Petitioners Brief — Francis Nielsen, Petitioner v. Kekai Watanabe

Supreme Court briefAug 14, 2026

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No. 25-417

IN THE

Supreme Court of the United States

————

FRANCIS NIELSEN,

Petitioner,

KEKAI WATANABE,

Respondent.

————

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

BRIEF FOR PETITIONER

————

JEFFREY A. LAMKEN

Counsel of Record

LUCAS M. WALKER

ERIC R. NITZ

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

QUESTION PRESENTED

This case concerns the judicially created damages remedy first recognized in Bivens v. Six Unknown Federal

Narcotics Agents, 403 U.S. 388 (1971). In Carlson v.

Green, 446 U.S. 14 (1980), the Court extended Bivens to

an Eighth Amendment claim of deliberate indifference to

medical needs where prison officials failed to address an

inmate’s acute asthma attack and exacerbated it, causing

his death within hours.

Since then, this Court has emphasized that the creation of damages actions rests with Congress, not courts.

The judicially created Bivens remedy thus cannot be extended to any “new Bivens context” if any “special factor

counsel[s] hesitation” in doing so. Ziglar v. Abbasi, 582

U.S. 120, 139-140 (2017). “[T]he new-context inquiry is easily satisfied,” encompassing cases with “ ‘meaningful[ly]’ ”

different facts, or “ ‘potential special factors’ ”—including

“alternative remedial structures”—“ ‘not consider[ed]’ ” in

the Court’s prior cases. Id. at 148-149; Egbert v. Boule,

596 U.S. 482, 492-493 (2022). “[A] court may not recognize a Bivens remedy” if “there is any reason to think that

Congress might be better equipped to create a damages

remedy.” Id. at 492.

In this case, respondent alleged that he suffered a fractured coccyx in a prison gang fight, but was not sent to a

hospital. The Ninth Circuit held the suit did not present

a “new” context from Carlson—notwithstanding an alternative remedial scheme this Court did not consider in

Carlson, and despite significant factual differences such

as the immediacy and severity of the harm alleged. The

question presented is:

Whether the Ninth Circuit here erred in recognizing a

Bivens cause of action.

(i)

PARTIES TO THE PROCEEDINGS BELOW

Petitioner Francis Nielsen was the appellee in the

court of appeals.

Respondent Kekai Watanabe was the appellant in the

court of appeals.

Estela Derr, K. Robl, and Nathan Kwon were defendants in the district court but did not participate in the

appeal resulting in the judgment under review.

TABLE OF CONTENTS

Introduction ................................................................

Opinions Below ...........................................................

Statement of Jurisdiction ..........................................

Constitutional, Statutory, and Regulatory

Provisions Involved ....................................................

Statement ....................................................................

I. Legal Framework...........................................

A. Historical Background............................

B. This Court Creates Damages

Remedies for Constitutional

Violations in Bivens, Davis, and

Carlson .....................................................

C. Recognizing the Tension Between

Bivens and the Separation of

Powers, This Court Adopts a

Demanding Two-Step Bivens

Framework ..............................................

D. Remedial Structures for Federal

Prisoners ..................................................

II. Proceedings Below .........................................

A. District Court Proceedings ....................

B. The Ninth Circuit’s Decision..................

C. Denial of Rehearing ................................

Summary of Argument ..............................................

(iii)

Page

TABLE OF CONTENTS—Continued

Page

Argument .................................................................... 19

I. The Ninth Circuit Improperly Extended

Bivens to a New Context............................... 21

A. The Expansive “New Bivens

Context” Inquiry Is Satisfied If

There Is Any Difference Congress

Could Find Meaningful........................... 22

B. Differences in Nature, Severity,

and Immediacy Make This a New

Context from Carlson ............................. 24

1. For Watanabe, It Is Not

“Damages or Nothing” ...................... 25

2. Differences in Severity Make

the Context New .............................. 27

3. Contrary Arguments Lack

Merit .................................................... 30

C. Special Factors Not Considered in

Carlson Present a New Bivens

Context ..................................................... 32

1. This Case Is Replete with

Alternative Remedial Structures

Carlson Never Considered................ 32

2. The Ninth Circuit Erred in

Relegating Alternative

Remedial Structures to Bivens

Step Two .............................................. 35

3. The ARP Cannot Be Dismissed

Based on Its Date of Creation .......... 37

4. Watanabe’s Reliance on

Carlson’s Reasoning Fails ................. 38

TABLE OF CONTENTS—Continued

Page

D. Watanabe’s Bivens Claim Cannot

Proceed .....................................................

II. Bivens Should Be Overruled .........................

A. Congress, Not the Judiciary,

Creates Causes of Action .......................

B. Bivens Has Earned Its Retirement ......

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

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Sandoval,

532 U.S. 275 (2001) ......................................... 23, 42

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) .......................................... 5, 46

Atkins v. Virginia,

536 U.S. 304 (2002) ............................................ 28

Bell v. Hood,

327 U.S. 678 (1946) ............................................

Bell v. Wolfish,

441 U.S. 520 (1979) ............................................ 28

Bivens v. Six Unknown

Federal Narcotics Agents,

403 U.S. 388 (1971) ....................... 1-10, 13-28, 30,

31, 35, 36, 38-48

Bush v. Lucas,

462 U.S. 367 (1983) .......................................... 7, 44

Carlson v. Green,

446 U.S. 14 (1980) ....................... 2, 4, 6-10, 14-35,

37, 38, 40-48

Chappell v. Wallace,

462 U.S. 296 (1983) ............................................

Cisco Systems, Inc. v. Doe,

146 S. Ct. 1882 (2026) ............................... 41-43, 46

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ...................................... 8, 30, 32

Davis v. Passman,

442 U.S. 228 (1979) ............................. 4, 6-8, 19-23,

25, 41-46

Edwards v. Vannoy,

593 U.S. 255 (2021) ............................................ 48

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Egbert v. Boule,

596 U.S. 482 (2022) ........... 1-3, 7-10, 15, 17, 19-24,

27-29, 31, 32, 34-37, 39-41, 43-48

FDIC v. Meyer,

510 U.S. 471 (1994) .......................................... 8, 12

FS Credit Opportunities Corp. v.

Saba Capital Master Fund, Ltd.,

146 S. Ct. 1546 (2026) ........................................ 46

Goldey v. Fields,

606 U.S. 942 (2025) ........................ 7-9, 20, 21, 28,

29, 32, 35, 39, 47

Green v. Carlson,

581 F.2d 669 (7th Cir. 1978) ..................... 7, 25, 38

Gregg v. Georgia,

428 U.S. 153 (1976) ......................................... 27, 28

Hernández v. Mesa,

589 U.S. 93 (2020) ..................................... 4, 5, 7, 8,

20-24, 31, 40-44, 47

Hui v. Castaneda,

559 U.S. 799 (2010) ............................................

Janus v. AFSCME,

585 U.S. 878 (2018) ............................................ 46

J.I. Case Co. v. Borak,

377 U.S. 426 (1964) .......................................... 6, 42

Levin v. United States,

568 U.S. 503 (2013) ............................................ 46

Minneci v. Pollard,

565 U.S. 118 (2012) .................................... 8, 46, 47

Mitchell v. Harmony,

54 U.S. (13 How.) 115 (1851) ............................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Mohamed v. Jones,

100 F.4th 1214 (10th Cir. 2024) ........................ 42

Poindexter v. Greenhow,

114 U.S. 270 (1885) ............................................

Schwartz v. Miller,

153 F.4th 918 (9th Cir. 2025) ............................ 35

Schweiker v. Chilicky,

487 U.S. 412 (1988) .......................................... 7, 43

Slocum v. Mayberry,

15 U.S. (2 Wheat.) 1 (1817) ...............................

Texas Industries, Inc. v. Radcliff

Materials, Inc., 451 U.S. 630 (1981)................ 43

Trump v. Slaughter,

146 S. Ct. 2283 (2026) ............................... 42, 44, 47

United States v. Stanley,

483 U.S. 669 (1987) ............................................

Watkins v. Mohan,

144 F.4th 926 (7th Cir. 2025) ......................... 29, 45

Webster v. Fall,

266 U.S. 507 (1925) ............................................ 37

Wheeldin v. Wheeler,

373 U.S. 647 (1963) ...................................... 4, 5, 44

Wilkie v. Robbins,

551 U.S. 537 (2007) ............................................

Woodford v. Ngo,

548 U.S. 81 (2006) .............................................. 11

Ziglar v. Abbasi,

582 U.S. 120 (2017) .... 5, 8, 9, 11, 17, 18, 21-24, 26,

28, 30-34, 36-38, 42, 43, 45, 47

TABLE OF AUTHORITIES—Continued

Page(s)

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 1 ............................................. 40

U.S. Const. amend. I ............................................. 12

U.S. Const. amend. IV......................................... 6, 12

U.S. Const. amend. V ............................................

U.S. Const. amend. VIII ..................................... 6, 13,

18, 20, 27, 28

STATUTES

Congressional Accountability Act of 1995,

Pub. L. No. 104-1, 109 Stat. 3:

2 U.S.C. § 1302(a) ......................................... 46

2 U.S.C. § 1311(a) ......................................... 46

2 U.S.C. § 1311(b) ......................................... 46

Federal Prison Oversight Act, Pub. L. No.

118-71, 138 Stat. 1492 (2024), to be codified

at 5 U.S.C § 413(e) ......................................... 11, 34

138 Stat. 1493 (§ 413(e)(2)(B)(viii)) ............. 35

138 Stat. 1496 (§ 413(e)(3)(A)) ..................... 11

138 Stat. 1496 (§ 413(e)(3)(A)(i)) ................. 35

138 Stat. 1497 (§ 413(e)(3)(C)) .................. 11, 35

138 Stat. 1497 (§ 413(e)(3)(D)(i)) ................. 35

138 Stat. 1497 (§ 413(e)(3)(D)(ii)) ................ 35

138 Stat. 1498 (§ 413(e)(3)(D)(iii)) ............ 11, 35

138 Stat. 1499 (§ 413(e)(4)(C)(ii)(II)) .......... 35

138 Stat. 1501 § 2(b) ..................................... 35

Federal Tort Claims Act ....................... 38, 43, 46, 47

28 U.S.C. § 1346(b)(1) ................................... 46

28 U.S.C. § 2674 ............................................ 46

28 U.S.C. § 2680(h) ....................................... 46

Pub. L. No. 93-253, § 2, 88 Stat. 50 (1974) ........... 46

TABLE OF AUTHORITIES—Continued

Page(s)

Prison Litigation Reform Act, Pub. L. No.

104-134, 110 Stat. 1321–66 (1996) ............... 10, 11,

18, 33, 38

18 U.S.C. § 3626 ......................................... 11, 26

42 U.S.C. § 1997e .......................................... 11

42 U.S.C. § 1997e(a)................................... 11, 33

42 U.S.C. § 1997e(f )(1) ................................. 29

Uniting and Strengthening America

by Providing Appropriate Tools

Required to Intercept and

Obstruct Terrorism Act of 2001

(USA PATRIOT ACT), Pub. L.

No. 107-56, § 1001, 115 Stat. 391

(2001) ......................................................... 11, 34, 38

17 Stat. 13 (1871) ...................................................

5 U.S.C. § 8102(a) ................................................... 27

5 U.S.C. § 8105 ........................................................ 28

5 U.S.C. § 8106 ........................................................ 28

5 U.S.C. § 8107 ........................................................ 28

5 U.S.C. § 8133 ........................................................ 27

18 U.S.C. § 844(f)(3) ............................................... 27

18 U.S.C. § 1365(a)(2) ............................................ 27

18 U.S.C. § 1365(a)(3) ............................................ 28

18 U.S.C. § 1864(b)(1) ............................................ 27

18 U.S.C. § 1864(b)(2) ............................................ 28

18 U.S.C. § 1864(b)(3) ............................................ 28

18 U.S.C. § 1952(a)(B)............................................ 27

18 U.S.C. § 1992(a) ................................................. 27

18 U.S.C. § 2113(e) ................................................. 27

TABLE OF AUTHORITIES—Continued

Page(s)

18 U.S.C. § 2119(2) ................................................. 28

18 U.S.C. § 2119(3) ................................................. 27

18 U.S.C. § 2251(e) ................................................. 27

18 U.S.C. § 2261(b)(1) ............................................ 27

18 U.S.C. § 2262(b)(1) ............................................ 27

18 U.S.C. § 2261(b)(2) ............................................ 28

18 U.S.C. § 2261(b)(3) ............................................ 28

28 U.S.C. § 1254(1) .................................................

28 U.S.C. § 2679(b)(1) ............................................ 47

28 U.S.C. § 2679(2)(A)............................................ 47

28 U.S.C. § 2679(d) ................................................. 47

33 U.S.C. § 909........................................................ 27

42 U.S.C. § 1983 ................................................... 5, 11

46 U.S.C. § 30302 .................................................... 27

REGULATIONS

Administrative Remedy Program,

44 Fed. Reg. 62,250 (Oct. 29, 1979),

28 C.F.R. §§ 542.10-542.19. ................ 10, 11, 13-19,

32-35, 37, 38

28 C.F.R. § 542.10 ......................................... 26

28 C.F.R. § 542.10(a) ................................. 10, 32

28 C.F.R. § 542.10(b) .................................... 10

28 C.F.R. § 542.11(a) .................................... 10

28 C.F.R. § 542.13 ......................................... 26

28 C.F.R. § 542.13(a) .................................... 10

28 C.F.R. § 542.14 ......................................... 26

28 C.F.R. § 542.14(a) .................................... 10

28 C.F.R. § 542.14(d)(1) ............................... 10

28 C.F.R. § 542.15 ......................................... 26

xii

TABLE OF AUTHORITIES—Continued

Page(s)

28 C.F.R. § 542.15(a) .................................... 10

28 C.F.R. § 542.16 ......................................... 10

28 C.F.R. § 542.17 ......................................... 10

28 C.F.R. § 542.18 ......................................... 10

28 C.F.R. § 50.15(c) ................................................ 47

LEGISLATIVE MATERIALS

Accountability for Federal Law Enforcement

Act, S. 2103, 117th Cong. § 2 (2021) .................

