Reply Brief — Francis Nielsen, Petitioner v. Kekai Watanabe

No. 25-417

IN THE

Supreme Court of the United States

————

FRANCIS NIELSEN,

Petitioner,

v.

KEKAI WATANABE,

Respondent.

————

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

REPLY FOR PETITIONER

————

JEFFREY A. LAMKEN

Counsel of Record

LUCAS M. WALKER

CHRISTIAN I. BALE

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

jlamken@mololamken.com

Counsel for Petitioner

TABLE OF CONTENTS

I.

The Circuits Are Divided...............................

A. The Circuits Are Divided Over

Whether Alternative Remedies

Create a New Bivens Context ...............

B. The Circuits Are Divided on

Whether the Nature and

Seriousness of the Injury or

Mistreatment Can Render the

Context “New” ........................................

II. The Issues Are Important And

Recurring ........................................................

III. The Decision Below Is Wrong ......................

IV. This Case Presents An Ideal Vehicle ...........

Conclusion ...................................................................

(i)

Page

3

3

5

7

7

12

12

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Sandoval,

532 U.S. 275 (2001) ............................................ 10

Arias v. Herzon,

150 F.4th 27 (1st Cir. 2025) .............................. 5, 7

Brooks v. Richardson,

131 F.4th 613 (7th Cir. 2025) ............................

6

Brown v. Davenport,

596 U.S. 118 (2022) ............................................

9

Carlson v. Green,

446 U.S. 14 (1980) ...................................... 1-7, 9-11

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) ...........................

9

Correctional Services Corp. v. Malesko,

534 U.S. 61 (2001) ..............................................

9

Egbert v. Boule,

596 U.S. 482 (2022) ...................................... 5, 7-11

Goldey v. Fields,

606 U.S. 942 (2025) ....................................

7-9, 12

Hernandez v. Causey,

124 F.4th 325 (5th Cir. 2024) ............................

4

Hernández v. Mesa,

589 U.S. 93 (2020) .............................................. 11

Johnson v. Terry,

119 F.4th 840 (11th Cir. 2024) .......................... 3, 6

Muniz v. United States,

149 F.4th 256 (3d Cir. 2025) .............................

6

Rowland v. Matevousian,

121 F.4th 1237 (10th Cir. 2024) ........................

6

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Sargeant v. Barfield,

87 F.4th 358 (7th Cir. 2023)..............................

4

Schwartz v. Miller,

153 F.4th 918 (9th Cir. 2025) .................... 2, 3, 7, 8

Silva v. United States,

45 F.4th 1134 (10th Cir. 2022) ..........................

4

United States v. Sineneng-Smith,

590 U.S. 371 (2020) ............................................

4

Waltermeyer v. Hazlewood,

136 F.4th 361 (1st Cir. 2025) ............................

6

Watkins v. Mohan,

144 F.4th 926 (7th Cir. 2025) ............................ 6, 7

Webster v. Fall,

266 U.S. 507 (1925) ............................................

9

Ziglar v. Abbasi,

582 U.S. 120 (2017) ............................. 1, 3, 6-10, 12

STATUTES

28 U.S.C. § 2679(b)(1) ............................................

11

OTHER AUTHORITITES

Mary Mason, Reckoning With Bivens,

Lawfare (Nov. 12, 2025),

https://www.lawfaremedia.org/article/

reckoning-with-bivens ......................................

11

IN THE

Supreme Court of the United States

————

FRANCIS NIELSEN,

Petitioner,

v.

KEKAI WATANABE,

Respondent.

————

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

REPLY FOR PETITIONER

————

This case presents two entrenched, openly acknowledged circuit conflicts on when putative Bivens claims present a “new context.” The Ninth Circuit found no meaningful difference between this case and Carlson v. Green,

446 U.S. 14 (1980). It did so even though this case involves

“alternative remedies” Carlson “did not consider.” Ziglar

v. Abbasi, 582 U.S. 120, 140, 149 (2017). And it did so

despite a stark contrast between the nature and severity

of the medical condition here—which allowed respondent

to seek relief through other avenues—and Carlson, where

an on-scene death from egregious mistreatment made it

“damages or nothing.” Had this case arisen in the Third,

Fifth, Seventh, Tenth, or Eleventh Circuits, the presence

of an alternative remedy Carlson did not consider would

have rendered the Bivens context “new.” And in the First,

2

Tenth, and Eleventh Circuits, the different nature of the

alleged injury and mistreatment compared to Carlson

would have rendered the context “new” as well.

