Opposition Brief — Francis Nielsen, Petitioner v. Kekai Watanabe
Supreme Court briefJan 5, 2026
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No. 25-417
In the Supreme Court of the United States
FRANCIS NIELSEN, PETITIONER
v.
KEKAI WATANABE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF IN OPPOSITION
SAMUEL WEISS
RIGHTS BEHIND BARS
1800 M Street NW, Front 1
#33821
Washington, DC 20033
ZACHARY D. TRIPP
JOSHUA M. WESNESKI
Counsel of Record
CRYSTAL L. WEEKS
RACHAEL E. JONES
WEIL , GOTSHAL & MANGES LLP
2001 M Street NW
Washington, DC 20036
(202) 682-7000
joshua.wesneski@weil.com
AUGUSTUS I. IPSEN
WEIL , GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
QUESTION PRESENTED
Whether the Ninth Circuit erred in allowing respondent’s claim to go forward in circumstances not
meaningfully different from those of the claim for deliberate indifference to serious medical needs recognized in
Carlson v. Green, 446 U.S. 14 (1980).
(i)
TABLE OF CONTENTS
Introduction ...................................................................... 1
Statement .......................................................................... 3
A. Legal background .............................................. 3
B. Factual background........................................... 4
C. Procedural history ............................................. 4
Reasons for denying the petition .................................... 7
I. The claimed conflicts do not merit this
Court’s review .......................................................... 7
A. The division concerning the ARP is
nascent and shallow .......................................... 8
B. The claimed disagreement over the
severity of injury reflects case-specific
variation, not doctrinal disagreement ........... 11
II. The Ninth Circuit’s decision is correct ................ 14
A. The ARP does not create a per se new
context for all Carlson claims ......................... 14
B. An inmate need not die in order to bring a
Carlson claim ................................................... 18
C. There is no basis for revisiting Carlson ........ 19
III. The issue is not important and recurring ........... 25
IV. This case is a poor vehicle .................................... 27
Conclusion ....................................................................... 28
(ii)
TABLE OF AUTHORITIES
Cases
Page(s)
Arias v. Herzon,
150 F.4th 27 (1st Cir. 2025) ............................. 8, 15
Bartenwerfer v. Buckley,
598 U.S. 69 (2023) ................................................ 21
Bivens v. Six Unknown Fed.
Narcotics Agents,
403 U.S. 388 (1971) ............. 3, 5, 6, 7, 8, 10, 11, 12,
15, 16, 18, 19, 20, 21, 22, 23, 25, 26
Boyle v. United Techs. Corp.,
487 U.S. 500 (1988) .............................................. 24
Brooks v. Richardson,
131 F.4th 613 (7th Cir. 2025) .......................... 9, 12
Cannon v. Univ. of Chicago,
441 U.S. 677 (1979) .............................................. 23
Carlson v. Green,
446 U.S. 14 (1980) .......... 1, 2, 3, 5, 6, 7, 8, 9, 10, 11
12, 13, 14, 15, 16, 17, 18, 19
20, 21, 22, 23, 24, 25, 26, 27
Chambers v. Herrera,
78 F.4th 1100 (9th Cir. 2023) .............................. 12
Chisom v. Roemer,
501 U.S. 380 (1991) .............................................. 22
Corr. Servs. Corp. v. Malesko,
534 U.S. 61 (2001) ................ 3, 9, 10, 15, 18, 21, 25
Cort v. Ash,
422 U.S. 66 (1975) ................................................ 23
Cummings v. Missouri,
71 U.S. 277 (1867)................................................. 19
Cutter v. Wilkinson,
544 U.S. 709 (2005) .............................................. 22
Davis v. Passman,
442 U.S. 228 (1979) .................................... 3, 16, 19
(iii)
Dobbs v. Jackson Women’s Health Org.,
597 U.S. 215 (2022) .............................................. 25
Egbert v. Boule,
596 U.S. 482 (2022) ............ 3, 4, 5, 8, 10, 12, 16, 18
Elliott v. Swartwout,
35 U.S. 137 (1836) ................................................ 23
Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938) ................................................ 24
Estelle v. Gamble,
429 U.S. 97 (1976) ................................................ 24
Ferreyra v. Hicks,
144 S. Ct. 555 (2024) ............................................ 25
Gamble v. United States,
587 U.S. 678 (2019) .............................................. 16
Goldey v. Fields,
606 U.S. 942 (2025) ........................................ 16, 26
Gonzalez v. United States,
145 S. Ct. 529 (2025) ............................................ 11
Hernandez v. Causey,
124 F.4th 325 (5th Cir. 2024) ................................ 8
Hernandez v. Mesa,
589 U.S. 93 (2020) .......................................... 18, 24
Hilton v. S.C. Pub. Rys. Comm’n,
502 U.S. 197 (1991) .............................................. 21
Howard v. Lyons,
360 U.S. 593 (1959) .............................................. 24
Huckle v. Money,
95 Eng. Rep. 768 (C.P. 1763) ............................... 23
Hui v. Castaneda,
559 U.S. 799 (2010) .............................................. 21
Johnson v. Terry,
119 F.4th 840 (11th Cir. 2024), cert.
denied, No. 24-1170 (Oct. 6, 2025)............. 9, 10, 14
(iv)
Kalu v. Spaulding,
113 F.4th 311 (3d Cir. 2024) ................................. 11
Kimble v. Marvel Ent., LLC,
576 U.S. 446 (2015) ........................................ 20, 22
Kurns v. R.R. Friction Prods. Corp.,
565 U.S. 625 (2012) .............................................. 19
Liles v. Oregon,
425 U.S. 963 (1976) .............................................. 27
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) .............................................. 10
Michigan v. Bay Mills Indian Cmty.,
572 U.S. 782 (2014) ........................................ 20, 25
Minneci v. Pollard,
565 U.S. 118 (2012) .............................................. 18
Muniz v. United States,
149 F.4th 256 (3d Cir. 2025) ...................... 9, 10, 12
Nat’l Football League v. Ninth Inning, Inc.,
141 S. Ct. 56 (2020) .............................................. 27
Parden v. Terminal Ry. of Ala. Docks Dep’t,
377 U.S. 184 (1964) .............................................. 21
Piper v. Chris-Craft Indus., Inc.,
430 U.S. 1 (1977) .................................................. 23
Porter v. Nussle,
534 U.S. 516 (2002) .............................................. 21
Ramos v. Louisiana,
590 U.S. 83 (2020) ................................................ 20
Rodriguez de Quijas v. Shearson/Am.