Bivens Act of 2021,

H.R. 6185, 117th Cong. § 2 (2021) ....................

Bivens Act of 2021,

S. 3343, 117th Cong. § 2 (2021) .........................

Bivens Act of 2025,

H.R. 6091, 119th Cong. § 2 (2025) ....................

Bivens Act of 2025,

S. 3187, 119th Cong. § 2 (2025) .........................

Censorship Accountability Act,

H.R. 4848, 118th Cong. § 2 (2023) ....................

Constitutional Accountability Act,

H.R. 6092, 119th Cong. § 3 (2025) ....................

Constitutional Accountability Act,

H.R. 6327, 117th Cong. § 3 (2021) ....................

Constitutional Accountability Act,

S. 3186, 119th Cong. § 3 (2025) .........................

Constitutional Accountability Act,

S. 3415, 117th Cong. § 3 (2021) .........................

ICE and CBP Constitutional Accountability

Act, H.R. 7297, 119th Cong. § 3 (2026) ............

Protecting American Voters’ Rights Act,

H.R. 8858, 119th Cong. § 2 (2026) ....................

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Right to Record Act of 2026,

H.R. 9189, 119th Cong. § 3(b)(1) (2026) .......... 12

Surveillance Accountability Act,

H.R. 8470, 119th Cong. § 3 (2026) .................... 12

Qualified Immunity Abolition Act,

H.R. 7046, 119th Cong. § 3 (2026) .................... 12

Qualified Immunity Abolition Act,

S. 3625, 119th Cong. § 3 (2026) ......................... 12

Victims of Immigration Conduct Enforcement Act, S. 4333, 119th Cong. § 2 (2026) ....... 12

AGENCY MATERIALS

U.S. Dep’t of Justice, Fed. Bureau of Prisons,

Program Statement No. 3711.01,

Employee and Labor Management

Relations (Jun. 28, 2017),

https://www.bop.gov/policy/progstat/

3711.01.pdf .........................................................

U.S. Dep’t of Justice, Office of Inspector

Gen., Evaluation & Inspections Div. Rep.

23-065, Limited-Scope Review of the

Federal Bureau of Prisons’ Strategies to

Identify, Communicate, and Remedy

Operational Issues (May 2023),

https://oig.justice.gov/reports/limitedscope-review-federal-bureau-prisonsstrategies-identify-communicate-andremedy ...............................................................

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Gov’t Accountability Office, GAO-25107339, Bureau of Prisons: Strategic

Approach Needed to Prevent and Address

Employee Misconduct (Sept. 29, 2025),

https://www.gao.gov/products/

gao-25-107339 .................................................... 34

OTHER AUTHORITIES

Alfred Hill, Constitutional Remedies,

69 Colum. L. Rev. 1109 (1969) .........................

Daniel Kessler & Mark McClellan,

Do Doctors Practice Defensive Medicine?,

111 Q.J. Econ. 353 (1996) .................................

Mary Mason, Reckoning with Bivens,

Lawfare (Nov. 12, 2025),

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

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

IN THE

Supreme Court of the United States

————

NO. 25-417

FRANCIS NIELSEN,

Petitioner,

KEKAI WATANABE,

Respondent.

————

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

BRIEF FOR PETITIONER

————

INTRODUCTION

This Court has repeatedly warned that “recognizing a

cause of action under Bivens is ‘a disfavored judicial activity’ ” in “ ‘tension’ ” with—if not outright violation of—“ ‘the

Constitution’s separation of legislative and judicial power.’ ”

Egbert v. Boule, 596 U.S. 482, 491 (2022). The Court has

refused to extend Bivens to any new context for the past

45 years, across 13 cases. This case should be number

14—and perhaps the final installment of the Bivens saga.

The decision below authorized a Bivens damages action

against a federal-prison paramedic who declined to send

an inmate to the hospital for what was later diagnosed as

a fractured coccyx. The Ninth Circuit insisted it was not

extending Bivens because this case purportedly arises in

the same context as Carlson v. Green, 446 U.S. 14 (1980).

But a case presents a “new Bivens context” if it has any

meaningful difference from past cases where this Court

allowed a Bivens remedy. Carlson allowed a Bivens suit

against prison staff who exacerbated an inmate’s asthma

attack, killing him within hours. This case is meaningfully—profoundly—different.

In Carlson, the immediacy of the inmate’s medical

emergency and death made administrative or equitable

relief impossible: It was “damages or nothing.” Here, respondent could (and did) seek nonmonetary relief. Personal liability in extreme cases like Carlson also raises

different policy considerations than cases involving lesssevere conditions. And this case implicates alternative

remedial structures not considered in Carlson. Each difference renders this a new Bivens context compared to

Carlson. And no one disputes that, if the context is new,

Carlson—and thus Bivens—cannot be extended here.

The decision below fails to afford “utmost deference to

Congress’ preeminent authority in this area.” Egbert, 596

U.S. at 492. Authorizing a cause of action is a “legislative

endeavor.” Id. at 491. Whether a context is “new” thus

depends on whether Congress, from a legislative perspective, could find differences between this case and prior

ones that affect the costs and benefits of a damages remedy. Here, the answer is plainly “yes.” Congress could find

any or all of the differences—from the harm’s immediacy,

to its severity, to alternative remedies—sufficient to differentiate this case from Carlson.

The Court may decide it is finally time to overrule

Bivens and its progeny. Those cases are relics of the

bygone days when federal courts thought it appropriate to

create causes of action Congress had not authorized. The

Court has since rejected every stitch of Bivens’s reasoning. It has refused to extend Bivens time (and time and

time and time and time and time and time and time and

time and time and time and time) and again. It has

indicated that, if “called to decide Bivens today, [it] would

decline to discover any implied causes of action in the

Constitution.” Egbert, 596 U.S. at 502.

Yet Bivens continues to haunt our constitutional jurisprudence. It gives false hope to litigants whose suits are

(almost) invariably doomed. It burdens federal employees

caught in its crosshairs. It forces this Court to repeatedly

remind federal courts of their limited constitutional station. And it gives Congress an excuse not to claim its

rightful role in this area. Rather than continually engage

in Bivens error correction, the Court may wish to recognize that the error is Bivens itself.

OPINIONS BELOW

The court of appeals’ opinion (Pet.App.1a-23a) is reported at 115 F.4th 1034. That court’s denial of rehearing

(Pet.App.76a-116a), including accompanying opinions, is

reported at 139 F.4th 1056. The district court’s opinion

granting Nielsen’s motion to dismiss (Pet.App.24a-39a) is

unreported but available at 2023 WL 2500933.

STATEMENT OF JURISDICTION

The court of appeals entered judgment on September

6, 2024, and denied rehearing on June 5, 2025. Pet.App.1a,

76a. On August 21, 2025, Justice Kagan extended the time

to file the petition to October 3, 2025. 25A208. The petition

was filed October 3, 2025, and granted June 22, 2026. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

Relevant provisions of the Eighth Amendment; Prison

Litigation Reform Act, 18 U.S.C. § 3626, 42 U.S.C. § 1997e;

USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 391

(2001); Federal Prison Oversight Act, Pub. L. No. 118-71,

138 Stat. 1492 (2024); and Bureau of Prisons Administrative Remedy Program, 28 C.F.R. §§ 542.10-542.19, are set

forth in the appendix to this brief.

STATEMENT

I. LEGAL FRAMEWORK

This case involves the scope and propriety of the damages remedy for constitutional violations this Court

created in Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971), Davis v. Passman, 442 U.S.

228 (1979), and Carlson v. Green, 446 U.S. 14 (1980).

A. Historical Background

From the Framing until 1971, “the traditional way in

which civil litigation addressed abusive conduct” by

federal officials “was by subjecting them to liability for

common-law torts.” Hernández v. Mesa, 589 U.S. 93, 110

(2020); see Alfred Hill, Constitutional Remedies, 69

Colum. L. Rev. 1109, 1128 & nn.88-89 (1969) (Hill) (collecting cases). In such cases, allegations of constitutional

violations would arise only indirectly. An official sued for

a common-law tort could assert, as a “defense,” that “the

conduct complained of was done pursuant to a federally

imposed duty.” Wheeldin v. Wheeler, 373 U.S. 647, 652

(1963). But the plaintiff could defeat the defense by showing that the conduct was not federally authorized because

it contravened the Constitution or other federal law. Hill

1128-1129; see, e.g., Mitchell v. Harmony, 54 U.S. (13

How.) 115, 136-137 (1851); Slocum v. Mayberry, 15 U.S. (2

Wheat.) 1, 12-13 (1817); cf. Poindexter v. Greenhow, 114

U.S. 270, 282-283 (1885) (similar; state official).

Other remedies existed, too. As now, plaintiffs could

invoke federal courts’ equitable power “to enjoin unconstitutional actions by state and federal officers.” Armstrong

v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015).

That practice “reflects a long history of judicial review of

illegal executive action” by “courts of equity,” “tracing

back to England.” Ibid.; see Bell v. Hood, 327 U.S. 678, 684

& nn.4-5 (1946) (collecting cases). For two centuries, there

was no similar tradition of federal damages suits against

individual federal officers for constitutional violations.

In 1871, Congress authorized damages actions against

state officials who violate the Constitution. 17 Stat. 13

(1871), as amended, 42 U.S.C. § 1983. In the intervening

“100 years leading up to Bivens, Congress did not provide

a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal

Government.” Ziglar v. Abbasi, 582 U.S. 120, 130 (2017)

(emphasis added).

Thus, shortly before Bivens, this Court observed that

state law ordinarily provided the only damages remedy

against federal officials. Wheeldin, 373 U.S. at 652. Congress had enacted “no general statute making federal

officers liable for acts committed ‘under color,’ but in

violation, of their federal authority.” Ibid. “Congress

could, of course, provide otherwise, but it has not done so.”

Ibid. And, the Court concluded, “it is not for us to fill any

hiatus Congress has left in this area.” Ibid.

B. This Court Creates Damages Remedies for Constitutional Violations in Bivens, Davis, and Carlson

In 1971, Bivens “broke new ground,” Hernández, 589

U.S. at 99, recognizing for the first time an implied dam-

ages action against federal officials for alleged constitutional violations.

In Bivens, the Court allowed a damages suit against

Federal Bureau of Narcotics agents for a warrantless

search and seizure in violation of the Fourth Amendment.

403 U.S. at 389, 397. The Court, and Justice Harlan’s

concurrence, found support in the then-common practice

of allowing “suits for damages based on violations of

federal statutes lacking any express authorization of a

damage remedy.” Id. at 402, 407 (Harlan, J., concurring

in judgment) (citing J.I. Case Co. v. Borak, 377 U.S. 426

(1964)); see id. at 397 (opinion of the Court) (same).

Justice Harlan further observed that “damages [was]

the only possible remedy for someone in Bivens’ alleged

position.” 403 U.S. at 409-410. Bivens could not, for

example, have sought “injunctive relief ” while the search

and seizure were occurring. Id. at 410. “For people in

Bivens’ shoes, it is damages or nothing.” Ibid.

This Court has extended Bivens only twice. In Davis,

the Court allowed a former congressional staffer to sue a

Congressman for damages based on alleged sex discrimination in violation of the Fifth Amendment. 442 U.S. at

230-231, 248-249. “[E]quitable relief in the form of reinstatement” was unavailable because the Congressman had

left office. Id. at 245. “For Davis, as for Bivens, ‘it [was]

damages or nothing.’ ” Ibid. (quoting Bivens, 403 U.S. at

410 (Harlan, J., concurring in judgment)).

