Nielsen v. Watanabe concerns a prison nurse’s (Nielsen’s) alleged delay in referring an inmate (Watanabe) to a medical specialist for what turned out months later to be a fractured tailbone. We agree with Neilsen’s counsel, Jeffrey Lamken: Under what remains of the Bivens doctrine, “[t]his should have been an easy case” in which to conclude that no Bivens remedy was available. And we admire the skill Watanabe’s counsel, Samuel Weiss, deploys in making the best possible argument to the contrary. But the fact remains that, even taking Watanabe’s allegations as true, the claim resembles garden-variety negligence far more closely than any scenario in which the Court has ever sanctioned a constitutional claim.

The closest analog is Estelle v. Gamble (1976), a § 1983 case over an allegedly undertreated back injury in which the Supreme Court famously declared that “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” In short, under any fair reading of the modern case law, Watanabe loses. The harder question is whether his case takes Bivens down with it.

Background

By all accounts, Nielsen—the staff nurse sued for $3 million—saw Watanabe, the inmate, only once, in July 2021. This was in the immediate aftermath of a gang riot at FDC Honolulu, in which Watanabe had been beaten severely with a “lock in a sock.” Watanabe alleges that Nielsen told him to “stop being a crybaby” and refused to send him to a hospital. (On this latter point, it is worth noting that under Bureau of Prisons policy, the decision to transport an inmate to an outside medical provider appears to be above Nielsen’s pay grade.)

For months, according to Watanabe, prison officials (not Nielsen) denied him medical attention beyond over-the-counter painkillers. In February 2022, Watanabe was diagnosed with a fractured coccyx and promised a visit to an outside specialist. By July 2022, Watanabe was still waiting. Apparently attempting to prompt agency action, Watanabe, then acting pro se, filed an Eighth Amendment lawsuit against Nielsen personally under Bivens.

The Current Bivens Standard

As the law stands now, a Bivens claim cannot move forward without first surviving a virtually insurmountable separation-of-powers inquiry that favors judicial abstention:

A) Does the case present “a new Bivens context”—meaning does it differ “meaningfully” from Bivens, Davis v. Passman, and Carlson v. Green?

B) If so, do any “special factors” even “arguably” suggest that Congress is better suited than the courts to “weigh the costs and benefits of allowing a damages action to proceed”?

Courts now repeatedly warn that implying remedies is “disfavored.” Modern doctrine sets an exceedingly low bar for finding a “special factor.” It is difficult to imagine a future Bivens claim that could survive a faithful application of this level of scrutiny.

Even in the unlikely event that a court applying recent precedent nonetheless implies a constitutional remedy over the objection of Justice Department-represented federal defendants, a plaintiff must next confront qualified immunity. Qualified immunity protects federal officials unless they personally violate a right so clearly established that any reasonable officer would have behaved otherwise. The future of qualified immunity is an issue for another day, but suffice it to say the doctrine has a chorus of detractors. The Supreme Court applies the doctrine so generously in law enforcement cases that Justice Sonia Sotomayor has accused her colleagues of “tell[ing] the public that palpably unreasonable conduct will go unpunished.” It is against this backdrop that Watanabe sued for alleged deliberate indifference to his medical needs. 

Nielsen’s Procedural Posture

The district court dismissed the case on “special factors” grounds, citing alternative remedies under the Bureau of Prisons’s Administrative Remedy Program and the Federal Tort Claims Act (FTCA). The U.S. Court of Appeals for the Ninth Circuit reversed and denied rehearing en banc, holding that Watanabe should have been allowed to sue Nielsen under the Eighth Amendment.

The Supreme Court granted certiorari on the availability of an Eighth Amendment remedy. Importantly, this is the only question before the Court. No court has explored in discovery, let alone determined, what actually happened between Nielson and Watanabe, whether (or how) the Bureau of Prisons denied Watanabe medical care, or whether any aspect of his treatment was “cruel and unusual.”

Petitioner and respondent have now filed their merits briefs. Three amici support Nielsen: the United States, a coalition of 19 states, and an attorney and self-described whistleblower. A bevy of amicus briefs support Watanabe.

The Hard Question: How Much of Bivens to Raze?