Circuit after circuit has acknowledged those conflicts.

Pet.2. Eleven judges dissented from denial of rehearing

below, urging this Court to “provide some greater clarity”

and resolve the “multiple deep circuit splits over Carlsonrelated Bivens actions.” Pet.App.91a, Pet.App.116a.

Even Watanabe concedes the conflicts. He admits the

Third and Eleventh Circuits “conflict with the panel

below” on whether an alternative remedy here—the

“ARP”—may “render a context new.” Br.in.Opp.9. And

he admits the First, Tenth, and Eleventh Circuits have

found new contexts where injuries were “not as serious as

th[ose] in Carlson.” Br.in.Opp.13-14.

On the merits, Watanabe practically confesses error.

The Ninth Circuit holds courts may not consider alternative remedies at Bivens step one, Pet.App.15a; they can be

considered “only at step two,” Schwartz v. Miller, 153 F.4th

918, 930 (9th Cir. 2025). But Watanabe admits courts can

consider alternative remedies at step one. Br.in.Opp.16.

And he admits that differences are sufficiently “meaningful” to make a context “new” if they “ ‘might alter the

policy balance that initially justified’ ” recognizing a Bivens cause of action. Br.in.Opp.16. The Ninth Circuit never addressed that question. Watanabe does not either. He

thus ignores a key difference between this case and Carlson: There, unlike here, the fast-moving and fatal nature

of the circumstances meant the remedy was “damages or

nothing.” Pet.4, 22. “If that is not a meaningful difference,

then it’s hard to say what is.” Pet.App.98a-99a (Nelson, J.,

dissenting from denial).

The new-context inquiry should be “easily satisfied”

and thus easily applied. Ziglar, 582 U.S. at 149. But

3

Watanabe concedes the Ninth Circuit uses a “holistic,”

multifactor test to assess similarities with Carlson,

Br.in.Opp.11—not a straightforward test to identify differences that might alter “the policy balance.”

I. THE CIRCUITS ARE DIVIDED

A. The Circuits Are Divided Over Whether Alternative Remedies Create a New Bivens Context

Watanabe does not dispute the circuits are divided over

whether alternative remedies can create a new Bivens

context. Pet.15-19. The panel majority recognized a “split

on the role of alternative remedies.” Pet.App.78a (respecting denial of rehearing). So did ten dissenting judges.

Pet.App.106a-109a. So do other circuits. Pet.15. Watanabe downplays the split by focusing on whether the ARP

specifically creates a new context. But the conflict goes

beyond the ARP. And the conceded split on the ARP is

highly consequential and warrants review regardless.

1. Watanabe concedes a conflict on whether the ARP

“render[s] a context new.” Br.in.Opp.9. In “conflict with

the panel below,” he admits, the Third and Eleventh Circuits hold “the ARP may alone be sufficient to render a

context new.” Br.in.Opp.9 (citing 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)). In the Ninth Circuit, however, the ARP does not

create a new context—it is relevant only “at the second

step.” Pet.App.15a; see Schwartz, 153 F.4th at 929-930.

That conceded split warrants review. In a circuit covering nine States, prisoners have a judicially created damages action despite the ARP; in another broad swath of the

Nation, they do not. While Watanabe urges the Third and

Eleventh Circuits are wrong, Br.in.Opp.9-11, that is a merits response (an erroneous one, pp. 7-10, infra)—not an

4

argument against resolving an admitted conflict. Watanabe asks for “percolation,” Br.in.Opp.11, but identifies

nothing that would further illuminate the issue.