Finally, in Carlson, the Court allowed the mother of a

deceased inmate, representing his estate, to seek damages

against federal prison officials for an alleged Eighth

Amendment violation. 446 U.S. 14. The defendants had

failed to treat the inmate’s life-threatening asthma attack,

and instead exacerbated it with “contraindicated drugs

which made his attack more severe” and “a respirator

known to be inoperative which further impeded his

breathing.” Id. at 16 n.1. The inmate died within hours.

Ibid.; Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978).

The emergent nature of those events gave the inmate no

opportunity to seek injunctive, administrative, or similar

relief. As in Bivens and Davis, it was “ ‘damages or nothing.’ ”

Pet.App.98a (R. Nelson, J., dissenting from denial).

C. Recognizing the Tension Between Bivens and

the Separation of Powers, This Court Adopts a

Demanding Two-Step Bivens Framework

1. After Carlson, “the Court changed course.” Hernández, 589 U.S. at 99. Recognizing that “creating a cause

of action is a legislative endeavor,” the Court has “come

‘to appreciate more fully the tension between’ judicially

created causes of action and ‘the Constitution’s separation

of legislative and judicial power.’ ” Egbert v. Boule, 596

U.S. 482, 491 (2022) (emphasis added). Permitting judicially created damages remedies, the Court has noted, requires courts to “evaluate a ‘range of policy considerations

. . . at least as broad as the range . . . a legislature would

consider.’ ” Ibid. (quoting Bivens, 403 U.S. at 407 (Harlan,

J., concurring in judgment)). But “Congress is ‘far more

competent than the Judiciary’ to weigh such policy considerations. And the Judiciary’s authority to do so at all is, at

best, uncertain.” Ibid. (citation omitted).

This Court thus has “repeatedly emphasized that ‘recognizing a cause of action under Bivens is “a disfavored

judicial activity.” ’ ” Goldey v. Fields, 606 U.S. 942, 944

(2025) (per curiam). In the 45 years since Carlson, the

Court has rejected every invitation to extend Bivens—

thirteen times in all. See Chappell v. Wallace, 462 U.S. 296

(1983); Bush v. Lucas, 462 U.S. 367 (1983); United States

v. Stanley, 483 U.S. 669 (1987); Schweiker v. Chilicky, 487

U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471 (1994);

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

(2001); Wilkie v. Robbins, 551 U.S. 537 (2007); Hui v.

Castaneda, 559 U.S. 799 (2010); Minneci v. Pollard, 565

U.S. 118 (2012); Ziglar, 582 U.S. 120; Hernández, 589 U.S.

93; Egbert, 596 U.S. 482; Goldey, 606 U.S. 942. The Court

has indicated that, if “called to decide Bivens today, [it]

would decline to discover any implied causes of action in

the Constitution.” Egbert, 596 U.S. at 502.

2. Accordingly, Bivens claims are now subject to a

demanding two-part test.

At step one, courts assess whether the claim “presents

a new Bivens context”—that is, whether it differs “in a

meaningful way” from the three cases (Bivens, Davis, and

Carlson) where this Court recognized Bivens actions.

Ziglar, 582 U.S. at 139. The Court’s “understanding of a

‘new context’ is broad,” Hernández, 589 U.S. at 102, and

the “new-context inquiry is easily satisfied,” Ziglar, 582

U.S. at 149. Even “small” differences from the original

Bivens trio will present a new context; “a modest extension is still an extension.” Id. at 147, 149.

Differences in the “right at issue” or “mechanism of

injury” suffice to render the context new. Ziglar, 582 U.S.

at 139. But the new-context inquiry is broader than that.

Ibid. Other—still non-exhaustive—examples of meaningful differences include:

•

“the rank of the officers involved”;

•

“the generality or specificity of the official action”;

•

“the extent of judicial guidance as to how an officer

should respond to the problem or emergency”;

•

“the statutory or other legal mandate under which

the officer was operating”;

•

“the risk of disruptive intrusion by the Judiciary

into the functioning of other branches”; and

•

“the presence of potential special factors that previous Bivens cases did not consider.”

Id. at 139-140, 148.

When the context is “new,” courts at step two ask “if

there are ‘special factors’ indicating that the Judiciary is

at least arguably less equipped than Congress to ‘weigh

the costs and benefits of allowing a damages action to proceed.’ ” Egbert, 596 U.S. at 492. “If there is even a single

‘reason to pause before applying Bivens in a new context,’

a court may not recognize a Bivens remedy.” Ibid.

This Court has identified numerous special factors that

foreclose extending Bivens (and Carlson) with respect to

prisoner claims. Those factors include:

•

damages liability “could have negative systemic

consequences for prison officials and the ‘inordinately difficult undertaking’ of running a prison.”

•

“ ‘an alternative remedial structure’ already exists

for aggrieved federal prisoners”—“even if such

‘procedures are “not as effective as an individual

damages remedy.” ’ ”

•

“Congress has actively legislated in the area of

prisoner litigation but has not enacted a statutory

cause of action for money damages.”

Goldey, 606 U.S. at 944-945.

3. The two steps overlap. For example, step two asks

whether any “ ‘special factors’ ” counsel against extending

Bivens to a new context. Egbert, 596 U.S. at 492. And step

one instructs that “a new context arises when there are

‘potential special factors that previous Bivens cases did

not consider.’ ” Ibid. A previously unconsidered special

factor thus both presents a new context at step one, and

forecloses Bivens’s extension to that context at step two.

Accordingly, this Court has explained that the two steps

“often resolve to a single question: whether there is any

reason to think that Congress might be better equipped to

create a damages remedy.” Egbert, 596 U.S. at 492. “If

there is a rational reason to think” Congress might be better suited—“as it will be in most every case”—“no Bivens

action may lie.” Ibid.

D. Remedial Structures for Federal Prisoners

Congress and the Executive have created extensive remedial structures for federal prisoner complaints.

1. In 1979—four years after the inmate’s death in

Carlson—the Bureau of Prisons (BOP) established a

grievance process called the Administrative Remedy Program (ARP). See Administrative Remedy Program, 44

Fed. Reg. 62,250 (Oct. 29, 1979); 28 C.F.R. §§ 542.10-542.19.

The ARP “allow[s] an inmate to seek formal review of an

issue relating to any aspect of his/her own confinement.”

§ 542.10(a)-(b). It requires BOP officials to investigate and

respond to inmate complaints. § 542.11(a). If an “emergency” situation “threatens the inmate’s immediate health

or welfare,” BOP must respond within three days. § 542.18.

The ARP has four steps: (1) informal complaint and

attempt at informal resolution, § 542.13(a); (2) formal complaint, § 542.14(a); (3) appeal to the regional director,

§ 542.15(a); and (4) final appeal to BOP’s General Counsel,

ibid. If disclosure would endanger inmate “safety or wellbeing,” an inmate may complain directly to the regional

director. § 542.14(d)(1). Inmates may obtain assistance

from other inmates, staff, family, or attorneys. § 542.16.

2. Congress has also been active. In 1996, Congress

enacted the Prison Litigation Reform Act (PLRA). 110

Stat. 1321–66 (1996), as amended, 18 U.S.C. § 3626, 42

U.S.C. § 1997e. The PLRA seeks “to eliminate unwarranted federal-court interference with the administration of

prisons” and “ ‘reduce the quantity and improve the quality

of prisoner suits.’ ” Woodford v. Ngo, 548 U.S. 81, 93-94

(2006). It requires prisoners to exhaust administrative

remedies—such as the ARP—before filing any suit challenging prison conditions. 42 U.S.C. § 1997e(a). The

PLRA contemplates § 1983 damages actions against state

officials. See ibid. But Congress chose “not [to] provide

for a standalone damages remedy against federal jailers.”

Ziglar, 582 U.S. at 149 (emphasis added).

In 2001, Congress directed the Department of Justice’s

Office of Inspector General (OIG) to “receive complaints

alleging abuses of civil rights and civil liberties” by

Department (including BOP) personnel. USA PATRIOT

Act, Pub. L. No. 107-56, § 1001, 115 Stat. 391 (2001). OIG

must report “any abuses” to Congress. Ibid.

In 2024, Congress enacted the Federal Prison Oversight

Act, Pub. L. No. 118-71, 138 Stat. 1492 (2024), to be codified

at 5 U.S.C § 413(e). It provides for an Ombudsman to investigate inmate complaints regarding the “health, safety,

welfare, or rights of incarcerated people.” Id. at 1496

(§ 413(e)(3)(A)). The Ombudsman “shall render a decision

on the merits,” which may lead to BOP “disciplinary”

action. Id. at 1497-1498 (§ 413(e)(3)(C), (D)(iii)).

3. Congress has repeatedly declined proposals to create damages remedies for constitutional violations by federal officials. Some proposals would extend § 1983’s damages remedy to federal officials. 1 Others would cover only

E.g., Bivens Act of 2025, H.R. 6091, 119th Cong. § 2 (2025); Bivens Act

of 2025, S. 3187, 119th Cong. § 2 (2025); Bivens Act of 2021, H.R. 6185,

117th Cong. § 2 (2021); Bivens Act of 2021, S. 3343, 117th Cong. § 2 (2021).

law-enforcement officers. 2 Others would apply to certain

rights, such as the First Amendment, 3 Fourth Amendment, 4 or voting. 5 Still others would allow damages

actions “directly against the Federal Government.” 6 None

has been enacted.

II. PROCEEDINGS BELOW

Petitioner Francis Nielsen is a paramedic at the Federal Detention Center in Honolulu. 7 Respondent Kekai

Watanabe suffered injuries during a gang riot while an

inmate at that facility. Pet.App.3a-4a; see C.A. ER-75-85

(Dkt. 12) (operative first amended complaint).

A. District Court Proceedings

1. In July 2021, Watanabe was attacked by rival gang

members. Pet.App.3a-4a. After restoring order, prison

officials documented Watanabe’s known and visible injuries

and placed him on sick call. Pet.App.4a. Watanabe later

asked to see medical staff for headaches and pain. Ibid.

E.g., Qualified Immunity Abolition Act, H.R. 7046, 119th Cong. § 3 (2026);

Qualified Immunity Abolition Act, S. 3625, 119th Cong. § 3 (2026);

Constitutional Accountability Act, H.R. 6092, 119th Cong. § 3 (2025);

Constitutional Accountability Act, S. 3186, 119th Cong. § 3 (2025);

Constitutional Accountability Act, H.R. 6327, 117th Cong. § 3 (2021);

Constitutional Accountability Act, S. 3415, 117th Cong. § 3 (2021).

E.g., Right to Record Act of 2026, H.R. 9189, 119th Cong. § 3(b)(1)

(2026); Censorship Accountability Act, H.R. 4848, 118th Cong. § 2 (2023).

E.g., Surveillance Accountability Act, H.R. 8470, 119th Cong. § 3 (2026).

E.g., Protecting American Voters’ Rights Act, H.R. 8858, 119th

Cong. § 2 (2026).

Meyer, 510 U.S. 486 n.11 (collecting examples); see also, e.g., Accountability for Federal Law Enforcement Act, S. 2103, 117th Cong.

§ 2 (2021); Victims of Immigration Conduct Enforcement Act, S. 4333,

119th Cong. § 2 (2026); ICE and CBP Constitutional Accountability

Act, H.R. 7297, 119th Cong. § 3 (2026).

Although the complaint calls Nielsen a “nurse,” he is a paramedic.

Nothing here turns on the distinction.

Watanabe was seen by Nielsen, who treated Watanabe but

declined his request to be taken to the hospital. Ibid. 8

Watanabe does not allege further interaction with Nielsen.

Pet.App.26a; see C.A. ER-81-83. Watanabe alleges that,

in the months that followed, he made multiple requests to

prison staff for medical attention. Pet.App.4a. He alleges

he received over-the-counter pain medication but no

“ ‘actual treatment.’ ” Pet.App.4a, 26a. He alleges he filed

an ARP complaint, to which the warden allegedly falsely

responded that he had received treatment. C.A. ER-83.

Watanabe was eventually diagnosed with a fractured

coccyx (tailbone) with bone chips in surrounding tissue.

Pet.App.4a. After the diagnosis, prison officials agreed to

refer Watanabe to a specialist. Ibid.

2. Watanabe filed this Bivens action, alleging that

Nielsen violated his Eighth Amendment rights by “ ‘denying him proper medical treatment that would have properly

diagnosed and treated his injury,’ ” calling him a “ ‘cry

baby,’ ” and denying his request to go to the hospital.

Pet.App.24a-26a; see C.A. ER-81-83. Watanabe sought $3

million in damages. Pet.App.26a; C.A. ER-85. He sought

injunctive relief against other defendants. Pet.App.16a17a; C.A. ER-117 (original complaint).