As it stands, as a practical matter, the Supreme Court has affirmatively recognized an implied constitutional tort remedy against individual federal law enforcement officers in only two contexts: Bivens itself (a Fourth Amendment claim for a warrantless search inside a home), and Carlson (an Eighth Amendment deliberate indifference claim by a federal prisoner). A third case, Davis recognized a remedy for a Fifth Amendment claim by a congressional staffer who alleged she was fired because of her gender, but subsequent federal statutory developments made that context obsolete. In response to the exploding use of the Bivens remedy, particularly in the post-9/11 era, the Supreme Court spent basically the next half century explaining when and why a constitutional tort remedy does not exist.

Nielsen is unusual in that the briefing complicates rather than sharpens the core choices for the Supreme Court. Watanabe, of course, advocates for Carlson’s preservation (and, by implication, Bivens). Nielsen invites the Court to use the case as an opportunity to confront and overrule Bivens, for reasons we essentially agree with: the Supreme Court’s repudiation of its core reasoning, the doctrine’s unworkability in practice, the false hope Bivens gives litigants, and the cover it gives Congress for failing to act. No surprises there.

More curious is the government’s proposal: Do not overrule anything just yet. Merely “clarify that Carlson is now moribund” and leave the question of the future of Bivens for a later Fourth Amendment case (maybe). The government’s suggestion would sweep all federal prisoner claims off the table while leaving Bivens itself nominally alive. The government offers no explanation for its preference for such an artificially narrow ruling. And the government’s willingness to read prisoner cases out of existence entirely while leaving Bivens’s corpse on the table is as doctrinally backward as it is unsettling.

Our Hot Take: Bivens Is a Teardown

We do not know why the government would prefer that the Court address Carlson but not Bivens, when the cases’ legal and theoretical underpinnings are virtually indistinguishable. Even those amici who argue that Watanabe ought to be allowed to sue a prison medical provider under the Eighth Amendment for an alleged delay in medical care generally acknowledge, at least implicitly, that Carlson and Bivens rise—or theoretically fall—together. That is a point with which we agree, and it exposes why the government’s position misses the mark. For the most part, the amici set aside the past 50 years of Supreme Court precedent in favor of a paradigm that treats common law constitutional damages actions as the historical status quo. The few amici who do squarely confront that intervening half century, such as Vladeck, candidly acknowledge they do so to explain why the Court’s later approach to shrinking Bivens got it wrong.

Neither Watanabe nor his supporting amici grapple in any significant way with the practical realities of litigating implied remedies in the constitutional-tort arena—the realities actual judges confront in actual cases. Congress needs to step in. The plethora of scholarly theories that have developed in an attempt to discern which federal or state common-law claims may (or may not) continue to coexist alongside modern federal statutes like the Westfall Act (making a claim against the United States the exclusive remedy for certain common-law torts) and the Religious Freedom Restoration Act (permitting lawsuits for government activity that substantially burdens religious exercise) bear this out. If the rules governing those remedies need recalibration—or more importantly, setting in the first instance—and 50 years of litigation make clear that they do, Congress—not a series of ad hoc judicial adjustments—is the institution in which the solution properly lies.

Perhaps surprisingly, many of the government’s other arguments give us pause. For just one example, its discussion of modern “special factors” analysis is oversimplified: The brief all but ignores the central difference between Nielsen and Carlson, what Nielsen’s counsel describes as “the immediacy of the inmate’s medical emergency and death.” This matters because in a life-threatening emergency—such as Carlson—potential administrative and equitable relief cannot address the constitutional violation. The government buries the point under a digression on state survivorship law and the costs of off-site medical care.

The government also repeatedly invokes the political branches’ “special province” in running prisons. The deferential standard articulated in Turner v. Safley, with respect to day-to-day prison administration, is simply not on par with military, national security, or border security concerns—each with explicit textual roots in the Constitution that carry significant separation-of-powers weight when raised appropriately—that the government invokes here. And then there are the arguments (mostly from the government) that, in our view, warrant special attention because they attempt to cabin Carlson yet belie the fundamental instability of the Bivens doctrine itself. We address those here:

Continuing to Indulge the Fiction of a “Moribund” Remedy Serves No One

Even as it concedes that Bivens litigation involving prisons is dead, the government asks the Supreme Court to “clarify that Carlson is now moribund” rather than overrule it. As the Court observes in Edwards v. Vannoy (2021), “continuing to indulge” a fiction that offers litigants no real chance of success “misleads litigants and judges” and “needlessly expends the scarce resources of” courts and counsel.