2. Watanabe understates the conflict regardless. The

Seventh and Tenth Circuits have also addressed the ARP

specifically. Pet.16-17. The Seventh Circuit held “[t]he

PLRA and the Bureau of Prisons’ [ARP] grievance program satisfy th[e] low bar” of showing “a new context” “at

step one.” Sargeant v. Barfield, 87 F.4th 358, 366, 368-369

(7th Cir. 2023), cert. denied, 145 S. Ct. 285 (2024). The

Tenth Circuit holds Carlson claims independently “foreclosed by the availability of the BOP Administrative Remedy Program.” Silva v. United States, 45 F.4th 1134, 1142

(10th Cir. 2022).

Watanabe protests that other cases in those circuits

“allow[ed] Carlson claims” or considered the ARP at step

two. Br.in.Opp.8-9. But the parties in those other cases

never invoked the ARP at step one. 1 Parties, not courts,

“frame the issues for decision.” United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020). When actually presented with the issue, the Seventh and Tenth Circuits—

unlike the Ninth—held the ARP forecloses Bivens relief.

3. The conflict runs deeper still. The Fifth Circuit

agrees with the Third, Seventh, Tenth, and Eleventh Circuits that “an alternative remedial structure” “indeed present[s] a new context” at step one. Hernandez v. Causey,

124 F.4th 325, 334 (5th Cir. 2024), cert. denied, 145 S. Ct.

See Brief of Defendants-Appellees, Brooks v. Richardson, No. 241651, Dkt. 17 (7th Cir. Sept. 6, 2024); Brief of Defendants-Appellees,

Watkins v. Mohan, No. 24-1151, Dkt. 27 (7th Cir. Aug. 30, 2024); Brief

of Defendants-Appellees, Rowland v. Matevousian, No. 23-1343,

Dkt. 30 (10th Cir. Apr. 8, 2024).

1

5

1930 (2025). But the First Circuit sides with the Ninth in

finding no “ ‘ “new Bivens context” ’ ” despite new administrative remedies. Arias v. Herzon, 150 F.4th 27, 45, 49

(1st Cir. 2025). That 5-2 conflict is anything but “shallow.”

Br.in.Opp.7.

Watanabe complains Causey and Arias did not “arise

under Carlson” or “implicate the ARP.” Br.in.Opp.8. But

he cannot say why that matters. This Court has discussed

the role of “alternative remedial structures” generally in

analyzing “Bivens” claims generally. Egbert v. Boule, 596

U.S. 482, 493 (2022). Neither Causey nor Arias invokes

any such distinction. Nor does the Ninth Circuit: It holds

“the existence of alternative remedial structures” cannot

be considered at step one of “the Bivens analysis”—

period. Pet.App.15a.

B. The Circuits Are Divided on Whether the Nature

and Seriousness of the Injury or Mistreatment

Can Render the Context “New”

Watanabe admits circuits have reached “different results” over whether the severity of harm or mistreatment

makes a context “new” compared to Carlson. Br.in.Opp.11.

He concedes the Third, Seventh, and Ninth Circuits deem

such differences “ ‘not * * * meaningful.’ ” Br.in.Opp.1213. And he concedes the First, Tenth, and Eleventh Circuits have found new contexts where (as here) “the injury

was not as serious as that in Carlson.” Br.in.Opp.13-14.

Attempting to reconcile the cases as “fundamentally”

consistent, Watanabe urges they apply the same “holistic”

approach to “different facts.” Br.in.Opp.11, 13. But Watanabe never reconciles the facts or results. 2 And the cases

The facts in this case, for example, track the First, Tenth, and Eleventh Circuit cases finding the context new: Each case—unlike Carl2

6

apply “fundamentally” conflicting rules. In the Third,

Seventh, and Ninth Circuits, a difference in degree or

urgency of injury is categorically “ ‘not a meaningful difference.’ ” Muniz, 149 F.4th at 262-263; Pet.App.13a; see

Brooks v. Richardson, 131 F.4th 613, 615 (7th Cir. 2025).