The district court dismissed, holding Watanabe’s claim

not cognizable under Bivens. Pet.App.24a-25a. At Bivens

step one, the court held the claim presented a “new conWatanabe’s medical records, invoked by the Ninth Circuit, reflect

that Watanabe complained of severe back pain. Pet.App.4a. The

records show that, after consulting with an on-call physician, Nielsen

provided an anti-inflammatory injection (ketorolac/Toradol) and a

prescription for pain medication (ibuprofen/Motrin), and encouraged

Watanabe to perform “gentle stretching exercises as tolerated” and

follow up with sick call. Pet.App.21a, 94a; C.A. SER-7-9 (Dkt. 17).

text” from Carlson. Pet.App.31a-36a. “Watanabe’s allegations are dissimilar in both their ‘nature and severity’

from the facts in Carlson”: Watanabe’s fractured coccyx

was “not akin to the medical emergency” in Carlson that

“resulted in that inmate’s death.” Pet.App.32a-34a.

Allowing Watanabe’s claim risked transforming district

courts into “medical review board[s]” superintending

treatment of prison injuries. Pet.App.35a.

Watanabe also had access to an alternative remedy—

the ARP. Pet.App.36a. That remedy was a “ ‘special

facto[r]’ ” “not considered by the Court in Carlson,” and

“another reason that Watanabe’s claim arises in a new

context.” Pet.App.36a.

At step two, the district court held that special factors,

including the ARP’s “alternative remedial program for

federal prisoners,” foreclosed a Bivens remedy.

Pet.App.36a-38a.

B. The Ninth Circuit’s Decision

A divided Ninth Circuit panel reversed. Watanabe

conceded that, if this case presents a new context, special

factors foreclose extending Carlson at Bivens step two.

Pet.App.22a-23a, 96a n.1; C.A. Oral Arg. 6:05-6:12

(http://youtu.be/sU-8uFCTxs8). But the panel majority

(Paez & Koh, JJ.) held Watanabe’s claim did not present a

new context at step one, obviating any need to consider

step two. Pet.App.16a.

The panel ruled that “Watanabe’s claim is identical to

Carlson in all meaningful respects”: He alleged “deliberate medical indifference while incarcerated, in violation of

the Eighth Amendment’s proscription against cruel and

unusual punishment,” and “Carlson dealt with the exact

same issue.” Pet.App.3a; accord Pet.App.12a, 17a. The

panel acknowledged that, unlike in Carlson, Watanabe’s

injury was neither fatal nor life-threatening. Pet.App.13a.

But it declared that difference not “meaningful” because

failure to respond to non-life-threatening conditions can

“constitute deliberate indifference in violation of the

Eighth Amendment.” Pet.App.14a. Nor did it matter

that, for Watanabe, it was not “damages or nothing.” The

panel ruled he could seek Bivens damages as well as

injunctive relief “related to his ongoing medical care.”

Pet.App.16a-17a.

The panel asserted that “[t]his case does not present a

risk of intrusion by the judiciary into the operations of the

BOP any more than what Carlson already permits.”

Pet.App.10a. The panel did not address the concern that

allowing Bivens remedies for lesser harms like Watanabe’s would transform district courts into “ ‘medical review

board[s]’ ” for federal prisons. Pet.App.35a.

The panel did not dispute this Court’s statement that “a

new context arises when there are ‘potential special

factors that previous Bivens cases did not consider.’ ”

Egbert, 596 U.S. at 492. But the panel ruled that “alternative remedial structures can be one ‘special factor,’ to be

considered at the second step of the Bivens analysis.”

Pet.App.15a. The panel was “not required to undertake

the second step” because it had already determined that

Watanabe’s claim did not present a new context at step one.

Ibid. “And even if [it] were to consider” alternative

remedial structures “at step one,” the panel insisted the

ARP “does not present a new Bivens context.” Ibid.

Judge Milan Smith dissented. This suit and Carlson,

he explained, are “meaningfully different” with respect to

severity of the alleged mistreatment and medical need.

Pet.App.20a-22a. And “ ‘alternative remedies’ ” like the

ARP are “special factors counsel[ing] against recognizing

a [Bivens] remedy.” Pet.App.22a-23a.

C. Denial of Rehearing

The Ninth Circuit denied rehearing, with eleven judges

dissenting.

1. In a statement respecting denial of rehearing, the

panel-majority members urged that “severity of misconduct or injury” was irrelevant because severity concerns

only “the merits of the constitutional claim,” not whether

a claim presents a new context. Pet.App.84a-85a.

The panel majority did not deny the ARP is a special

factor not considered in Carlson. But they reiterated their

view that “alternative remedies are generally not relevant

at step one” because “[s]tep one focuses on the alleged violation,” while “[s]tep two” “focuses on remedies.” Pet.App.79a80a. They also urged that the ARP could not present a new

context because it was created in October-November 1979,

and so “already existed when the Supreme Court decided

Carlson” in April 1980. Pet.App.78a. They deemed it

“irrelevant” that the Carlson plaintiff “could not herself

use the ARP.” Pet.App.82a.

2. Judge Ryan Nelson dissented, joined by nine other

judges. Pet.App.89a-111a. The dissent explained that

courts “cannot identify a preexisting Bivens context by

simply pointing to the Eighth Amendment and noting that

Carlson dealt with the same type of claim.” Pet.App.103a.

It identified several “meaningful differences” from Carlson. Ibid. Carlson was “a wrongful death case where the

remedy [was] ‘damages or nothing.’ ” Pet.App.109a.

Watanabe’s injury was “meaningfully less severe”—and,

unlike Carlson, relief was not “ ‘damages or nothing.’ ”

Pet.App.98a, 103a-104a. The ARP is also an “alternative

remedy” that “Carlson did not consider” and that was

“available to Watanabe [but] unavailable to the plaintiff in

Carlson.” Pet.App.98a. “If that is not a meaningful differ-

ence,” the dissent concluded, “it’s hard to say what is.”

Pet.App.98a-99a.

The dissent rejected the contention that alternative

remedies are generally irrelevant at Bivens step one. It

explained that, in Ziglar, this Court held “ ‘alternative remedies’ ” presented a new context at step one. Pet.App.97a98a. And Egbert explained the two steps are “not theoretically distinct.” Pet.App.102a.

While the ARP existed when Carlson was decided (but

not when the conduct occurred), the dissent explained,

what mattered was that “ ‘ “previous Bivens cases did not

consider ” ’ ” it. Pet.App.99a-100a (quoting Egbert, 596

U.S. at 492). And the plaintiff in Carlson—the inmate’s

mother, suing for his estate—could not have used the ARP

anyway. Pet.App.98a, 100a. “[I]f the question is whether

there is a single meaningful difference between Carlson

and this case,” the dissent concluded, “the fact that the

mother in Carlson could not use a remedy that was available to Watanabe easily meets that bar.” Pet.App.100a.

3. Judge Collins dissented separately. Lamenting

“confusion” over Bivens, he expressed hope that this

Court would provide “clarity.” Pet.App.111a, 116a.

SUMMARY OF ARGUMENT

I. A. Given the grave separation-of-powers concerns

Bivens creates, this Court subjects Bivens claims to a

demanding two-step test. Step one asks whether the case

presents a “new Bivens context”—whether there is any

difference from earlier Bivens cases that Congress could

find meaningful. If so, at step two, a Bivens suit cannot

proceed if any “special factor” indicates Congress is

arguably better equipped to weigh the costs and benefits

of a damages remedy. Those steps resolve to a single

question: whether there is any reason to think Congress

might be better equipped to create a damages remedy.

B. This case meaningfully differs from Carlson. The

prison staff in Carlson exacerbated an inmate’s asthma

attack, killing him within hours: He could not pursue nonmonetary remedies; it was “damages or nothing.” Watanabe could and did pursue nonmonetary remedies.

Congress commonly distinguishes based on severity of

injury—and treats death differently. Life-threatening conduct raises meaningfully different policy concerns, including the balance of costs, benefits, and disruption from prisoner lawsuits.

The Ninth Circuit insisted that this case and Carlson present the same context because both involve Eighth Amendment deliberate-indifference claims. But cases involving

the same right and mechanism of injury still present different contexts if there is any difference Congress could find

meaningful. That is not arbitrary line-drawing; it reflects

that creating causes of action is a legislative endeavor.

Differences between life and death, and “damages or

nothing,” are anything but arbitrary.

C. Special factors, not considered in Carlson, also render the context new. The ARP provides an alternative

remedial structure for federal prisoners. The PLRA,

enacted after Carlson, mandates that prisoners exhaust

administrative remedies like the ARP. Unlike in Carlson,

Watanabe could seek an injunction. And post-Carlson

legislation allows inmate complaints against BOP employees, while declining a damages remedy.

The Ninth Circuit erred in relegating alternative remedies to Bivens step two. Ziglar held that alternative

remedies not considered in Carlson render a context

“new.” Confining a special factor to step two makes no

sense; it would allow courts to authorize damages remedies even though Congress is better suited to make that

call. It is irrelevant that the ARP existed when Carlson

issued: What matters is that it was not considered. The

ARP was also unavailable to the inmate and plaintiff in

Carlson. Nor could Carlson consider the ARP in combination with post-Carlson legislation. Watanabe’s reliance on

Carlson’s reasoning, meanwhile, fails to apply the prevailing Bivens framework.

D. Special factors preclude extending Bivens and Carlson to a new context at step two, as Watanabe concedes.

That concession confirms this case presents a new context

at step one. The two steps resolve to the single question

whether Congress might be better equipped to create a

damages remedy. As one step or two, Watanabe’s Bivens

claim cannot proceed.

II. The Court may wish to overrule Bivens. Creating

causes of action is a legislative, not judicial, endeavor.

Every stare decisis factor counsels letting Bivens go. The

Court has repudiated its reasoning; it is unworkable; and

no reliance favors retention. Leaving Bivens on the books

gives plaintiffs false hope, burdens defendants, and deters

Congress from exercising its rightful role.

ARGUMENT

Over the past 45 years, in 13 cases, this Court has

refused to extend the Bivens damages remedy to any new

contexts. Bivens and its progeny—Davis and Carlson—

are remnants of “ ‘ the heady days in which this Court

assumed common-law powers to create causes of action.’ ”

Egbert v. Boule, 596 U.S. 482, 491 (2022). Those days are

“long past.” Ibid. This Court now recognizes that “creating a cause of action is a legislative endeavor,” and that

judicial creation of a damages remedy Congress has not

authorized “risks arrogating legislative power” in violation

of the separation of powers. Ibid. (emphasis added);

Hernández v. Mesa, 589 U.S. 93, 100 (2020).

This Court now approaches Bivens claims with “utmost

deference to Congress’ preeminent authority in this area.”

Egbert, 596 U.S. at 492. Claims present a “ ‘new Bivens

context’ ” if there is any reason Congress could find them

meaningfully different from Bivens, Davis, and Carlson.

Ibid. And new Bivens claims must be rejected if “there is

any reason to think that Congress might be better equipped

to create a damages remedy.” Ibid. (emphasis added).

Under those principles, this Bivens suit cannot proceed. Watanabe seeks to hold Nielsen, a prison paramedic, personally liable under the Eighth Amendment for not

sending him to the hospital for what was later diagnosed

as a fractured coccyx. Congress has never created such a

damages remedy. And while the Ninth Circuit insisted

this case presents the exact same context as Carlson—

where prison staff exacerbated an inmate’s asthma attack,

killing him within hours—the differences are myriad and

meaningful. Each could affect Congress’s view of the costs

and benefits of a damages remedy. Each makes this a new

context to which Bivens and Carlson cannot be extended.

“This Court has repeatedly emphasized that ‘recognizing a cause of action under Bivens is “a disfavored judicial

activity.” ’ ” Goldey v. Fields, 606 U.S. 942, 944 (2025) (per

curiam). It has held that the new-context inquiry is easily

satisfied. And it has left no doubt that Bivens, Davis, and

Carlson cannot be extended to any new context. As a

result, this should have been an easy case. But the Ninth

Circuit, like too many courts in too many cases over too

many years, blessed a Bivens remedy nonetheless.

This Court may conclude that enough is enough. Until

Bivens’s zombie is finally interred, courts will continue to

meddle in the “legislative endeavor” of creating causes of

action. Egbert, 596 U.S. at 491. Bivens will continue to

offer litigants false hope as they pursue damages claims

no legislature has authorized and which almost always fail.

Federal agencies and employees will continue to bear the

burdens of that litigation. This Court will continue to work

cleanup. And Congress will continue to have an excuse not

to step into the field itself. That state of affairs could

continue. Or the Court could decide it is time to give

Bivens, Davis, and Carlson a proper burial, and hand

responsibility back to Congress where it belongs.

I. THE NINTH CIRCUIT IMPROPERLY EXTENDED BIVENS

TO A NEW CONTEXT

Time and again, this Court has “emphasized that ‘recognizing a cause of action under Bivens is “a disfavored

judicial activity.” ’ ” Goldey, 606 U.S. at 944. In the 45

years since the three original Bivens cases—Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),

Davis v. Passman, 442 U.S. 228 (1979), and Carlson v.

Green, 446 U.S. 14 (1980)—this Court has refused every

invitation to extend Bivens to any new context.