Express, Inc.,
490 U.S. 477 (1989) .............................................. 16
Ross v. Blake,
578 U.S. 632 (2016) .............................................. 10
Rowland v. Matevousian,
121 F.4th 1237 (10th Cir. 2024) ...................... 9, 13
(v)
Sargeant v. Barfield,
87 F.4th 358 (7th Cir. 2023), cert.
denied, 145 S. Ct. 285 (2024) ................................. 8
Sexton v. Beaudreaux,
585 U.S. 961 (2018) .............................................. 26
Shalala v. Ill. Council on Long Term
Care, Inc.,
529 U.S. 1 (2000) .................................................. 20
Silva v. United States,
45 F.4th 1134 (10th Cir. 2022) .............................. 9
Snowden v. Henning,
72 F.4th 237 (7th Cir. 2023), cert.
denied, 145 S. Ct. 137 (2024) ......................... 16, 26
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) .............................................. 23
Spicer v. Williamson,
132 S.E. 291 (N.C. 1926) ...................................... 23
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,
600 U.S. 181 (2023)............................................... 19
Tharpe v. Sellers,
583 U.S. 33 (2018) ................................................ 26
Transamerica Mortg. Advisors, Inc. v. Lewis,
444 U.S. 11 (1979) ................................................ 23
Waltermeyer v. Hazlewood,
136 F.4th 361 (1st Cir. 2025) ............................... 13
Watkins v. Mohan,
144 F.4th 926 (7th Cir. 2025) ................................ 9
Ziglar v. Abbasi,
582 U.S. 120 (2017) ....................... 3, 5, 6, 7, 10, 11,
15, 17, 18, 22, 23
(vi)
Constitution, Statutes & Regulations
U.S. Const.
Amend. IV .............................................................. 8
Amend. V ................................................................ 3
Amend. VIII...................................... 1, 3, 4, 5, 8, 10
Administrative Remedy Program,
28 C.F.R. 542.10-19 ................................................ 1
28 C.F.R. 542.10 ............................................. 17
Federal Employees Liability Reform
and Tort Compensation Act of 1988,
Pub. L. No. 100-694, 102 Stat. 4563 ...................... 2
28 U.S.C. 2679 ................................................ 20
28 U.S.C. 2679(b)(2)(A)................................... 20
Federal Employers’ Liability Act,
45 U.S.C. 51-60 .................................................... 21
Federal Tort Claims Act,
28 U.S.C. 1346(b), 2671 et seq. .............................. 2
Prison Litigation Reform Act,
42 U.S.C. 1997e .................................................... 17
Miscellaneous
Carlos M. Vázquez & Stephen I. Vladeck,
State Law, The Westfall Act, and the
Nature of the Bivens Question,
161 U. Pa. L. Rev. 509 (2013) .............................. 23
(vii)
In the Supreme Court of the United States
NO. 25-417
FRANCIS NIELSEN, PETITIONER
v.
KEKAI WATANABE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF IN OPPOSITION
INTRODUCTION
Respondent Kekai Watanabe’s case does not extend
Carlson v. Green, 446 U.S. 14 (1980), beyond its original
context. Watanabe alleges a violation of the same constitutional right (the Eighth Amendment) for the same
kind of conduct (deliberate indifference to a serious
medical need) injuring the same kind of plaintiff (a federal prisoner) under the same circumstances (failure to
provide adequate treatment) against the same class of
officers (medical staff at a federal prison) as in Carlson.
Along every dimension, Watanabe’s claim lines up with
Carlson. There is no “new context” here.
Petitioner nonetheless seeks review on the basis of
two alleged circuit splits—one regarding the Administrative Remedy Program (ARP), 28 C.F.R. 542.10-19,
and one regarding the severity of Watanabe’s injuries—
(1)
2
about what circumstances give rise to a new “context”
for Carlson claims. Neither warrants review.
First, petitioner overstates the claimed circuit splits.
In reality, only two courts of appeals have indicated that
the existence of the ARP is sufficient on its own to foreclose a Carlson claim. The resulting split is both nascent
and shallow, and those contrary decisions cannot be
squared with this Court’s precedent reaffirming that
Carlson remains good law in its context. And no court
has clearly adopted petitioner’s view that Carlson does
not apply unless the victim was sufficiently maimed by
or died from their injuries. The courts are therefore
largely in agreement that a claim like Watanabe’s remains viable.
Second, regardless of the nature or depth of the alleged splits, the decision below does not warrant review.
This Court in Carlson already considered the availability of alternative remedies, including under the Federal
Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq.,
yet still confirmed that a federal cause of action remains
available. Nothing about the ARP—which was in place
at the time of Carlson and routes damages claims by
prisoners to the FTCA—alters that analysis. This Court
also has never hinted (and in fact has rejected) that the
severity of the constitutional violation is a relevant factor in determining whether a plaintiff has a cause of action. And critically, Congress has legislated in clear reliance on Carlson through the Westfall Act, which
preempts state-law causes of action against federal officers but expressly carves out constitutional claims. See
Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), Pub. L. No. 100-694,
102 Stat. 4563, 28 U.S.C. 2671, 2674, 2679. Foreclosing
Carlson claims in effectively all cases—as petitioner
3
seeks—would thus contravene Congress’s determination that claims like these should be able to go forward.
This Court has made clear that Carlson is disfavored
precedent not to be expanded beyond its context. But at
the same time, the Court has confirmed that Carlson
claims remain viable within their limited sphere.
Watanabe’s claim falls squarely within the original ambit of Carlson. Certiorari should be denied.
STATEMENT
A. Legal Background
Federal officers have been subject to damages for
misconduct since the early Republic. See p. 23, infra. In
Bivens v. Six Unknown Federal Narcotics Agents, this
Court recognized a damages remedy against federal officers for unconstitutional searches or seizures. 403 U.S.
388 (1971). The Court later recognized two additional
circumstances in which plaintiffs may recover damages
against federal officers: congressional employees alleging gender discrimination in violation of the Fifth
Amendment, Davis v. Passman, 442 U.S. 228 (1979),
and federal prisoners alleging that federal prison officials were deliberately indifferent to their serious medical needs, in violation of the Eighth Amendment, Carlson, 446 U.S. 14.