But the First, Tenth, and Eleventh Circuits consider such

differences. Pet.21-22. The conflict between circuits that

take a “permissive stance on the nature and extent of the

injury for Carlson claims,” and those that do not, is widely

recognized. Watkins v. Mohan, 144 F.4th 926, 947 & n.*

(7th Cir. 2025) (Kirsch, J., concurring in part and dissenting in part); see Pet.App.103a (Nelson, J., dissenting

from denial). Invoking that “conflict,” the United States

has urged the Seventh Circuit to go en banc to realign its

precedents with the First, Tenth, and Eleventh Circuits’.

Rehearing Pet. 22-23, Watkins v. Mohan, No. 24-1151,

Dkt. 56 (7th Cir. Oct. 16, 2025), reh’g denied, 2025 WL

3074657 (Nov. 3, 2025).

If the circuits were applying Watanabe’s “holistic” balancing test, that would cement the need for review. That

would transform this Court’s “easily satisfied” inquiry

asking whether cases “differ in a[ny] meaningful way,”

Ziglar, 582 U.S. at 139-140, 149, into an anything-goes,

totality-of-the-circumstances gumbo that contravenes

precedent and expands the judicial role.

II. THE ISSUES ARE IMPORTANT AND RECURRING

The issues are important and recurring. They concern

the rights of 150,000 federal inmates, the officers responsible for them, and separation-of-powers concerns that

son—involved non-lethal injuries resulting from less extreme conduct

that could be redressed by other means. Pet.App.3a-4a; Waltermeyer

v. Hazlewood, 136 F.4th 361, 366-367 (1st Cir. 2025); Rowland v.

Matevousian, 121 F.4th 1237, 1243 (10th Cir. 2024); Johnson, 119

F.4th at 859. But this case came out the opposite way.

7

should not vary by geography. Pet.22-23. The issues arise

frequently. Pet.23; Pet.App.122a-131a. Watanabe nowhere

contends otherwise.

Watanabe insists courts “overwhelmingly” get the analysis right, “rejecting” Bivens claims. Br.in.Opp.26. But the

Ninth Circuit—the largest circuit—has endorsed Carlson

claims despite alternative remedies not previously considered and despite differences in the nature of the misconduct and harm. Pet.App.13a-15a; Schwartz, 153 F.4th at

929-931. Others have joined it. Pet.18-21; pp. 5-6, supra.

The resulting conflicts will persist, affecting case after

case, until this Court intervenes. That is why court of appeals judges have pleaded for this Court to “provide some

greater clarity” and stem the “flood of inconsistent case

law” by “resolv[ing] the multiple deep circuit splits over

Carlson-related Bivens actions.” Pet.App.116a (Collins,

J., dissenting from denial), Watkins, 144 F.4th at 951 & n.*

(Kirsch, J., concurring in part and dissenting in part),

Pet.App.91a (Nelson, J., dissenting from denial); see

Arias, 150 F.4th at 51 & n.11 (Lynch, J., concurring in part

and dissenting in part).

III. THE DECISION BELOW IS WRONG

A. Watanabe never defends the Ninth Circuit’s holding that “alternative remedial structures” may only “be

considered at the second step.” Pet.App.15a. He concedes

error: “[T]he existence of a special factor not previously

considered,” he admits, “may be addressed as one factor

at step one.” Br.in.Opp.16 (emphasis altered). That concession is unsurprising: Ziglar, Egbert, and Goldey all considered alternative remedies at step one. Pet.24-26.

Watanabe invokes the panel’s dictum that, “ ‘even if [it]

were to consider [the ARP] at step one,’ ” the context

would not be new. Br.in.Opp.8, 16. But he ignores that the

Ninth Circuit held—and has since confirmed—it “treat[s]

8

the ARP as a special factor only at step two.” Schwartz,

153 F.4th at 930 (emphasis added); see Pet.18, 25. And

Watanabe nowhere defends the panel’s sole justification

for its “even if ” dictum: that the ARP does not create a

“new context” because remedial schemes supposedly have

at most “little significance” at step one. Pet.App.15a, 80a81a. That’s a slightly diluted version of the court’s rationale for entirely refusing to consider alternative remedies—that alternative remedies shouldn’t matter at step

one. Either formulation (“no” significance or “little”

significance) defies this Court’s instruction that “alternative remedial structures” “ ‘alone’ ” create a new context

and foreclose a Bivens action. Egbert, 596 U.S. at 492-493;

Pet.26-27. Far from rendering the error here “immaterial,” Br.in.Opp.8, the panel’s dictum doubles down on it.