This Court’s “understanding of a ‘new context’ is

broad.” Hernández, 589 U.S. at 102. A new context arises

if there is any difference from Bivens, Davis, and Carlson

that Congress could find “meaningful” from a “policy” perspective. Egbert, 596 U.S. at 491-492; Ziglar v. Abbasi, 582

U.S. 120, 139-140, 147-149 (2017). This case self-evidently

presents a new context under that “easily satisfied”

inquiry. Ziglar, 582 U.S. at 149. Unlike Carlson, this is

not a case of “damages or nothing.” The injury differs in

nature, severity, and immediacy. And this case presents

special factors—including alternative remedial structures—that Carlson never considered.

A. The Expansive “New Bivens Context” Inquiry Is

Satisfied If There Is Any Difference Congress

Could Find Meaningful

1. “Bivens, Davis, and Carlson were the products of

an era when the Court routinely inferred ‘causes of action’

that were ‘not explicit’ in the text of the provision that was

allegedly violated.” Hernández, 589 U.S. at 99. “During

this ‘ ancien regime,’ * * * 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 131-132. “Bivens extended this practice to

claims based on the Constitution itself,” allowing a damages remedy against federal agents for alleged Fourth

Amendment violations. Hernández, 589 U.S. at 99. Davis

and Carlson soon extended Bivens to two other contexts.

Since Carlson, however, this Court has come “to appreciate more fully the tension between” judicially created

causes of action and “the Constitution’s separation of

legislative and judicial power.” Hernández, 589 U.S. at

100. “At bottom, creating a cause of action is a legislative

endeavor”: It requires “balancing interests,” weighing the

“costs and benefits” of myriad “policy considerations,” and

“compromise.” Egbert, 596 U.S. at 491; Hernández, 589

U.S. at 100; Ziglar, 582 U.S. at 133-134, 136. As Justice

Harlan acknowledged in Bivens, recognizing a damages

remedy requires courts to “evaluate a ‘range of policy considerations . . . at least as broad as the range . . . a legislature would consider.’ ” Egbert, 596 U.S. at 491 (quoting

403 U.S. at 407 (Harlan, J., concurring in judgment)).

Such policy-laden decisionmaking fits uneasily—perhaps

irreconcilably—with the judicial role. It “risks arrogating

legislative power,” and “ ‘places great stress on the separation of powers.’ ” Hernández, 589 U.S. at 100; Egbert,

596 U.S. at 497 n.3.

In light of those grave separation-of-powers concerns,

this Court long ago “abandoned” the practice of fashioning

private causes of action to enforce statutes that do not

provide them. Alexander v. Sandoval, 532 U.S. 275, 287

(2001). The Court has correspondingly indicated that, if

“called to decide Bivens today, [it] would decline to discover

any implied causes of action in the Constitution.” Egbert,

596 U.S. at 502. And while the Court has not yet “dispense[d] with Bivens altogether,” it warns that “recognizing a cause of action under Bivens is ‘a disfavored judicial

activity’ ” that may not be undertaken if there is “ ‘[e]ven a

single sound reason to defer to Congress.’ ” Id. at 491.

2. This Court accordingly subjects Bivens claims to a

demanding two-step test. Egbert, 596 U.S. at 492. At step

one, the Court asks “whether the case presents ‘a new

Bivens context.’ ” Ibid. If so, at step two, “a Bivens remedy is unavailable if there are ‘special factors’ indicating

that the Judiciary is at least arguably less equipped than

Congress to ‘weigh the costs and benefits of allowing a

damages action to proceed.’ ” Ibid.; see Ziglar, 582 U.S. at

136 (describing such factors as “ ‘ “ special factors counselling hesitation” ’ ”). A court may not recognize a new Bivens claim if “there is any rational reason (even one) to

think that Congress is better suited to ‘weigh the costs and

benefits of allowing a damages action to proceed.’ ”

Egbert, 596 U.S. at 496.

Because the Court’s “understanding of a ‘new context’

is broad,” the step-one “new-context inquiry” is “easily

satisfied.” Hernández, 589 U.S. at 102; Ziglar, 582 U.S. at

149. A case presents a “new” context if it differs from

Bivens, Davis, and Carlson in any “ ‘meaningful way.’ ”

Hernández, 589 U.S. at 102. Importantly, authorizing a

cause of action is a “legislative endeavor.” Egbert, 596 U.S.

at 491. And legislators may consider a near-infinite “ ‘range

of policy considerations.’ ” Ibid. A case thus presents a

new Bivens context if it displays any difference from prior

Bivens cases that might affect the policy considerations

legislators could consider when deciding whether to allow,

limit, or deny a damages remedy. Put otherwise: A difference is “meaningful” enough to render the context “new”

so long as Congress, exercising plenary legislative judgment, could think it meaningful.

A case thus may present a new context even if “the right

at issue” and “the mechanism of injury” are the “same” as

a prior Bivens case. Ziglar, 582 U.S. at 139. This Court’s

cases catalogue a host of meaningful differences, from

officer rank to “risk of disruptive intrusion by the Judiciary into the functioning of other branches.” Id. at 139-140;

pp. 8-9, supra. And a case “present[s] a new context * * *

if there are potential special factors that were not considered in previous Bivens cases.” Ziglar, 582 U.S. at 148.

That makes sense. A “special factor” is any reason to

defer to Congress’s authority to grant or deny a damages

remedy. Egbert, 596 U.S. at 492-493. A special factor

earlier Bivens cases did not consider is thus necessarily a

difference Congress could find meaningful.

While this Court has described the Bivens inquiry as

two steps, “those steps often resolve to a single question:

whether there is any reason to think that Congress might

be better equipped to create a damages remedy.” Egbert,

596 U.S. at 492. The answer here—as in “most every

case,” ibid.—is “yes.”

B. Differences in Nature, Severity, and Immediacy

Make This a New Context from Carlson

The Ninth Circuit found no new Bivens context at step

one because, in its view, there is no meaningful difference

between this case and Carlson. Pet.App.8a-14a. But the

cases differ markedly in nature, severity, and immediacy.

Those differences are meaningful—and Congress certainly could so find—for a host of reasons.

1. For Watanabe, It Is Not “Damages or Nothing”

This Court and its members have repeatedly identified

one critical feature of cases where it has allowed a Bivens

remedy: For the plaintiffs in those cases, it was “damages

or nothing.” In Bivens itself, federal agents conducted a

warrantless search and seizure. As Justice Harlan

explained, “damages [was] the only possible remedy for

someone in Bivens’ alleged position.” 403 U.S. at 409-410

(concurring in judgment). Bivens could not, for example,

have sought “injunctive relief ” while the alleged search

and seizure were occurring. Id. at 410. “For people in

Bivens’ shoes, it is damages or nothing.” Ibid. Likewise,

the plaintiff in Davis could not obtain injunctive or

administrative relief. “For Davis, as for Bivens, ‘it [wa]s

damages or nothing.’ ” Davis, 442 U.S. at 245.

That was true in Carlson, too. The inmate there suffered an acute and fatal medical emergency: an asthma

attack that prison staff exacerbated with contraindicated

drugs and a broken respirator, causing the inmate’s death

within hours. 446 U.S. at 16 n.1; Green v. Carlson, 581

F.2d 669, 671 (7th Cir. 1978). That rapidly unfolding

emergency left no opportunity for the inmate (or his estate)

to seek nonmonetary relief to address the constitutional

violation. The inmate could not have sought an injunction

while suffering his attack; nor could his estate have

obtained injunctive relief after his death. Carlson, like

Bivens and Davis, “was a case of ‘damages or nothing.’ ”

Pet.App.98a (R. Nelson, J., dissenting from denial) (quoting Bivens, 403 U.S. at 410 (Harlan, J., concurring in

judgment)).

Here, by contrast, Watanabe alleges he was not adequately treated or sent to a hospital for back pain that was

diagnosed as a fractured coccyx months later. Pet.App.4a;

pp. 12-13 & n.8, supra. That is a far cry from the dire and

fatal emergency in Carlson. Unlike the inmate there,

Watanabe could pursue non-damages remedies. He could

file an administrative complaint requesting a hospital

transfer or other treatment believed necessary. 28 C.F.R.

§§ 542.10, 542.13-542.15. Failing that, he could go to court

for an appropriate injunction. 18 U.S.C. § 3626; Ziglar,

582 U.S. at 144, 148 (noting possibility of injunctive or

habeas relief ). Indeed, a suit for injunctive relief could be

“a faster and more direct route to relief than a suit for

money damages.” Id. at 145. “A successful [injunction

request] would have required officials” to send Watanabe

to a hospital, or provide other treatment found necessary,

“immediately.” Ibid. But “this damages suit remains

unresolved” years later. Ibid. Watanabe did pursue

administrative and injunctive relief, and the Ninth Circuit

held he could pursue injunctive relief “related to his

ongoing medical care.” Pet.App.16a-17a. 9

The Court regularly consults whether Bivens plaintiffs

could invoke “traditional equitable powers.” Ziglar, 582

U.S. at 133, 148. More important, whether the case is

“damages or nothing” is something Congress could believe

relevant when deciding whether to create a private cause

of action. That makes this “a new context.” Id. at 148.

Simply put, Carlson was “damages or nothing.” This case

is not. “If that is not a meaningful difference, then it’s hard

Watanabe alleges he filed an “Administrative Remedy (BP-9)” complaint under the ARP, and that the warden responded by “stat[ing]

that the Plaintiff has received treatment which he has not.” C.A. ER83. Watanabe’s original district-court complaint requested an injunction concerning prison housing policy, and the Ninth Circuit construed

his filings as also seeking injunctive relief for “his ongoing medical

care.” Pet.App.5a, 16a; C.A. ER-117.

to say what is.” Pet. App. 98a-99a (R. Nelson, J., dissenting from denial).

2. Differences in Severity Make the Context New

This case differs from Carlson not merely in the harm’s

immediacy, but also its severity. The inmate in Carlson

died. Watanabe’s injury was neither fatal nor life-threatening. There are few differences more meaningful than

that between life and death.

Congress regularly singles out conduct resulting in

death for both deterrence and compensation. Criminal

statutes often allow or mandate heightened penalties where

offending conduct “causes the death of any person.”10

Statutes also specifically address compensation in event of

death. E.g., 5 U.S.C. § 8102a(a); § 8133; 33 U.S.C. § 909; 46

U.S.C. § 30302. Congress could draw the same distinction

between fatal and non-fatal harm when evaluating whether to impose civil deterrence and afford compensation

through individual officer liability. This Court has described Bivens as “ ‘concerned solely with deterring the

unconstitutional acts of individual officers.’ ” Egbert, 596

U.S. at 498 (emphasis added). And deciding “adequate

level[s] of deterrence” is “a legislative determination that

must be left to Congress, not the federal courts.” Ibid.

Because differences in severity—including death—could

affect Congress’s view of appropriate deterrence, that

difference is meaningful for Bivens purposes.

The recognition that “death is different” has also long

informed this Court’s approach to the Eighth Amendment’s ban on cruel and unusual punishments—the basis

for suit both here and in Carlson. Gregg v. Georgia, 428

U.S. 153, 188 (1976). If death is a “differen[ce]” that can

18 U.S.C. § 844(f )(3); see, e.g., § 1365(a)(2); § 1864(b)(1); § 1952(a)(B);

§ 1992(a); § 2113(e); § 2119(3); § 2251(e); § 2261(b)(1); § 2262(b)(1).

justify special Eighth Amendment safeguards, ibid., it

likewise is a difference Congress could find meaningful in

assessing possible Eighth Amendment remedies, such as

damages liability. And even if “death-is-different” were

jurisprudentially unsound, Atkins v. Virginia, 536 U.S.

304, 337 (2002) (Scalia, J., dissenting), it remains a meaningful “policy” distinction in the “legislative endeavor” of

creating causes of action, Egbert, 596 U.S. at 491 (emphasis added).

Congress could draw different lines. It might think the

deterrent of damages liability is warranted where offenses

cause “serious bodily injury.” Cf. 18 U.S.C. § 1365(a)(3);

§ 2119(2). Or it could distinguish among “bodily injury,”

“serious bodily injury,” and “life threatening bodily injury.” Cf. § 1864(b)(2)-(3), § 2261(b)(2)-(3). It could make

other distinctions. Cf. 5 U.S.C. §§ 8105-8107 (compensation for, e.g., total and partial disability, disfigurement,

and dismemberment). It could think constitutional violations by federal employees warrant personal liability

always—or never, given other means of deterrence. What

matters is that legislators weighing the costs and benefits

of a damages remedy could see a meaningful difference

between the injury in Carlson and the less-severe injury

alleged here. That renders this Bivens context “new.”

The potential for increased “risk of disruptive intrusion

by the Judiciary into the functioning of other branches”

likewise makes this a new context. Ziglar, 582 U.S. at 140.

The “operation of our correctional facilities is peculiarly

the province of the Legislative and Executive Branches of

our Government, not the Judicial.” Bell v. Wolfish, 441

U.S. 520, 548 (1979). Exposing prison staff to personal

damages liability makes “the ‘inordinately difficult undertaking’ of running a prison” harder. Goldey, 606 U.S. at

944. Congress could readily think that, even if such disrup-

tion might be acceptable for extreme cases like Carlson,

extending it to less-severe injuries would have intolerable

“negative systemic consequences.” Ibid.