Since Carlson, the Court has “consistently refused to
extend Bivens liability to any new context.” Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 68 (2001). But the Court
also has repeatedly declined to overrule Bivens, Davis,
or Carlson, reaffirming that those decisions remain “settled law.” Ziglar v. Abbasi, 582 U.S. 120, 134 (2017). Accordingly, plaintiffs may continue to bring claims that
are not “‘meaningful[ly]’ different” from those endorsed
by the Court in the Bivens trilogy. Egbert v. Boule, 596
4
U.S. 482, 492 (2022) (alteration in original) (citation
omitted).
B. Factual Background
On July 12, 2021, respondent Watanabe was in federal custody on a federal conviction in Federal Detention
Center (FDC) Honolulu when he was “brutally assaulted during a gang-related fight.” Pet. App. 2a-3a,
57a n.1. “Watanabe sustained severe injuries,” id. at 2a3a, and described his pain to two prison officials, id. at
4a, 25a. Watanabe requested treatment through the
ARP and through repeated requests to prison officials,
including petitioner Francis Nielsen, a staff nurse. Id.
at 4a, 25a-26a. “Instead of transporting him to a hospital or permitting him to be examined by a specialist, [petitioner] treated him with nothing more than over-thecounter medication for his pain.” Id. at 2a.
Several months after the attack, Watanabe finally
received an x-ray: It showed that he had a fractured coccyx and that bone chips had migrated to surrounding
soft tissue areas. Id. at 4a, 26a. Although prison officials
agreed to refer Watanabe to outside medical treatment,
ibid., Watanabe never received further treatment before
his discharge from federal custody in May 2024, id. at
4a n.3.
C. Procedural History
Watanabe brought this suit pro se in the United
States District Court for the District of Hawaii. Pet.
App. 24a. His amended complaint named four officials
at FDC Honolulu and sought damages and injunctive
relief for violations of his Eighth Amendment rights. Id.
at 5a, 16a-17a, 24a. The district court dismissed
Watanabe’s suit in full, concluding as relevant here that
Watanabe’s claim against petitioner presents a “new
5
context” under Bivens because of the “nature and severity” of his claims and the existence of the ARP. Id. at
31a-36a (citation omitted); id. at 57a-58a.
Watanabe timely appealed as to petitioner. In briefing on appeal, petitioner did not defend the district
court’s reasoning that the existence of the ARP was
enough to create a “new context.” See Pet. C.A. Br. 9-14.
The Ninth Circuit reversed. Pet. App. 2a-17a. The
panel resolved the case at step one of the two-part test
this Court applied in Egbert, 596 U.S. at 494, concluding
that Watanabe’s case did not arise in a new context because it did not “meaningfully differ from Carlson.” Pet.
App. 8a.
In reaching this conclusion, the panel considered the
“non-exhaustive series of considerations” this Court set
forth in Ziglar. Id. at 8a-10a (citation omitted). Specifically, the court found that Watanabe’s suit and the suit
in Carlson involved federal officials of the same rank,
the same Eighth Amendment right of a federal prisoner
to be free from cruel and unusual punishment through
deliberate medical indifference, and similar “acts and
omissions.” Id. at 8a-9a (quoting Carlson, 446 U.S. at 16
n.1).
Among other factors, the panel also considered the
nature of Watanabe’s injuries, noting that he was in “extreme pain” that he endured for seven months with virtually no medical care. Id. at 14a. The panel explained
that while Watanabe’s injuries were not life-threatening
like those in Carlson, that did not make this a new context because “[f]ailure to respond to an incarcerated individual’s serious medical need” does not need to be “life
threatening” to “constitute deliberate indifference.”
Ibid.
6
The panel also rejected the district court’s assumption that the existence of the ARP rendered the context
new. Id. at 14a-15a. Because the panel concluded that
the case did not present a new Bivens context at step
one, it did not proceed to step two. Id. at 15a. The panel
additionally remanded for further proceedings regarding Watanabe’s request for injunctive relief. Id. at 16a17a.
Judge Milan Smith concurred regarding Watanabe’s
request for injunctive relief, but otherwise dissented. Id.
at 18a. The partial dissent acknowledged similarities
between Watanabe’s claim and those in Carlson, but argued Watanabe’s claims were meaningfully different because his injury and the misconduct were less severe
than those alleged in Carlson. Id. at 20a-23a. Judge
Smith did not contend that the existence of the ARP rendered the context new.
The Ninth Circuit denied petitioner’s request for rehearing en banc. Id. at 77a. In a statement respecting
denial, Judges Paez and Koh reiterated that both
Watanabe’s claims and those in Carlson involved “the
same officer rank, type and specificity of official action,
judicial guidance, governing legal mandate, and risk of
disruptive intrusion by the Judiciary into the functioning of the other branches.” Ibid. And, per the panel majority, there were “no other ‘meaningful’ differences”
from Carlson. Ibid. (quoting Ziglar, 582 U.S. at 139-40).
Judge Ryan Nelson dissented from the denial of rehearing en banc, joined by nine other judges. Id. at 89a111a. Judge Nelson urged that Watanabe’s case presented a new context at step one because of the availability of the ARP and the severity of Watanabe’s mistreatment and injury. Id. at 98a, 103a-04a.
7
Judge Collins separately dissented from the denial of
rehearing en banc, id. at 111a-116a, though he acknowledged that the Court had not overruled Carlson, id. at
112a.
On September 9, 2025, the district court stayed proceedings pending resolution of this petition for certiorari. D. Ct. Doc. 43; see also D. Ct. Doc. 49 (Dec. 17,
2025).*
REASONS FOR DENYING THE PETITION
This Court’s instructions are clear: although courts
should not extend Bivens and Carlson beyond the contexts already recognized, those decisions remain binding within their existing, limited spheres. See Ziglar,
582 U.S. at 134. The panel below faithfully adhered to
that directive. Petitioner’s disagreement with the
panel’s analysis in these circumstances does not warrant this Court’s review.
I. The Claimed Conflicts Do Not Merit This Court’s Review
The two circuit splits alleged by petitioner do not justify this Court’s review. Petitioner exaggerates the first
split, regarding whether the ARP categorically forecloses all Carlson claims. In reality, that conflict is both
nascent and shallow. The second alleged split, regarding
whether purported difference in the severity of an injury
is sufficient to foreclose a Carlson claim, is largely illusory: different courts have reached different outcomes
on distinct facts. That is fact-specific variation, not a circuit conflict. This Court’s review is unwarranted.
Although petitioner has private counsel in this Court, the Department of Justice represents petitioner in the district court.