The government does not dispute this point. Instead, it quotes the same line, inexplicably replacing Edwards’s “litigants” with “prisoners.” The government does not explain how zombie case law such as Carlson and Bivens would somehow cause less harm if labeled “moribund.” Nor does the brief explain why Carlson is any more worthy of the designation than the equally dead letter of Bivens. This case is like Edwards. The Court should finally “acknowledg[e] reality and stat[e] the obvious.” The government offers no reason—compelling or otherwise—to ignore that reality.

Along the same lines, the practice of hollowing out precedent without overruling it is jurisprudentially muddy. The Court recently did something similar in Cisco Systems, Inc. v.Doe, leaving Sosa v. Alvarez-Machain technically on the books while draining it of any practical force. Certainly, the Court can overrule precedent even in far more consequential matters. But this is not housekeeping. A precedent left on the books can still govern issues the Court has not silently erased, while lower courts and litigants must guess what remains. If the Court means to write a case out of existence, it should have the institutional courage to say so. Judicial evasion not only is antidoctrinal, but it also invites legislative evasion.

Justices Neil Gorsuch and Clarence Thomas have already said that “the time has come to consider discarding the Bivens doctrine altogether.” Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett joined Cisco’s rejection of judge-made rights of action, a logically indistinguishable scenario. If anything, Cisco had stronger statutory support: There is an Alien Tort Statute at least, with far greater specificity than the general federal question statute.

Nielsen offers Justices Elena Kagan, Ketanji Brown Jackson, and Sotomayor an opportunity grounded in constitutional accountability—not indifference—to agree with the other six: Overruling Bivens, rather than resurrecting it, is doctrinally sound and likely the only way to force serious consideration of a statutory remedy.

There Is No Principled Reason to Save the Bivens Question for Another Day

Bivens cases are extraordinarily expensive to litigate for everyone involved, including taxpayers. To name just a few of its unique burdens: lost employee productivity lost, agency resources diverted to meet discovery demands, qualified candidates deterred from federal service, and official judgment unduly compromised for fear of liability.

So we are mystified by the government’s insistence that the Supreme Court kick the Bivens question down the road to be addressed “in the context of a Fourth Amendment case that more closely resembles Bivens itself.” This, too, comes with no explanation. Surely the government would raise whatever benefit exists to postpone the inevitable. And if Bivens had enabled meaningful recovery for more than just the one plaintiff we know of in the past two decades, that would have been worth mentioning. The government’s silence on this point is deafening.

A third omission is also telling: The reference to “a Fourth Amendment case that more closely resembles Bivens itself” without acknowledging the petition for certiorari it filed in Herzon v. Arias this July. Herzon involves “a Fourth Amendment excessive-force claim arising out of the execution of an arrest warrant.” The government’s petition did not ask the Supreme Court to reconsider Bivens. Stranger still, the government’s Herzon brief alternatively asks the Supreme Court to hold Herzon for Nielsen—because Nielsen might recast the new-context inquiry—all without acknowledging the possible overruling of Bivens. The elephant remains squarely in the room.

Watanabe’s counsel correctly points out Carlson’s “unusually weighty” presence when it comes to prison litigation, and the danger of “redefining Carlson as a null set.” But far from being reasons to retain it, this is strong evidence for putting the entire judicial misadventure of implied constitutional tort “remedies” to rest. That is especially so when even Watanabe acknowledges that “Carlson would likely be decided differently today.”

Understandably, given his stake in Carlson’s survival, Watanabe and his amici stitch together a patchwork of unrelated federal statutes (for example, the Westfall Act and the Prison Litigation Reform Act) urging that Congress has somehow affirmatively endorsed Carlson’s “viability, scope, and substance.” Watanabe maintains Congress, not the Court, should overrule Carlson. But Congress has never tried to craft a damages remedy for the constitutional torts of federal actors—whether against federal inmates or anyone else—and no amount of creativity can fill that legislative vacuum.

True, as several amici point out, Congress has legislated around Bivens. But whatever might be gleaned from individual legislators or passing references in legislative history is a far cry from adopting a statutory remedy into law. Despite some amici’s protestations, Congress has not in fact “done the hard work.” To suggest otherwise places the cart miles ahead of the horse.

Equally as certain, adopting the government’s proposed half measure of a decision would leave judges with the Sisyphean task of applying precedents the Supreme Court refuses to either honor or overrule. It would also preserve the fiction that a federal damages remedy exists, allowing Congress to continue treating constitutional accountability as someone else’s problem. The Court should not wait for some mythic Fourth Amendment case identical to Bivens (which, remember, involved officers of the Federal Narcotics Bureau, a long-shuttered agency with no modern-day analog). By the government’s and indeed the Supreme Court’s own logic, one will never exist.