For example, damages actions based on inmate deaths

are far less likely to be used as a tool of harassment against

prison staff. See Egbert, 596 U.S. at 499. And non-lifethreatening situations are far more “common” than those

resulting in death. Id. at 500. Extending Carlson to lesssevere injuries is thus “likely to impose ‘a significant

expansion of Government liability.’ ” Ibid.

Medical decisionmaking driven by fear of liability—

“defensive medicine”—can lead to unnecessary and costly

treatments. See Daniel Kessler & Mark McClellan, Do

Doctors Practice Defensive Medicine?, 111 Q.J. Econ. 353

(1996). Prison medical professionals faced with patients

like Watanabe, for example, may be tempted to reduce

personal liability risk by acquiescing to demands to visit

the hospital or order additional tests, even if an inmate’s

condition does not otherwise counsel such steps. That

imposes serious costs. Prisons do not “traditionally house

specialists or diagnostic and testing equipment.” Watkins

v. Mohan, 144 F.4th 926, 949 (7th Cir. 2025) (Kirsch, J.,

concurring in judgment in part and dissenting in part).

“And because prisoners must be transported and monitored by armed guards at all times, these visits generate

significant costs and risks on top of the need to schedule

and pay for the care itself.” Ibid.

Congress is attuned to that risk of disruption. Cf. 42

U.S.C. § 1997e(f )(1) (providing for prisoner-suit hearings

“without removing the prisoner from the facility in which

the prisoner is confined”). It could readily weigh the risk

differently where, as here, an injury is less severe than in

Carlson. That renders the context new.

3. Contrary Arguments Lack Merit

The decision below declared that “Watanabe’s claim is

identical to Carlson in all meaningful respects” because

“Watanabe alleges he suffered deliberate medical indifference while incarcerated, in violation of the Eighth Amendment’s proscription against cruel and unusual punishment,”

and “Carlson dealt with the exact same issue.” Pet.App.3a;

accord Pet.App.12a, 17a. It urged differences in severity

were irrelevant because less-severe conduct could still

“constitute deliberate indifference in violation of the Eighth

Amendment.” Pet.App.14a.

That misunderstands the test. A case may present a new

context even if “the right at issue” and “mechanism of

injury” are “the same” as a prior Bivens case. Ziglar, 582

U.S. at 139. The Court has so held with respect to Carlson

specifically: In Malesko, “the Court held that the contexts

were different” “[e]ven though the right and the mechanism of injury were the same as they were in Carlson.”

Ibid. (citing 534 U.S. at 70 & n.4). The proper test is instead

whether Congress could find any differences between the

cases meaningful when weighing the costs and benefits of a

damages remedy. It plainly could here. The differences in

nature, severity, and immediacy are the difference between

life and death, and between “damages or nothing.”

The Ninth Circuit insisted this “case does not present a

risk of intrusion by the judiciary into the operations of the

BOP any more than what Carlson already permits.”

Pet.App.10a. But there is a vast difference between imposing damages liability in rare cases like Carlson, where the

inmate dies and cannot pursue other relief, and doing so in

the many more cases involving less-severe injuries.

Congress could think the disruption tolerable there but

intolerable here. Even a “modest extension is still an

extension.” Ziglar, 582 U.S. at 147.

The panel majority suggested that “severity” should

inform only “the merits of the constitutional claim.”

Pet.App.84a. This Court has rejected the argument that

considerations cannot establish a new Bivens context simply because they are also relevant to “whether a constitutional violation exists.” Ziglar, 582 U.S. at 176-178 (Breyer, J.,

dissenting). Properly so: Even if a violation is established,

differences in severity or other particulars can inform legislative judgments regarding whether deterrence, disruption, and other considerations weigh for or against a damages remedy.

Nor does recognizing such differences require “arbitrary

line-drawing.” Pet.App.85a. The “legislative endeavor” of

creating causes of action inevitably involves drawing lines

that balance competing interests. Egbert, 596 U.S. at 491;

see Hernández, 589 U.S. at 100. The question is not

whether courts exercising judicial judgment would themselves draw a particular line, but whether Congress exercising legislative judgment could. Any other approach

would fail to afford “utmost deference to Congress’ preeminent authority in this area.” Egbert, 596 U.S. at 492.

Besides, the lines here are hardly “arbitrary.” The law has

long drawn distinctions based on the severity of injury, including death. And distinguishing suits based on whether

relief is “damages or nothing” is foundational to Bivens

itself.

The panel majority’s assertion that “the wrongful conduct and injuries Watanabe suffered were not meaningfully

less severe” than the fatal mistreatment in Carlson,

Pet.App.86a n.4, thus blinks reality. Congress could surely

see things differently. 11

While immaterial to the legal issue here, the panel majority was mistaken in suggesting that Nielsen “provided no meaningful treatment

C. Special Factors Not Considered in Carlson

Present a New Bivens Context

Cases also present a “new context” if they implicate

“potential special factors that previous Bivens cases did

not consider.” Ziglar, 582 U.S. at 139-140, 148. One

“special factor” is the existence of “alternative remedial

structures.” Egbert, 596 U.S. at 492-493, 498; see Ziglar,

582 U.S. at 137, 145, 148 (collecting cases); Goldey, 606

U.S. at 944-945. Such structures pervade this case.

1. This Case Is Replete with Alternative Remedi-

al Structures Carlson Never Considered

This case implicates a host of alternative remedial

structures Carlson did not consider.

BOP’s Administrative Remedy Program. The ARP

provides “ ‘an alternative remedial structure’ * * * for aggrieved federal prisoners” to challenge allegedly unconstitutional conduct. Goldey, 606 U.S. at 944 (citing Malesko,

534 U.S. at 74); see 28 C.F.R. § 542.10(a); p. 10, supra.

That makes the ARP a “special factor.” Egbert, 596 U.S.

at 493, 497-498. This Court so held in Goldey. 606 U.S. at

944. And Carlson undisputedly did not consider the ARP,

which was established years after the inmate’s death in

that case. The presence of that previously unconsidered

special factor is a difference “meaningful enough to make

[this] context a new one.” Ziglar, 582 U.S. at 139-140.

Court after court has so held. Pet.15-17.

Ziglar makes that conclusion especially clear. There,

the Court considered prisoner-mistreatment claims with

“significant parallels” to Carlson, including “allegations of

despite Watanabe’s repeated pleas over several months.” Pet.App.86a

n.4. Watanabe alleges multiple requests to other prison staff, but only

one encounter with Nielsen (who provided anti-inflammatory and pain

medication). See pp. 12-13 & n.8, supra.

injury * * * just as compelling as those at issue in Carlson.” 582 U.S. at 147. The Court nonetheless held the case

sought “to extend Carlson to a new context.” Ibid. The

Court explained that “a case can present a new context for

Bivens purposes * * * if there are potential special factors

that were not considered in previous Bivens cases.” Id. at

148. It then identified “the existence of alternative remedies” as a special factor “not considered in the Court’s

previous Bivens cases,” and declared that difference

sufficiently “meaningful” to present a new context from

Carlson. Id. at 148-149. So, too, here with the ARP’s

alternative remedy.

Prison Litigation Reform Act. “Some 15 years after

Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive

changes to the way prisoner abuse claims must be brought

in federal court.” Ziglar, 582 U.S. at 148. The PLRA

mandated that prisoners exhaust administrative remedies, 42 U.S.C. § 1997e(a)—cementing the ARP’s role as

an alternative remedial structure for federal prisoners.

More fundamentally, the PLRA gave Congress “specific occasion to consider the matter of prisoner abuse and

to consider the proper way to remedy those wrongs.”

Ziglar, 582 U.S. at 148. Yet Congress chose “not [to]

provide for a standalone damages remedy against federal

jailers.” Id. at 149 (emphasis added). That “Congress has

actively legislated in the area of prisoner litigation but has

not enacted a statutory cause of action for money damages” “suggest[s] that Congress does not want a damages

remedy.” Goldey, 606 U.S. at 944; Ziglar, 582 U.S. at 148.

That post-Carlson “legislative action” is “itself a [special]

factor counseling hesitation” that Carlson did not consider. Ziglar, 582 U.S. at 148. It, too, presents a new context.

Injunctive Relief. Carlson had no occasion to consider

injunctive relief, given the immediacy of the inmate’s

death. Ziglar thus identified “an injunction” as an “alternative remed[y]” “not considered in the Court’s previous

Bivens cases” that presented a new context from Carlson.

582 U.S. at 147-149. Similarly here, Watanabe could—and

did—seek an injunction ordering a hospital transfer or

other treatment. Pet.App.16a; p. 26 & n.9, supra. That notpreviously-considered remedy renders the context new.

Investigation and Discipline. Egbert held that agency

“investigation[s]” and “grievance process[es]” are “alternative remedies” that constitute special factors foreclosing a Bivens remedy. 596 U.S. at 497-498. Such structures

exist here, even beyond the ARP.

Since 2001, Congress has required the Justice Department’s OIG to “receive complaints alleging abuses of civil

rights and civil liberties” by Department (including BOP)

personnel. USA PATRIOT Act, Pub. L. No. 107-56,

§ 1001, 115 Stat. 391 (2001). Prisoner complaints can lead

to investigation by OIG or BOP’s Office of Internal

Affairs, reports to Congress, and discipline. 12

Enacted in 2024, the Federal Prison Oversight Act,

Pub. L. No. 118-71, 138 Stat. 1492 (2024), to be codified at

§ 1001(3); U.S. Gov’t Accountability Office, GAO-25-107339, Bureau

of Prisons: Strategic Approach Needed to Prevent and Address Employee Misconduct 7-12, 40-42 (Sept. 29, 2025), https://www.gao.gov/

products/gao-25-107339; U.S. Dep’t of Justice, Office of Inspector

Gen., Evaluation & Inspections Div. Rep. 23-065, Limited-Scope

Review of the Federal Bureau of Prisons’ Strategies to Identify,

Communicate, and Remedy Operational Issues 15-18 (May 2023),

https://oig.justice.gov/reports/limited-scope-review-federal-bureauprisons-strategies-identify-communicate-and-remedy; U.S. Dep’t of

Justice, Fed. Bureau of Prisons, Program Statement No. 3711.01,

Employee and Labor Management Relations 11-14 (Jun. 28, 2017),

https://www.bop.gov/policy/progstat/3711.01.pdf (discipline procedures).

5 U.S.C. § 413(e), directs OIG to inspect federal-prison

medical care. Id. at 1496-1497 (§ 413(e)(2)(B)(viii)). It also

provides for an Ombudsman to investigate inmate “complaint[s]” regarding the “health, safety, welfare, or rights

of incarcerated people”—including “denial or delay of necessary medical treatment”—and recommend action. Id. at

1496-1497, 1499 (§ 413(e)(3)(A)(i), (3)(C), (4)(C)(ii)(II)).

BOP may pursue “disciplinary” or other corrective measures. Id. at 1497-1498 (§ 413(e)(3)(D)(i), (iii)). The Ombudsman must report uncorrected problems to Congress

and the Attorney General. Id. at 1497 (§ 413(e)(3)(D)(ii)). 13

Those statutorily prescribed investigatory and grievance processes—all postdating Carlson—are special factors that militate against a Bivens remedy. Egbert, 596

U.S. at 493, 497-498. It is no answer that such remedies

may seem less effective than damages actions. Ibid. And

Congress’s choice to address prisoner rights and health

through agency and congressional oversight—rather than

“a statutory cause of action for money damages”—is itself

a special factor. Goldey, 606 U.S. at 944. Those special

factors, too, render the context new.

2. The Ninth Circuit Erred in Relegating Alter-

native Remedial Structures to Bivens Step Two

The Ninth Circuit did not deny that Carlson never

considered the ARP’s alternative remedial structure. But

it dismissed the ARP as irrelevant. Such “alternative remedial structures,” it declared, “can be one ‘special factor,’

to be considered at the second step of the Bivens analysis.”

Pet.App.15a; see Schwartz v. Miller, 153 F.4th 918, 930

(9th Cir. 2025) (Ninth Circuit “treat[s] the ARP as a speThe Oversight Act takes effect following appropriations, § 2(b), 138

Stat. 1501, which have not yet been enacted. That underscores Congress’s reticulated, resource-attentive approach in this field.

cial factor only at step two”). Alternative remedies “bear

little significance at step one,” the panel majority urged,

because “[s]tep one focuses on the alleged violation” while

“[s]tep two * * * focuses on remedies.” Pet.App.80a-81a.