*
8
A. The Division Concerning the ARP Is Nascent and
Shallow
Petitioner focuses first on lower court decisions addressing whether alternative remedial schemes may be
considered at step one of the Bivens inquiry rather than
step two. See Pet. 15. But that distinction is immaterial
here: The panel held that “even if [the panel] were to
consider [the ARP] at step one,” Watanabe’s claim could
still go forward because it is not meaningfully different
from other claims allowed under Carlson. Pet. App. 15a
(emphasis added). The question here instead is whether
the panel was correct to reject petitioner’s view that the
mere existence of the ARP creates a per se new context
for all potential Carlson claims. Viewed through that
lens, the disagreement among the lower courts is nascent, limited, and unworthy of this Court’s review.
1. Petitioner exaggerates the purported “split” regarding the significance of the ARP at step one of the
Bivens inquiry. Some cases petitioner cites do not arise
under Carlson and do not implicate the ARP at all. For
example, petitioner cites Hernandez v. Causey, 124
F.4th 325 (5th Cir. 2024) (Pet. 15-17), but that case alleged a different constitutional violation (the Fourth
Amendment) and involved the exact same administrative remedy scheme addressed in Egbert—not the ARP,
id. at 334. And Arias v. Herzon, although fully consistent with the decision below, arose under the Fourth
Amendment and implicated the Inspector General Act,
not the ARP. 150 F.4th 27, 29 (1st Cir. 2025).
Other cases, while discussing the ARP, do not hold
that the ARP creates a per se new context for all Carlson
claims. Petitioner cites Sargeant v. Barfield, 87 F.4th
358 (7th Cir. 2023), cert. denied, 145 S. Ct. 285 (2024)
9
(Pet. 16), but the plaintiff there brought a failure-to-protect claim, id. at 360-61, 367. The Seventh Circuit emphasized that the plaintiff’s claim failed “[n]o matter
how we decipher the test—as one step or two.” Id. at
366. And the court took pains to emphasize that its
“holding is narrow.” Id. at 369. The Seventh Circuit
therefore did not hold that the ARP creates a “new context” per se for all Carlson claims. Indeed, as petitioner
elsewhere acknowledges, the Seventh Circuit continues
to allow Carlson claims. See Pet. 21 (citing Brooks v.
Richardson, 131 F.4th 613 (7th Cir. 2025) and Watkins
v. Mohan, 144 F.4th 926 (7th Cir. 2025)).
The same is true for the Tenth Circuit. Petitioner
cites Silva v. United States, 45 F.4th 1134 (10th Cir.
2022) (Pet. 17), but that case did not involve a deliberate
indifference claim and did not assert that the ARP creates a new context for all Carlson claims. Id. at 1137.
And the Tenth Circuit later clarified in Rowland v. Matevousian, 121 F.4th 1237, 1243-44 (10th Cir. 2024)
(cited Pet. 22), that the ARP does not per se create a new
context for all Carlson claims, because it considered the
ARP only at step two.
2. That leaves petitioner with two courts of appeals—the Third and Eleventh Circuits—that have held
or suggested the existence of the ARP may alone be sufficient to render a context new. See Muniz v. United
States, 149 F.4th 256 (3d Cir. 2025); Johnson v. Terry,
119 F.4th 840 (11th Cir. 2024), cert. denied, No. 24-1170
(Oct. 6, 2025). Those decisions conflict with the panel
below but cannot be reconciled with this Court’s affirmation that Carlson remains viable within its limited
sphere. See, e.g., Malesko, 534 U.S. at 72 (“If a federal
10
prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer ….”).
The Eleventh Circuit in Johnson held that a prisoner’s Eighth Amendment claim arose in a new context
because Carlson “did not consider the existence of alternative remedies under the framework explained in Egbert.” 119 F.4th at 858 (emphasis added). But as explained below, pp. 16-17, infra, Carlson did “consider
the existence of alternative remedies.” Cf. ibid. Moreover, whether the Court analyzed remedies “under the
framework” used today is not the test: As this Court has
recognized, “it is possible that the analysis in the Court’s
three Bivens cases might have been different if they
were decided today,” but that does not undermine the
“settled law” of Bivens where it applies. Ziglar, 582 U.S.
at 134. The Court’s use of an earlier methodology thus
does not deprive Carlson of stare decisis force. See also
Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412
(2024) (prior holdings “are still subject to statutory stare
decisis despite [the Court’s] change in interpretive
methodology”).
The Third Circuit, for its part, does not even align
with the Eleventh Circuit on the contours of its proffered rule. In Muniz, the court acknowledged that “[t]he
mere existence of the BOP ARP cannot meaningfully distinguish the remedial analysis here from that in Carlson,” unless the court also considers “the availability of
that administrative remedy.” 149 F.4th at 265 & n.5
(emphasis added). The panel thus recognized that a
Carlson claim may remain viable where “‘prison administrators thwart inmates from taking advantage’ of the
ARP.” Id. at 265 (quoting Ross v. Blake, 578 U.S. 632,
644 (2016)). In any event, the Third Circuit in Muniz
11
simply relied on its holding from a prior case involving
alleged sexual assault by a prison officer—an indisputably new context. See id. at 264 (citing Kalu v. Spaulding, 113 F.4th 311, 327-28 (3d Cir. 2024)). There is no
analysis from the Third Circuit effectively grappling
with any of the Court’s decisions repeatedly reaffirming
Bivens and Carlson in their respective spheres.
Such variation at the margins of these recent decisions—some less than a year old—underscores that the
issue remains unsettled and that further percolation is
warranted before this Court considers the issue, if at all.
That practice conserves the Court’s resources and ensures that, if an issue ultimately warrants resolution, it
will benefit from the insights that debate at the lower
courts can provide over time. See Gonzalez v. United
States, 145 S. Ct. 529, 533 (2025) (Sotomayor, J., respecting denial of certiorari) (recognizing “need for percolation”).
B. The Claimed Disagreement Over the Severity of
Injury Reflects Case-Specific Variation, Not
Doctrinal Disagreement
Petitioner’s second purported split—regarding the
significance of the severity of a plaintiff’s injury—is
even more tenuous.
The first step of the Bivens framework—whether the
facts of a case are “meaningful[ly]” different from those
of the Bivens trilogy, Ziglar, 582 U.S. at 139—is holistic
and inherently fact-specific. Courts in turn often reach
different results based on different facts. That case-specific disagreement does not mean there is a conflict in
legal principle.
1. Petitioner first argues that the Third, Seventh,
and Ninth Circuits follow the rule that “the severity of
12
an injury is irrelevant to the new-context inquiry.” Pet.
20 (emphasis added). That is not accurate.