Every Argument for Declaring Carlson “Moribund” Counsels in Favor of Eliminating Bivens

• The government gives renewed weight to the FTCA as an alternative remedy, even though Carlson rejected that argument. The government’s reasoning is summarized in four bulleted arguments, three of which apply equally outside the prison and Eighth Amendment contexts.
• The government relies on Teague v. Lane and Cisco, cases in which the Supreme Court reconsidered a doctrine at its source. Cisco is particularly telling: It described the class of cases in which courts may create private rights of action without invading the political branches’ prerogatives as “in truth a null set.”
• The government argues that current doctrine, faithfully applied, would “finish off Carlson entirely,” that later decisions rejected Carlson’s rationales, and that the decision was “egregiously wrong.” Every proposition applies at least as forcefully to Bivens, the source of the doctrine.
• The government calls Carlson unworkable and invokes stare decisis values of evenhandedness, predictability, and consistency. Yet federal judges—not merely a litigant or amicus—have repeatedly identified Bivens itself as the source of the unworkability. And the government’s concluding principle supplies the answer: When the judiciary usurps authority assigned to Congress, it has an independent duty to correct the encroachment.

And perhaps our favorite of the government’s arguments, “Carlson also had harmful ‘jurisprudential and real-world effects.’”

Retiring the fiction of individual liability invites reform far more meaningful than briefly reviving Watanabe’s one Eighth Amendment claim. History suggests this must come from congressional oversight, public pressure, political consequences, official-capacity suits for declaratory and injunctive relief, and direct judgments against the United States.

A New Deck: Laying a Solid Foundation for Federal Constitutional Accountability

We, the authors, are eternal optimists. Reversing Bivens could bring us a gigantic step closer to sound federal statutory reform. A common sense, political and legislative consensus is achievable as early as the 2028 election cycle by finding common ground across a wide range of equity holders, from civil rights plaintiffs to federal law enforcement and carceral employees and their agencies, to federal courts, to the public at large.

When the horrors of Abu Ghraib—another failed Bivens context—surfaced, Congress intervened swiftly to prohibit waterboarding and limit interrogation practices. Congress has acted at other times when tort systems proved ill-suited to redress injuries that fairness and public opinion demanded be addressed. Consider the Vaccine Injury Compensation Act, the Radiation Exposure Compensation Act, and the September 11th Victim Compensation Fund. These measures—including several recent amendments and extensions—illustrate that with enough motivation, Congress can design targeted tort and quasi-tort remedies that balance victim interests, public accountability, and institutional stability while insulating putative defendants who carry out vital federal functions.

We are in no position to speculate as to whether or why the Trump administration may prefer that Congress not address the fundamental quagmire that is Bivens. But leaving Bivens impotent on the books will lead to exactly that. Drawing on the practical lessons learned from litigating a broad range of Bivens claims, we encourage Congress to step up by crafting a statutory regime that serves victims, federal employees, courts, and the public. Our suggestions:

• Create a statutory damages remedy for (a) Fourth Amendment misconduct by hands-on federal law enforcement officers and (b) Eighth Amendment violations when the nature of the injury makes administrative, declaratory, or injunctive relief impossible (such as in Carlson but not in Neilsen).
• Pave the way for entity liability by waiving sovereign immunity to permit claims under these two theories based on unconstitutional federal conduct.
• Pay judgments from agency funds.
• Borrow from the FTCA provisions that make the United States the exclusive party responsible for acts and omissions committed within the scope of federal employment, except in a narrowly defined class of willful or wanton misconduct that could support punitive damages.
• Foreclose individual-capacity liability for Cabinet officials and other senior policymakers whose reach extends nationwide (the claims best suited to resolution via alternative means, the most likely to discourage competent individuals from serving in federal office, and which involve so many plaintiffs that no individual could ever satisfy judgments).
• Replace qualified immunity with clear statutory standards and procedures that give victims, federal employees, and courts more predictable outcomes.

The Supreme Court should accept Nielsen’s invitation to overrule Bivens, saying plainly what its cases already mean, and finally fold the shaky house of cards for good. Only then will Congress have to confront what federal constitutional accountability should actually look like.