And the conflict over whether the ARP ultimately renders

the context “new” exists regardless.

Watanabe says “this Court has never said” that “any

alternative remedy not specifically discussed * * * in the

original Bivens trilogy is a ‘special factor’ necessarily

giving rise to a new context.” Br.in.Opp.16. But Ziglar

says one “example” of a “differenc[e] that [is] meaningful

enough to make a given context a new one” is “the presence of potential special factors”—including “alternative

remedies”—that “previous Bivens cases did not consider.”

582 U.S. at 139, 148-149; see Pet.27. Egbert held the existence of “alternative remedial structures” not previously

considered “ ‘alone’ ” forecloses a Bivens action. 596 U.S.

at 492-493, 497; see Pet.27. And Goldey ruled that, because the ARP was “ ‘an alternative remedial structure,’ ”

the case arose “in a new context [at step one], and ‘special

factors’ counsel[ed]” hesitation at step two. Goldey v.

Fields, 606 U.S. 942, 944 (2025) (per curiam). There is no

dispute the ARP is a potential special factor, and that

9

Carlson did not consider it. Under this Court’s precedents, that renders the context “new.” Pet.24.

That the ARP was “in effect” when Carlson issued is

irrelevant. Br.in.Opp.15. The question is whether the

ARP was “consider[ed].” Ziglar, 582 U.S. at 140. It was

not—nor even raised. Pet.27. “Questions which merely

lurk in the record, neither brought to the attention of the

court nor ruled upon, are not to be considered as having

been so decided * * * .” Webster v. Fall, 266 U.S. 507, 511

(1925). Watanabe offers no answer. 3 Stray language from

Correctional Services Corp. v. Malesko, 534 U.S. 61, 72

(2001), see Br.in.Opp.9-10, 15, cannot change the result.

Such “general expressions” are “seldom completely investigated” and thus not “control[ling].” Cohens v. Virginia,

19 U.S. (6 Wheat.) 264, 399-400 (1821) (Marshall, C.J.); see

Brown v. Davenport, 596 U.S. 118, 141 (2022). Under Ziglar, Egbert, and Goldey—all postdating Malesko—the

ARP renders the context “new.”

So Watanabe extolls Carlson’s reasoning. But Carlson

carries “little weight because it predates [this Court’s]

current approach to implied causes of action.” Egbert, 596

U.S. at 500. Carlson addressed a different alternative remedy, the Federal Tort Claims Act. But that says nothing

about whether the ARP (which Carlson never considered)

renders the context different here. The ARP plainly could

affect Congress’s preferred “ ‘policy balance.’ ” Br.in.Opp.2,

16-17. Indeed, the ARP’s administrative remedies may offer swifter, more specific relief than FTCA damages suits.

Carlson also says nothing about the effect of the Prison

Litigation Reform Act along with the ARP. Pet.30. The

The ARP also did not exist when the conduct in Carlson occurred

and was unavailable to the Carlson plaintiff (the decedent’s mother).

Pet.27-28. Congress could think those differences meaningful, too.

3

10

PLRA concededly presents a “meaningful” “differenc[e]”

from Carlson. Ziglar, 582 U.S. at 149; see Pet.24-25 & n.5;

Br.in.Opp.17. While Watanabe insists the PLRA bars only

“new Carlson actions,” Br.in.Opp.17, that begs the question. Actions present “new” contexts where they implicate

alternative remedial structures Carlson “did not consider.” Ziglar, 582 U.S. at 140. Carlson considered neither

the PLRA nor the ARP.

Watanabe insists the “rationales” Carlson “invoked for

the FTCA” apply to the ARP and PLRA. Br.in.Opp.17.

But any remedies Carlson did not consider must be assessed under the Court’s current “ ‘analytic framework.’ ”

Egbert, 596 U.S. at 500-501. “[S]tare decisis” does not require applying Carlson’s outmoded “methodology” here.