In the decision below, the panel held that “[a] plaintiff need not suffer death or a life-threatening injury for
his claim to be sufficiently analogous to Carlson,” and
that a “difference in degree is not a meaningful difference.” Pet. App. 13a (emphasis added and citation omitted). It then concluded that Watanabe’s mistreatment
and injury were not meaningfully different from those
in Carlson, because Watanabe’s “injury resulted in a serious medical condition, and the condition has caused
extreme pain ever since.” Id. at 14a. The panel did not
exclude the possibility that a difference in the nature of
a plaintiff’s injury or mistreatment (rather than degree)
might give rise to a new context, and the Ninth Circuit
has elsewhere reserved that very issue. See Chambers
v. Herrera, 78 F.4th 1100, 1108 (9th Cir. 2023) (remanding for factual development regarding injury, treatment, and plaintiff’s “ultimate condition,” as, without
these details, it was “unclear … whether [his] Bivens
claim is viable”).
The Third Circuit’s decision in Muniz is similar.
There, the court considered claims from an inmate who
developed open wounds leading to infection and amputation. Muniz, 149 F.4th at 258 (cited Pet. 20-21). It concluded that the differences between the plaintiff’s injuries and those in Carlson were not “meaningful,” i.e.,
they did not “provide[] a ‘reason[] to think Congress
might doubt the efficacy or necessity of a damages remedy’ in this context.” Id. at 262-63 (quoting Egbert, 596
U.S. at 491). The panel thus did not conclude that the
nature of the injury was “irrelevant,” cf. Pet. 20; instead,
it concluded there was not a meaningful “difference between amputation and death,” Muniz, 149 F.4th at 262.
13
So too in the Seventh Circuit. Petitioner gestures to
Brooks, 131 F.4th 613 (Pet. 21). But that case concluded
simply that there was no meaningful difference when
mistreatment of appendicitis led to a ruptured appendix, peritonitis, and “agonizing pain.” Id. at 614-16. The
panel did not set down a bright-line categorical rule that
the nature of the injury can never be relevant.
2. Contrary to petitioner’s insistence, see Pet. 21, the
First, Tenth, and Eleventh Circuits follow fundamentally the same approach.
In the First Circuit case cited by petitioner, the plaintiff obtained extensive treatment and accommodation.
Waltermeyer v. Hazlewood, 136 F.4th 361, 364-65 (1st
Cir. 2025) (Pet. 21). The plaintiff filed suit because his
request for knee surgery was denied. Id. at 365. The
First Circuit concluded that his claims were meaningfully different from those in Carlson for at least six reasons, including that the treatment he received was not
contrary to medical advice, the “claim d[id] not involve
a wrongful death-like action[,] and at no time did the
alleged failure to adequately treat concern either a lifethreatening condition or extreme pain.” Id. at 366-67.
The court did not hold that a plaintiff must suffer death
or life-threatening injury for a Carlson claim to be cognizable.
So too in the Tenth Circuit. In Rowland, cited by petitioner (Pet. 22), the plaintiff had a hernia that a physician concluded was “reducible and stable.” 121 F.4th
at 1240. His principal claim was for delay in receiving
surgery and for insufficient post-operative care. The
Tenth Circuit rejected the claim, identifying myriad factors that made the plaintiff’s case “significantly different” from Carlson. Id. at 1243. Namely, officials did not
14
act “against the doctor’s orders,” the plaintiff did not receive contra-indicated drugs or a medical tool “known to
be inoperative,” the injury was not as serious as that in
Carlson, “[a]nd critically, [plaintiff] ultimately did receive surgery for his hernia.” Ibid. The court thus
reached a holistic conclusion based on all of those facts;
it did not announce a rule that non-fatal injuries create
a per se new context.
The Eleventh Circuit is similar. In Johnson, the
court addressed the “non-lethal” nature of the plaintiff’s
injuries only in the context of observing that the plaintiff’s injuries “were eventually treated by the defendants.” 119 F.4th at 859. And the court made that observation only after it had already concluded the ARP created a new context. Id. at 858-59. Johnson thus did not
hold that a plaintiff must die for a claim to fall within
Carlson’s context.
No circuit has adopted petitioner’s suggested rule
that an inmate must suffer a life-threatening emergency or die in order to have a Carlson claim. Instead,
the lower courts consider the facts of each case and determine whether there are meaningful differences
based on the totality of the circumstances. There is no
split for this Court to resolve.
II. The Ninth Circuit’s Decision Is Correct
This Court’s review is further unwarranted because
the Ninth Circuit’s decision faithfully applies this
Court’s precedent.
A. The ARP Does Not Create a Per Se New Context
for All Carlson Claims
This Court has never suggested that the mere existence of the ARP—which was already in place at the time
15
Carlson was decided—creates a per se new context for
every claim arising under Carlson.
While not expanding Carlson, this Court has confirmed it remains good law. In Malesko, this Court reaffirmed that Carlson claims remain viable within their
sphere—even after discussing the ARP as a potential alternative remedy in place at the time. 534 U.S. at 72,
74. Petitioner’s theory therefore rests on the premise
that this Court in Malesko misunderstood the impact of
the ARP on the continued viability of Carlson. But
courts rightly do not “ascribe to the Supreme Court a
misapprehension about the continuing vitality of its
own precedents.” Arias, 150 F.4th at 41-42.
The panel’s decision also is consistent with Ziglar, in
which the Court considered a suit by federal detainees
and found a new context based on “meaningful differences other than the presence of the ARP.” Arias, 150
F.4th at 43 (citing Ziglar, 582 U.S. at 148). Although the
Court had examined the ARP in Malesko several years
earlier, the Court in Ziglar did not even mention the
ARP as a potentially relevant distinguishing factor. Yet
if petitioner were correct, the ARP would have rendered
the entirety of the Court’s analysis of other factors superfluous. See Arias, 150 F.4th at 42-43.
Relying on the ARP as a distinguishing factor from
Carlson is particularly inappropriate in light of the fact
that the ARP was in effect when the Court decided Carlson, yet it did not give the Court any pause. Pet. App.
78a (Paez, J. & Koh, J.) (citing 44 Fed. Reg. 62,250 (Oct.
29, 1979)). Contrary to petitioner’s assertion (Pet. 27),
the fact that the ARP was not in place when the inmate
in Carlson died is immaterial: The Bivens inquiry does
not turn on whether an alternative remedy was available or adequate as to a particular plaintiff, but on
16
whether “Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate
level of deterrence,” as a prospective matter. Egbert, 596
U.S. at 498 (emphasis added).