That defies precedent and logic alike. Ziglar held that

“potential special factors that were not considered in

previous Bivens cases” “present a new context for Bivens

purposes.” 582 U.S. at 148; id. at 139-140. Ziglar then

specifically held that “alternative remedies” “not considered in the Court’s previous Bivens cases” were a “meaningful” difference that meant the case before it sought “to

extend Carlson to a new context.” Id. at 147-149. Ziglar

could not be clearer that previously unconsidered alternative remedies render the context “new.” It also forecloses

any suggestion that alternative remedies are insufficiently

“meaningfu[l]” at step one. Pet.App.15a. Indeed, “alternative remedies” “independently foreclose a Bivens action.”

Egbert, 596 U.S. at 497.

Ziglar’s “uncertainty regarding the available alternative remedies,” Pet.App.81a n.2, underscores the point.

Ziglar held that even “potential special factors” present

“a new context” at step one; step two then considers

whether those factors actually exist and foreclose a

Bivens remedy. 582 U.S. at 148-149 (emphasis added).

That nuance is immaterial here, because alternative remedial structures plainly exist (and foreclose a Bivens

remedy). But it reinforces just how “easily satisfied” the

new-context inquiry is. Id. at 149.

Nor did Egbert “clarif [y]” that alternative remedial

structures should be relegated to step two. Pet.App.15a.

Quite the contrary: Egbert explained that the two steps

“often resolve to a single question” because “a new context

arises when there are ‘potential special factors that

previous Bivens cases did not consider.’ ” 596 U.S. at 492.

That forecloses the panel majority’s purported sharp “difference between step one and step two.” Pet.App.80a.

The theory fails regardless. Step one is not limited to

considering “the alleged violation” while disregarding

“remedies.” Pet.App.80a. Step one considers “the risk of

disruptive intrusion” on other branches, Ziglar, 582 U.S.

at 140—i.e., the impact of judicial remedies. And, of

course, step one considers “potential special factors that

previous Bivens cases did not consider,” ibid.—and “alternative remedial structures” are a quintessential “special

factor,” Egbert, 596 U.S. at 493.

Confining a special factor to step two makes no sense.

Special factors are reasons to think Congress may be better equipped to weigh the costs and benefits of a damages

remedy—and, consequently, why a judicially created

damages remedy is unavailable. Egbert, 596 U.S. at 492.

Refusing to consider a special factor, based on some

artificial distinction between steps one and two, would

allow courts to authorize a damages remedy even though

Congress is better equipped to make that call. That is

irreconcilable with affording “utmost deference to Congress’ preeminent authority in this area.” Ibid.

3. The ARP Cannot Be Dismissed Based on Its

Date of Creation

The panel majority’s protest that the ARP “existed

when the Supreme Court decided Carlson,” Pet.App.78a79a, likewise fails. The question is whether the ARP was

“considered ” in Carlson. Ziglar, 582 U.S. at 148. It was

not. No party raised it. The Court never mentioned it.

“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).

The ARP, moreover, became effective in late 1979—

mere months before Carlson issued and four years after

the inmate there died. See 44 Fed. Reg. 62,250; Green, 581

F.2d at 671. Neither he nor the Carlson plaintiff (the

decedent’s mother) could have used it. Pet.App.98a. The

availability here of a remedy unavailable in Carlson is a

meaningful difference. Ziglar makes that clear: It held

the possibility of “an injunction”—a remedy extant at the

time of Carlson but unavailable there—presented a new

context from Carlson. 582 U.S. at 148.

Finally, Carlson did not consider the relevance of the

ARP in combination with later-enacted legislation like the

PLRA, PATRIOT Act, and Oversight Act. See pp. 33-35,

supra. Such post-Carlson “legislative action suggesting

that Congress does not want a damages remedy is itself a

factor counseling hesitation” that Carlson never considered. Ziglar, 582 U.S. at 148 (emphasis added).

4. Watanabe’s Reliance on Carlson’s Reasoning

Fails

Watanabe invokes Carlson’s discussion of a different

remedy, the Federal Tort Claims Act (FTCA). Br.in.Opp.1617. Carlson concluded the FTCA should not foreclose a

Bivens remedy because Congress had not “explicitly

declared” it an “equally effective” “substitute for recovery

directly under the Constitution.” 446 U.S. at 18-19; id. at

19-23. Watanabe urges the “same rationales * * * apply

with even greater force to the ARP.” Br.in.Opp.17.

But the two are quite different, not least because the

ARP offers prospective relief while the FTCA allows only

damages. Besides, Carlson’s FTCA analysis “carries little

weight because it predates [this Court’s] current approach

to implied causes of action and diverges from the prevailing framework.” Egbert, 596 U.S. at 500-501. Plaintiffs

seeking Bivens remedies must “satisf [y] the ‘analytic

framework’ prescribed by the last four decades of intervening case law.” Id. at 501. Under that framework, an

express congressional declaration is unnecessary, and it

does not “matter that ‘existing remedies do not provide

complete relief.’ ” Id. at 493, 501. Instead, the existence of

“ ‘an alternative remedial structure’ ” for “aggrieved federal prisoners” is a special factor barring a Bivens remedy

“even if such ‘procedures are “not as effective as an individual damages remedy.” ’ ” Goldey, 606 U.S. at 944-945.

D. Watanabe’s Bivens Claim Cannot Proceed

Watanabe correctly concedes that, if his claim presents

a new context, it fails at Bivens step two. Pet.App.96a n.1;

C.A. Oral Arg. 6:05-6:12 (http://youtu.be/sU-8uFCTxs8).

This Court thus need go no further. But the step-two

analysis underscores the Ninth Circuit’s error.

At step two, “a Bivens remedy is unavailable if there are

‘special factors’ indicating that the Judiciary is at least

arguably less equipped than Congress to ‘weigh the costs

and benefits of allowing a damages action.’ ” Egbert, 596

U.S. at 492. Multiple special factors preclude Bivens’s

extension here. As the Court has recognized, “ ‘an alternative remedial structure’ already exists for aggrieved

federal prisoners.” Goldey, 606 U.S. at 944-945; pp. 32-35,

supra. “ ‘[T]hat alone,’ like any special factor,” “foreclose[s] a Bivens action here.” Egbert, 596 U.S. at 493, 497.

So does the fact that “Congress has actively legislated in

the area of prisoner litigation but has not enacted a

statutory cause of action for money damages.” Goldey,

606 U.S. at 944; pp. 33-35, supra. And so does the risk that

applying Bivens here “could have negative systemic

consequences for prison officials and the ‘inordinately

difficult undertaking’ of running a prison.” Goldey, 606

U.S. at 944; pp. 28-29, supra.

Watanabe’s concession that special factors defeat his

claim at step two confirms that this case presents a new

context at step one. The two steps “often resolve to a

single question: whether there is any reason to think that

Congress might be better equipped to create a damages

remedy.” Egbert, 596 U.S. at 492 (emphasis added). Here,

alternative remedial structures, Congress’s activity in the

field, and systemic impacts are all reasons to think Congress is better suited to the task. Carlson considered none

of them. Whether viewed as one step or two, the bottom

line is clear: Watanabe seeks to extend Bivens to a new

context, and that he cannot do.

II. BIVENS SHOULD BE OVERRULED

The Ninth Circuit erred in recognizing a Bivens cause

of action here for a more fundamental reason. Appreciating the grave conflict between Bivens and the separation

of powers, this Court has condemned recognition of Bivens remedies as “ ‘a disfavored judicial activity.’ ” Egbert,

596 U.S. at 491. It has repudiated Bivens’s reasoning. It

has consistently rejected Bivens suits, in 13 cases over 45

years. And it has explained that, if “called to decide Bivens today, we would decline to discover any implied causes

of action in the Constitution.” Id. at 502. That this Court

is now called upon to reject a Bivens suit for a 14th time—

doubtless to be followed by numbers 15, 16, 17, and more—

suggests it is finally time to retire Bivens once and for all.

A. Congress, Not the Judiciary, Creates Causes of

Action

“[C]reating a cause of action is a legislative endeavor,”

Egbert, 596 U.S. at 491, and the Constitution vests “[a]ll

legislative Powers” in “Congress,” U.S. Const. art. I, § 1.

Accordingly, “a federal court’s authority to recognize a

damages remedy must rest at bottom on a statute enacted

by Congress.” Hernández, 589 U.S. at 101. But “no stat-

ute expressly creates a Bivens remedy.” Ibid. That forecloses judicial recognition of such a remedy.

Bivens, Davis, and Carlson saw things differently.

They saw the absence of a congressionally authorized

damages remedy not as an obstacle, but an invitation.

They embraced judicial creation of damages remedies

that, in their view, would effectuate the purposes of the

provisions at issue. Bivens, 403 U.S. at 396. And they

candidly acknowledged that, in doing so, courts would

consider a “range of policy considerations” “at least as

broad as * * * a legislature would consider.” Id. at 407

(Harlan, J., concurring in judgment).

Since then, however, the Court has come “to appreciate

more fully the tension between this practice and the Constitution’s separation of legislative and judicial power.”

Hernández, 589 U.S. at 100. Creating a damages remedy

assigns new private rights and liabilities, and requires

balancing myriad policy considerations. It is an exercise

of legislative power, not judicial. See ibid.; Egbert, 596

U.S. at 491; id. at 502-503 (Gorsuch, J., concurring in

judgment). It is, at the very least, a task “Congress is ‘far

more competent than the Judiciary’ ” to perform. Id. at

491 (opinion of the Court).

This Court’s test at bottom asks “whether there is any

reason to think that Congress might be better equipped to

create a damages remedy.” Egbert, 596 U.S. at 492. The

answer is always “yes.” Congress is always better

equipped for the “legislative endeavor” of creating a damages remedy, because it is a legislature. Id. at 491. It may

be time for the Court to forthrightly recognize that fact.

Federal courts’ putative “narrow authority” to recognize

implied damages remedies under the Constitution “is

more accurately described as nonexistent.” Cisco Systems, Inc. v. Doe, 146 S. Ct. 1882, 1886 (2026). Here, as

elsewhere, “the power to create causes of action belongs

to Congress.” Id. at 1890.

Bivens has been gutted by later precedent. Leaving its

husk on the books serves no one. It offers false hope for

plaintiffs who almost never prevail. It imposes burdens on

defendants and courts. And it absolves Congress of its

responsibility for addressing the issue. See Mohamed v.

Jones, 100 F.4th 1214, 1239-1240 (10th Cir. 2024) (Tymkovich, J., dissenting). So long as the zombie of Bivens

wanders this Court’s jurisprudence, Congress has little

reason to consider the issue in earnest. Ibid.

B. Bivens Has Earned Its Retirement

Every stare decisis factor—quality of reasoning and

consistency with other cases; workability; and reliance—

“counsels in favor of letting [Bivens] go.” Trump v.

Slaughter, 146 S. Ct. 2283, 2302 (2026).

1. This Court has “repudiated the foundation of the

Bivens doctrine.” Hernández, 589 U.S. at 117 (Thomas,

J., concurring); see Pet.App.112a-116a (Collins, J., dissenting from denial) (describing “wholesale evisceration of

Carlson’s reasoning”). Their “premises” fatally “undermined * * * at every turn,” Bivens, Davis, and Carlson are

“far out of step with [the Court’s] cases.” Slaughter, 146

S. Ct. at 2302-2303.

Bivens and its progeny drew from the view, exemplified

by J.I. Case Co. v. Borak, 377 U.S. 426 (1964), that courts

should create damages remedies to effectuate the perceived purposes of statutes lacking such remedies. Bivens, 403 U.S. at 397 (citing Borak); id. at 402 & n.4 (Harlan, J., concurring in judgment) (citing Borak); Ziglar, 582

U.S. at 131-132. But the Court has now “abandoned” that

practice as inconsistent with the separation of powers.

Sandoval, 532 U.S. at 287 (repudiating Borak); see Her-

nández, 589 U.S. at 100; id. at 115-117 (Thomas, J., concurring). Just last Term, the Court “close[d] the door” on

judicially created causes of action under the Alien Tort

Statute, because “the power to create causes of action

belongs to Congress.” Cisco, 146 S. Ct. at 1886, 1890-1892.

Bivens also assumed the “general grant of [federalquestion] jurisdiction” authorized federal courts to create

remedies “to make good the wrong done.” 403 U.S. at 396

(opinion of the Court), 405 (Harlan, J., concurring in

judgment). But the Court now holds “[t]he vesting of jurisdiction in the federal courts does not * * * give rise to

authority to formulate federal common law,” including “to

create * * * a cause of action.” Texas Industries, Inc. v.

Radcliff Materials, Inc., 451 U.S. 630, 638, 640-641 (1981);

see Hernández, 589 U.S. at 101; Cisco, 146 S. Ct. at 1889.

Bivens saw the absence of an “explicit congressional declaration” that plaintiffs “may not recover money damages”

as justifying judicially created remedies. 403 U.S. at 397;

see Davis, 442 U.S. at 246-247; Carlson, 446 U.S. at 19.

But the Court now holds that “ ‘congressional inaction,’ ”

including “fail[ure] to provide a damages remedy,” militates against judicially created remedies. Egbert, 596 U.S.

at 501 (quoting Schweiker, 487 U.S. at 423); Ziglar, 582

U.S. at 143-144.