Br.in.Opp.10; see Alexander v. Sandoval, 532 U.S. 275,

287 (2001).

B. The Ninth Circuit erred in holding that differences

in the harm’s severity or immediacy cannot render the

context “new.” Watanabe concedes that differences that

“ ‘might alter the policy balance that initially justified’ ” a

Bivens remedy can make the context new. Br.in.Opp.16.

Congress rationally could conclude that wrongful death

(as in Carlson) presents weightier concerns than a stilltreatable fractured coccyx (as here). And Congress rationally could conclude that, even if a damages remedy were

appropriate for on-the-scene death (making it damages-ornothing, as in Carlson), a damages remedy is unwarranted

where (as here) prisoners can pursue administrative or

injunctive remedies for chronic conditions. Pet.29-30.

Watanabe’s argument that the Court’s reasoning in

Carlson didn’t turn on “the fact that the inmate died,”

Br.in.Opp.18, is misplaced. The question is whether “Congress” could “weigh such policy considerations” when as-

11

sessing “ ‘the efficacy or necessity of a damages remedy.’ ”

Egbert, 596 U.S. at 491, 496, 501. Plainly it could.

C. Especially given Watanabe’s refusal to defend much

of the decision below, this Court may wish to consider

summary reversal. Pet.31. If the Court grants plenary

review, however, it may consider whether Bivens should

be overruled. Pet. 31-32. Experience suggests that efforts

to cabin Bivens and its progeny have proved unworkable.

Disarray has prevailed. And the Court has repeatedly had

to reverse decisions that misapprehend its instructions.

Pet.23. “In fairness to future litigants and [the] lower

court[s],” the Court may wish to clean the slate and “return the power to create new causes of actions” solely to

“Congress.” Egbert, 596 U.S. at 504 (Gorsuch, J., concurring); see Mary Mason, Reckoning With Bivens, Lawfare

(Nov. 12, 2025), https://www.lawfaremedia.org/article/

reckoning-with-bivens.

That course is squarely within the question presented.

If Bivens is not good law, then “the Ninth Circuit here

erred in recognizing a Bivens cause of action.” Pet. i. Watanabe tries to defend Carlson as a “federal common-law

analogue to common-law tort actions.” Br.in.Opp.23. But

this Court has rejected attempts to “[a]nalogiz[e] Bivens

to the work of a common-law court.” Hernández v. Mesa,

589 U.S. 93, 100 (2020). “[A]uthority to recognize a damages remedy must rest at bottom on a statute,” id. at 101—

not on whether plaintiffs can use the word “federal” eight

times in one sentence, Br.in.Opp.24. 4

The Westfall Act’s “carve[-]out” for Bivens, Br.in.Opp.20, means

Congress left Bivens’ fate to the courts. And the FTCA “remedy

against the United States” the statute recognizes, 28 U.S.C. § 2679(b)(1)

(citing §§ 1346(b), 2672), refutes the assertion that overruling Bivens

would “leave plaintiffs * * * without a remedy” Congress wanted to

provide, Br.in.Opp.21.

4

12

IV. THIS CASE PRESENTS AN IDEAL VEHICLE

This case cleanly presents both circuit splits; all issues

were preserved and passed upon; and reversal would be

case-dispositive. Nor is the case “interlocutory” in any

meaningful sense. Br.in.Opp.27. The district court granted judgment on the pleadings, holding the context “new”;

the Ninth Circuit reversed, holding the opposite. Burdensome “discovery” and potentially trial, ibid., would not

inform the issues. If anything, those burdens underscore

the need for intervention. Ziglar, 582 U.S. at 134. This

Court has reviewed other Bivens cases in similar postures.

Id. at 130; Goldey, 606 U.S. at 945.

CONCLUSION

The petition should be granted.

Respectfully submitted.

JEFFREY A. LAMKEN

Counsel of Record

LUCAS M. WALKER

CHRISTIAN I. BALE

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

jlamken@mololamken.com

Counsel for Petitioner

JANUARY 2026