Petitioner and the judges dissenting from en banc rehearing below urge that any alternative remedy not specifically discussed by the Court in the original Bivens
trilogy is a “special factor” necessarily giving rise to a
new context. Pet. 24, 27; Pet. App. 98a-100a (Nelson, J.,
dissenting). But this Court has never said that, and it is
well settled that precedent does not lose its force merely
because a later litigant contrives a different argument.
Cf. Gamble v. United States, 587 U.S. 678, 691 (2019);
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 484 (1989). Instead, the existence of a special
factor not previously considered may be addressed as
one factor at step one, but the inquiry at step one remains “whether the case ‘is different in a meaningful
way’” from the Bivens trilogy. Goldey v. Fields, 606 U.S.
942, 944 (2025) (per curiam) (citation omitted). Accordingly, a previously unconsidered special factor will render a context new only if that difference “might alter the
policy balance that initially justified the causes of action
recognized in Bivens, Davis, and Carlson.” Snowden v.
Henning, 72 F.4th 237, 239, 244 (7th Cir. 2023), cert. denied, 145 S. Ct. 137 (2024).
The ARP, even if considered at step one, does not satisfy that standard. In Carlson, the Court expressly considered alternative remedies—namely, the FTCA—and
concluded they did not foreclose the availability of a
remedy. The Court emphasized that the FTCA contained no “expression” from Congress that it intended to
foreclose constitutional claims against individual offic-
17
ers and identified several reasons why “the Bivens remedy is more effective than the FTCA remedy.” Carlson,
446 U.S. at 19-23.
The same rationales the Court invoked for the FTCA
in Carlson apply with even greater force to the ARP.
Like the FTCA, the ARP (1) contains no “explicit congressional declaration” foreclosing a Carlson claim,
(2) provides no relief against individual officers and
thus is a less “effective deterrent,” (3) does not permit
punitive damages, and (4) affords no right to a jury.
Carlson, 446 U.S. at 19-23. The ARP provides far less
relief than the FTCA because it does not allow for damages and does not permit adjudication by a neutral tribunal. There is accordingly no reason to think Carlson
would have come out differently had the Court expressly
discussed the ARP.
In fact, under the ARP, if an inmate asserts a tort
claim for damages, the proper course is to “refer the inmate to the appropriate statutorily-mandated procedures,” i.e., the FTCA. 28 C.F.R. 542.10(c). In other
words, the ARP itself points inmates back to the very
remedial framework—the FTCA—the Court already
considered at length in Carlson. There is accordingly
nothing new about the ARP that would alter the Court’s
analysis in Carlson.
Nor does the Prison Litigation Reform Act (PLRA),
42 U.S.C. 1997e, change the calculus. As this Court explained in Ziglar, the PLRA may reflect Congress’s desire to limit new Carlson actions, but it does not disturb
the remedies this Court has already recognized. See 582
U.S. at 148-49.
18
B. An Inmate Need Not Die in Order to Bring a
Carlson Claim
Likewise, this Court has never suggested that an inmate must die (or suffer a life-threatening injury) in order to pursue a Carlson claim. Instead, the Court’s cases
limiting Carlson have involved efforts to dramatically
extend Carlson, such as to private employees in private
prisons (rather than federal officers in federal prisons).
See Minneci v. Pollard, 565 U.S. 118, 120 (2012);
Malesko, 534 U.S. at 63.
The Court has repeatedly explained that the relevant
inquiry at step one is whether any differences are meaningful. See Ziglar, 582 U.S. at 139. And in Carlson, the
Court’s recognition of a cause of action had nothing to
do with the fact that the inmate died—the Court instead
focused on the status of the individual officers, the lack
of an effective alternative remedy, the absence of a congressional declaration foreclosing such claims, the harm
to the “constitutional design” without a remedy, and the
need for a uniform rule. 446 U.S. at 18-23 (citation omitted). Those factors persist here regardless of whether
Watanabe’s injuries were life threatening.
When this Court has found a Bivens claim presents
a new context, the factual and legal differences were
stark and involved different categories of defendants, or
entirely different constitutional rights. Egbert, 596 U.S.
at 489-90 (immigration enforcement); Hernandez v.
Mesa, 589 U.S. 93, 103 (2020) (cross-border shooting
raising foreign affairs and national security concerns);
Ziglar, 582 U.S. at 140 (“high-level executive policy” decisions concerning noncitizen detainees following the
September 11 attacks). Notably, in Ziglar, which arose
19
in the prison context, the Court did not identify the severity of the injury as a relevant factor creating a new
context.
In no case has the Court found a new context based
on a difference in degree rather than a qualitative difference in the nature of the claim. In fact, the Court in
Davis explained that whether a plaintiff has “a cause of
action … depends not on the quality or extent of her injury, but on whether the class of litigants of which
[plaintiff] is a member may use the courts to enforce the
right at issue.” 442 U.S. at 239 n.18 (emphasis added).
There is no basis for a different rule now.
C. There Is No Basis for Revisiting Carlson
In reality, petitioner’s disagreement is not with the
decision below, but with Carlson—and, ultimately, with
Bivens. See Pet. 31 (“[T]his Court may wish to consider
whether it should dispense with Bivens altogether.”).
Yet, petitioner “do[es] not ask [this Court] to overrule”
Carlson and therefore “do[es] not seek to overcome the
presumption of stare decisis that attaches.” Kurns v.
R.R. Friction Prods. Corp., 565 U.S. 625, 633 (2012).
Instead, petitioner asserts that he is merely asking
the Court to “eliminate” Carlson’s “application” in light
of the ARP. Pet. 28 n.6. That is a distinction without a
difference. Watanabe’s case presents a paradigmatic
Carlson claim, and if he cannot maintain a claim because of the ARP—which has applied to virtually all federal prisoners from the day Carlson was decided—there
would be nothing left of Carlson. Rendering Carlson inapplicable to every possible case would overrule it,
whatever the label. Cf. Students for Fair Admissions,
Inc. v. President & Fellows of Harvard Coll., 600 U.S.
20
181, 230 (2023) (“The Constitution deals with substance, not shadows ….” (quoting Cummings v. Missouri, 71 U.S. 277, 325 (1867)).
“[T]his Court does not overturn its precedents
lightly.” Michigan v. Bay Mills Indian Cmty., 572 U.S.
782, 798 (2014). And precedent cannot be discarded by
implication or erosion. See, e.g., Shalala v. Ill. Council
on Long Term Care, Inc., 529 U.S. 1, 17-18 (2000). If
Carlson is to be reconsidered, it must be done forthrightly, with full engagement of the stare decisis factors.
See Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455-56
(2015). Yet petitioner never even engages in that analysis, much less argues that the question warrants this
Court’s review. That weighs heavily against review.
The stare decisis framework generally requires the
Court to consider three broad questions: whether the
precedent is “grievously or egregiously wrong,” whether
it has produced serious “negative jurisprudential or
real-world consequences,” and whether overruling it
would “unduly upset reliance interests.” Ramos v. Louisiana, 590 U.S. 83, 121-22 (2020) (Kavanaugh, J., concurring in part). “Taken together, th[e]se three considerations set a high ... bar for overruling a precedent,” id.
at 123, and each supports denying review and thus retaining Carlson in its limited sphere.
1. Taking the last of the three first, Congress has
legislated in clear reliance on Carlson. In the Westfall
Act, Congress preempted state-law claims against individual federal officers for money damages, making the
FTCA the exclusive remedy for such injuries. 28 U.S.C.
2679. But Congress expressly carved out claims against
officers “brought for a violation of the Constitution of the
United States,” an unambiguous reference to Bivens
and Carlson. See 28 U.S.C. 2679(b)(2)(A). And Congress
21
did so even though the Carlson Court had indicated that
Congress could preempt Carlson claims by making an
“explicit congressional declaration” directing aggrieved
plaintiffs “to another remedy.” 446 U.S. at 19.
Congress thus ratified Carlson’s understanding that
the FTCA is “parallel” and “complementary” to Bivens.
id. at 20; see also Malesko, 534 U.S. at 68 (same). And
Congress clearly intended that its broad preemption of
claims against individual officers would not leave plaintiffs like Watanabe without a remedy. See Bartenwerfer
v. Buckley, 598 U.S. 69, 80 (2023) (“This Court generally
assumes that, when Congress enacts statutes, it is
aware of this Court’s relevant precedents.” (citation
omitted)). Overruling Carlson would therefore thwart
Congress’s intent and transform the Westfall Act into a
bar against essentially all claims for damages against
federal officers—contravening Congress’s express
preservation of those claims. See Hui v. Castaneda, 559
U.S. 799, 807 (2010) (noting “[t]he Westfall Act’s explicit
exception for Bivens claims”).
Congress’s reliance on Carlson is similar to that examined in Hilton v. South Carolina Public Railways
Commission, 502 U.S. 197 (1991). There, the Court invoked stare decisis and declined to overturn its 28-yearold precedent holding that the Federal Employers’ Liability Act (FELA), 45 U.S.C. 51-60, provides a cause of
action against a state-owned railroad, allowing such
claims in state court. See Hilton, 502 U.S. at 199, 20102 (citing Parden v. Terminal Ry. of Ala. Docks Dep’t,
377 U.S. 184 (1964)). The Court emphasized that in reliance on that precedent, “[w]orkers’ compensation laws
in many States specifically exclude railroad workers
from their coverage because of the assumption that
FELA provides adequate protection for those workers,”
22
and thus overruling precedent “would require these
States to reexamine their statutes.” Id. at 202-03. So too
here, where Congress has eliminated an entire class of
remedies based on the assumption that Carlson provides for a federal damages cause of action.
The PLRA points in the same direction. That statute
mandates administrative exhaustion for prisoner complaints, including Carlson claims. See Porter v. Nussle,
534 U.S. 516, 524 (2002). Yet Congress left Carlson and
the Westfall Act untouched. Cf. Chisom v. Roemer, 501
U.S. 380, 396 n.23 (1991) (“Congress’ silence in this regard can be likened to the dog that did not bark.”). In
requiring federal prisoners to exhaust via the ARP before filing a Bivens suit, Congress could not have intended to use the former to replace the latter. Had Congress—whose goal was to curb frivolous prisoner litigation, see Cutter v. Wilkinson, 544 U.S. 709, 726 (2005)—
wanted to foreclose Carlson claims altogether, it again
could have easily done so.
2. Nor was Carlson egregiously wrong. Even a “good
argument” that the Court “got [it] wrong” “cannot by itself justify scrapping settled precedent.” Kimble, 576
U.S. at 455. Although this Court has steadily moved
away from Bivens over time, Carlson itself is on stronger
footing.
One of the alleged defects of Bivens and Carlson is
that they are products of an “ancien regime” under
which “the Court assumed it to be a proper judicial function to provide such remedies as are necessary to make
effective a statute’s purpose.” Ziglar, 582 U.S. at 131-32
(quotation marks and citations omitted). After Bivens,
“the Court adopted a far more cautious course before
finding implied causes of action,” deferring instead to
express congressional direction. Id. at 132-33.
23
That narrative, however, cannot fully explain the decision in Carlson. The Court has observed that “[t]he decision to recognize an implied cause of action under a
statute involves somewhat different considerations
than when the question is whether to recognize an implied cause of action to enforce a provision of the Constitution itself.” Ziglar, 582 U.S. at 133. And, notably,
Carlson was decided after the series of cases in which
the Court retreated from its earlier practice of implying
private rights of action under statutes. See id. at 132-33
(citing Transamerica Mortg. Advisors, Inc. v. Lewis, 444
U.S. 11 (1979); Cannon v. Univ. of Chicago, 441 U.S. 677
(1979); Piper v. Chris-Craft Indus., Inc., 430 U.S. 1
(1977); Cort v. Ash, 422 U.S. 66 (1975)). Carlson therefore cannot be understood solely as an extension of that
now-abandoned practice.
Instead, Carlson is best understood as a federal common-law analogue to common-law tort actions historically available against government officers for misconduct, including false imprisonment and negligence. See
generally Carlos M. Vázquez & Stephen I. Vladeck,
State Law, The Westfall Act, and the Nature of the
Bivens Question, 161 U. Pa. L. Rev. 509, 531-42 (2013).
At common law, an official could be individually sued for
damages for trespass and false imprisonment under
color of an unlawful warrant, see Huckle v. Money, 95
Eng. Rep. 768 (C.P. 1763), or to recover duties collected
without a legal basis, see Elliott v. Swartwout, 35 U.S.
137 (1836). And common law has long provided prisoners with a cause of action against a jailer for failure to
provide adequate care. See, e.g., Spicer v. Williamson,
132 S.E. 291, 293 (N.C. 1926). Carlson is simply a modern iteration of that claim for federal officials.
24
This Court has previously observed in this context
that “[t]here is no federal general common law” and that
“federal courts today cannot fashion new claims in the
way that they could before [Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)].” Hernandez, 589 U.S. at 100
(citation omitted). That is true as a general matter, but
the Court has retained common-law authority in certain
“limited enclaves” where uniquely federal interests are
at stake. Sosa v. Alvarez-Machain, 542 U.S. 692, 729
(2004); see also Boyle v. United Techs. Corp., 487 U.S.
500, 504 (1988) (noting that federal courts may still formulate federal common law in certain areas implicating
“uniquely federal interests” (citation omitted)). One
such enclave involves “civil liability of federal officials
for actions taken in the course of their duty.” Boyle, 487
U.S. at 505 & n.1 (“[T]he liability of federal officials …
is an area of uniquely federal interest.”); see also Howard v. Lyons, 360 U.S. 593, 597 (1959) (extent of privilege for civil liability for defamatory statements by federal officers is a “peculiarly federal concern” governed by
federal law).
A Carlson claim concerns the “civil liability of federal
officials for actions taken in the course of their duty,”
Boyle, 487 U.S. at 505, but more specifically implicates
numerous federal interests: a Carlson claim involves a
federal prisoner held in a federal facility in the custody
and care of federal officials subject to federal duties arising from a federal judgment issued by a federal court.
Notably, “[a]n inmate must rely on prison authorities to
treat his medical needs,” and thus “[i]t is but just that
the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for
himself.” Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)
25
(citation omitted). It is therefore a federal duty to provide adequate medical care. Where, as here, every aspect
of a claim is federal in nature, the justification for application of federal common law is at its strongest.
Carlson therefore falls within this Court’s authority
to define uniform common-law rules in an area of
unique federal interest. There is accordingly no need to
resurrect the “heady days” of implied statutory causes
of action to retain Carlson within its already narrow
sphere. Malesko, 534 U.S. at 75 (Scalia, J., concurring).
3. Finally, stare decisis has “special force” where
Congress “remains free to alter what [this Court] ha[s]
done.” Bay Mills Indian Cmty., 572 U.S. at 799 (citation
omitted). This Court’s intervention is most necessary
when a prior decision “short-circuit[s] the democratic
process” by preventing States or Congress from addressing an issue. See Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215, 269 (2022).
Carlson does nothing of the sort. The Court in Carlson acknowledged that Congress can at any time eliminate a Carlson cause of action by an “explicit congressional declaration” directing plaintiffs to an alternative,
equally effective remedy. 446 U.S. at 19. Yet, as discussed above, Congress has done the opposite: through
the Westfall Act and the PLRA it has legislated in view
of Carlson, decidedly preserving it—just as this Court
has done repeatedly. The strongest form of stare decisis
therefore applies to Carlson.
III. The Issue Is Not Important and Recurring
Petitioner asks this Court to decide whether “the
Ninth Circuit here erred in recognizing a Bivens cause
of action.” Pet. i. But this Court has repeatedly refused
requests to take up a case simply to determine whether
a given claim is sufficiently similar to a recognized
26
Bivens context. See Ferreyra v. Hicks, 144 S. Ct. 555
(2024) (denying certiorari); Henning v. Snowden, 145 S.
Ct. 137 (2024) (same). It should do the same here.
Petitioner nonetheless argues that the Court should
grant the petition because “clarity” is needed for the
courts of appeals. Pet. 2 (citation omitted). But as set
forth above, pp. 7-14, supra, petitioner overstates the
nature and extent of any disagreement in the courts of
appeals. Consistent with this Court’s instructions, the
lower courts are overwhelmingly rejecting efforts to expand Bivens and Carlson to new contexts: In the Ninth
Circuit alone, “[i]n the last three years,” the court has
“rejected Bivens claims in eight published opinions (and
even more in unpublished dispositions).” Pet. App. 90a
(Nelson, J., dissenting). That courts are allowing a very
small number of cases with facts not meaningfully different from the original Bivens trilogy to proceed is no
cause for certiorari.
Petitioner appears to court a summary reversal. Pet
31. But summary dispositions are “rare[ly]” appropriate, Tharpe v. Sellers, 583 U.S. 33, 43 (2018) (Thomas,
J., dissenting) (per curiam) (citation omitted), and are
reserved for decisions that are clearly and egregiously
wrong, see Sexton v. Beaudreaux, 585 U.S. 961, 967
(2018) (per curiam). Although Goldey, 606 U.S. 942
(cited Pet. 31), is the rare case that met that exacting
standard, this case does not. In Goldey, the Fourth Circuit acknowledged it was extending Bivens to a new context—something this Court has repeatedly warned
against. Id. at 942-43. Here, by contrast, the Ninth Circuit merely applied Carlson in the same context as Carlson itself. Petitioner identifies no case in which this
Court has summarily reversed to effectively overrule
one of its prior precedents.
27
IV. This Case Is A Poor Vehicle
Finally, this case is a poor vehicle for the Court to
define the outer bounds of Carlson. Watanabe’s complaint presents the prototypical Carlson claim. Accordingly, taking this case would do little more than allow
the Court to confirm that Carlson remains good law—
which it has already done, see pp. 9-10, 15, supra—but
would not meaningfully elucidate any disputed issues.
See Liles v. Oregon, 425 U.S. 963 (1976) (Stevens, J.,
concurring in denial of certiorari) (“[I]t would be pointless to grant certiorari in case after case of this character
only to have [precedent] reaffirmed time after time.”).
This case also comes to the Court in an interlocutory
posture: Watanabe has received no relief and may never
receive any damages. The case would be entering discovery in the district court but for the maintenance of
this petition. See D. Ct. Doc. 49 (Dec. 17, 2025). Accordingly, the Court’s intervention would be premature and
may prove entirely unnecessary. Nat’l Football League
v. Ninth Inning, Inc., 141 S. Ct. 56, 56-57 (2020) (Kavanaugh, J., respecting denial of certiorari) (noting “interlocutory posture … counsel[s] against … review” of
appellate opinion reversing district court’s dismissal).
28
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SAMUEL WEISS
RIGHTS BEHIND BARS
1800 M Street NW, Front 1
#33821
Washington, DC 20033
ZACHARY D. TRIPP
JOSHUA M. WESNESKI
Counsel of Record
CRYSTAL L. WEEKS
RACHAEL E. JONES
WEIL , GOTSHAL & MANGES LLP
2001 M Street NW
Washington, DC 20036
(202) 682-7000
joshua.wesneski@weil.com
AUGUSTUS I. IPSEN
WEIL , GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
JANUARY 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.