Bivens insisted only an “equally effective” statutory

remedy could foreclose a judicially created one. 403 U.S.

at 397; see Davis, 442 U.S. at 248; Carlson, 446 U.S. at 1923. Carlson even declared the FTCA’s damages remedy

“not a sufficient protector of the citizens’ constitutional

rights” because it lacks adornments like “punitive damages.” 446 U.S. at 22-23. But the Court now holds that

alternative remedies foreclose a Bivens remedy “even if ”

they are “ ‘not as effective as an individual damages reme-

dy.’ ” Egbert, 596 U.S. at 498 (quoting Bush, 462 U.S. at

372); see Hernández, 589 U.S. at 113-114.

Watanabe defends Carlson as a “federal common-law

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

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

and its progeny “to the work of a common-law court.”

Hernández, 589 U.S. at 100. “With the demise of federal

general common law, a federal court’s authority to recognize a damages remedy must rest at bottom on a statute”—which is absent here. Id. at 101.

From the Framing until 1971, courts did not infer damages remedies from the Constitution. See pp. 4-5, supra.

The Court recounted that history just a few years before

Bivens in Wheeldin v. Wheeler, and concluded it was “not

for [the Court] to fill any hiatus Congress has left in this

area.” 373 U.S. 647, 652 (1963). But eight years later

Bivens did precisely that, scarcely mentioning Wheeldin.

403 U.S. at 396-397.

Since then, Bivens’s foundations—never sound—have

crumbled. “To persist in [Bivens] would require [the Court]

to depart from almost every case on the subject [it has]

decided [before and] since.” Slaughter, 146 S. Ct. at 2303.

2. Bivens has proved unworkable. While the Court’s

current framework reins in some of Bivens’s mischief,

separation-of-powers problems remain. Most fundamentally, the framework contemplates that courts might

create damages remedies Congress has not authorized,

when in fact courts cannot (and certainly should not) do so.

The Court’s Bivens tests still require courts to undertake legislative judgments foreign to the judicial role.

Courts must decide whether cases are “meaningfully” different from Bivens, Davis, and Carlson and whether there

is reason to think Congress might be better suited to

weigh the costs and benefits of a damages remedy. Both

questions require courts to evaluate myriad “policy considerations”: economic, fiscal, operational, even moral.

Egbert, 596 U.S. at 491. But that is something “ ‘a legislature would’ ”—and should—do. Ibid. While those questions are asked from Congress’s perspective (e.g., whether

Congress could think a difference meaningful), that still

puts courts to imagine a legislative view. And the

necessity of doing so reinforces that all these questions

should be answered by Congress—not speculating courts.

“To atone for Bivens, it seems [courts] continue repeating

its most basic mistake.” Id. at 504 (Gorsuch, J., concurring

in judgment).

Lower courts have struggled. For example, the “newcontext inquiry” is supposed to be “easily satisfied.”

Ziglar, 582 U.S. at 149. Yet “multiple deep circuit splits”

have arisen over how the test applies to such basic things

as alternative remedies and a claim’s nature and severity.

Pet.App.91a, 103a-109a (R. Nelson, J., dissenting from

denial); Pet.App.86a-89a (Paez & Koh, JJ., respecting

denial); Pet.15-22. The result is “confusion,” Pet.App.111a

(Collins, J., dissenting from denial), and a “flood of inconsistent case law across and within circuits.” Watkins, 144

F.4th at 951 (opinion of Kirsch, J.).

That confusion drives home Bivens’s unworkability:

While the Court has tried to confine Bivens, Davis, and

Carlson to their respective contexts, jurists cannot agree

what those contexts are. As a result, this Court has

repeatedly had to put newly summoned Bivens genies

back in the bottle. Rather than try still further refinement

in still further cases, the Court may wish to stopper the

Bivens bottle for good.

3. No reliance interests justify Bivens’s retention.

“Any such interests would belong to future plaintiffs—

who surely are not relying on the remote possibility that

U.S. courts would” allow a Bivens remedy “if they were

someday injured and sought one.” Cisco, 146 S. Ct. at

1891-1892. Nor would reliance be justified. Repeated disclaimers that Bivens remedies are a disfavored judicial

activity have put plaintiffs “on notice for years regarding

this Court’s misgivings about” Bivens.

Janus v.

AFSCME, 585 U.S. 878, 927 (2018).

Besides, other remedies exist. The FTCA allows recovery “against the United States” for property harm, “personal injury,” and “death” caused by federal employees’

“negligent or wrongful” conduct. 28 U.S.C. §§ 1346(b)(1),

2674. That includes “medical malpractice” negligence like

in Carlson. Levin v. United States, 568 U.S. 503, 512-513

(2013); see also Minneci v. Pollard, 565 U.S. 118, 128-130

(2012) (discussing relevant tort law). It also includes

intentional torts by law-enforcement officers like in Bivens—indeed, Congress amended the FTCA to reach such

conduct shortly after Bivens. See Pub. L. No. 93-253, § 2,

88 Stat. 50 (1974), codified at 28 U.S.C. § 2680(h). 14 Congress has provided congressional staffers remedies for

discrimination like in Davis. See Congressional Accountability Act of 1995, Pub. L. No. 104-1, 109 Stat. 3, codified

at 2 U.S.C. §§ 1302(a), 1311(a)-(b). And injunctions (which

enjoy a “long history” that Bivens remedies lack, Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327

(2015)) may be available in many cases.

Watanabe urges that “Congress” relied on Bivens in

enacting the Westfall Act. Br.in.Opp.20-21. That Act

Carlson dismissed the FTCA based on legislative history and a view

that it was not “equally effective.” 446 U.S. at 19-23. Neither can

justify a damages remedy Congress has not authorized. Egbert, 596

U.S. at 498; FS Credit Opportunities Corp. v. Saba Capital Master

Fund, Ltd., 146 S. Ct. 1546, 1557 (2026).

generally makes the FTCA’s “remedy against the United

States” “exclusive” of suits against federal employees

(substituting the United States as defendant), without

extending that exclusivity to constitutional claims. 28

U.S.C. § 2679(b)(1), (2)(A), (d). But “the provision simply

left Bivens where it found it”—in the hands of courts.

Hernández, 589 U.S. at 111 n.9. 15

Insofar as “Congress has relied upon” Bivens, “that is

precisely the problem.” Slaughter, 146 S. Ct. at 2303.

When courts assert legislative power, that gives Congress

less incentive to legislate (or an excuse not to). That may

explain the many failed bills proposing damages remedies

akin (or not) to Bivens. See pp. 11-12, nn.1-6, supra. Getting

courts out of the Bivens business will return full responsibility—and accountability—where it belongs: Congress.

As long as Bivens survives, its distortions will persist.

While most Bivens claims fail, lower courts erroneously

allow some—as this Court’s repeated reversals illustrate.

E.g., Ziglar, 582 U.S. 120; Egbert, 596 U.S. 482; Goldey,

606 U.S. 942. Even ultimately-unsuccessful Bivens suits

have “stark and personal” consequences for “line federal

employees and their families”: They threaten college

funds and mortgage applications; impose years of litigation burdens; and inflict reputational harm. Mary

Mason, Reckoning with Bivens, Lawfare (Nov. 12, 2025),

https://www.lawfaremedia.org/article/reckoning-with-bivens.

While indemnification is common, it is not guaranteed.

Ibid.; see 28 C.F.R. § 50.15(c). If indemnification does

The Westfall Act may reflect a (mistaken) concern that Congress

could not bar individual liability for constitutional violations, given the

Court’s suggestion that the Constitution itself imposes such liability.

See Carlson, 446 U.S. at 33 n.2 (Rehnquist, J., dissenting); Minneci,

565 U.S. at 131 (Scalia, J., concurring). If so, that underscores the

distortion Bivens has wrought.

occur, it presumably lessens the “deterrent” of “personal

financial liability.” Carlson, 446 U.S. at 21. And if indemnification is denied, even successful plaintiffs may receive

nothing from judgment-proof defendants. No one is wellserved.

* * *

Bivens has become an “empty promise”—a disavowed

doctrine that haunts the casebooks. Edwards v. Vannoy,

593 U.S. 255, 272 (2021). Its retention “perpetuat[es] what

has become an illusory” remedy that “misleads litigants

and judges, and needlessly expends the scarce resources

of [counsel] and courts.” Id. at 275. “In fairness to future

litigants and [the] lower court[s],” it may be time to stop

holding out the “false hope” of Bivens and have Congress

reassume its rightful role in this field. Egbert, 596 U.S. at

504 (Gorsuch, J., concurring in judgment).

CONCLUSION

The judgment should be reversed.

Respectfully submitted.

JEFFREY A. LAMKEN

Counsel of Record

LUCAS M. WALKER

ERIC R. NITZ

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

August 2026

APPENDIX

RELEVANT CONSTITUTIONAL, STATUTORY,

AND REGULATORY PROVISIONS

APPENDIX – TABLE OF CONTENTS

Page

U.S. Const. amend. VIII ............................................ 1a

18 U.S.C. § 3626 .......................................................... 1a

42 U.S.C. § 1997e......................................................... 3a

Uniting and Strengthening America by

Providing Appropriate Tools Required

to Intercept and Obstruct Terrorism

(USA PATRIOT ACT) Act of 2001, Pub. L.

No. 107-56, § 1001, 115 Stat. 391 (2001) ................ 4a

Federal Prison Oversight Act, Pub. L.

No. 118-71, § 2, 138 Stat. 1492 (2024),

to be codified at 5 U.S.C. § 413(e)......................... 5a

Bureau of Prisons Administrative Remedy

Program, 28 C.F.R. §§ 542.10-542.19 ................... 17a

(i)

1. The Eighth Amendment to United States Constitution provides:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

18 U.S.C. § 3626 provides in relevant part as follows:

Appropriate remedies with respect to prison conditions

(a) REQUIREMENTS FOR RELIEF.—

(1) PROSPECTIVE RELIEF.— (A) Prospective relief

in any civil action with respect to prison conditions shall

extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least

intrusive means necessary to correct the violation of the

Federal right. The court shall give substantial weight

to any adverse impact on public safety or the operation

of a criminal justice system caused by the relief.

* * * * *

(b) TERMINATION OF RELIEF.—

(1) TERMINATION OF PROSPECTIVE RELIEF.—

(A) In any civil action with respect to prison conditions

in which prospective relief is ordered, such relief shall

be terminable upon the motion of any party or intervener—

(i) 2 years after the date the court granted or approved the prospective relief;

(ii) 1 year after the date the court has entered an

order denying termination of prospective relief under this paragraph; or

(iii) in the case of an order issued on or before the

date of enactment of the Prison Litigation Reform

Act, 2 years after such date of enactment.

* * * * *

(e) PROCEDURE FOR MOTIONS AFFECTING PROSPECTIVE RELIEF.—

(1) GENERALLY.—The court shall promptly rule on

any motion to modify or terminate prospective relief in

a civil action with respect to prison conditions. Mandamus shall lie to remedy any failure to issue a prompt

ruling on such a motion.

(2) AUTOMATIC STAY.—Any motion to modify or terminate prospective relief made under subsection (b)

shall operate as a stay during the period—

(A)(i) beginning on the 30th day after such motion is filed, in the case of a motion made under paragraph (1) or (2) of subsection (b); or

(ii) beginning on the 180th day after such motion

is filed, in the case of a motion made under any other

law; and

(B) ending on the date the court enters a final order ruling on the motion.

(3) POSTPONEMENT OF AUTOMATIC STAY.—The court

may postpone the effective date of an automatic stay

specified in subsection (e)(2)(A) for not more than 60

days for good cause. No postponement shall be permissible because of general congestion of the court’s calendar.

(4) ORDER BLOCKING THE AUTOMATIC STAY.—Any

order staying, suspending, delaying, or barring the op-

eration of the automatic stay described in paragraph (2)

(other than an order to postpone the effective date of

the automatic stay under paragraph (3)) shall be

treated as an order refusing to dissolve or modify an injunction and shall be appealable pursuant to section

1292(a)(1) of title 28, United States Code, regardless of

how the order is styled or whether the order is termed

a preliminary or a final ruling.

* * * * *

3. 42 U.S.C. § 1997e provides in relevant part as follows:

§ 1997e. Suits by prisoners

(a) Applicability of administrative remedies

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal

law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.

* * * * *

(f) Hearings

(1) To the extent practicable, in any action brought

with respect to prison conditions in Federal court pursuant to section 1983 of this title, or any other Federal law,

by a prisoner confined in any jail, prison, or other correctional facility, pretrial proceedings in which the prisoner’s

participation is required or permitted shall be conducted

by telephone, video conference, or other telecommunications technology without removing the prisoner from the

facility in which the prisoner is confined.

(2) Subject to the agreement of the official of the Federal, State, or local unit of government with custody over

the prisoner, hearings may be conducted at the facility in

which the prisoner is confined. To the extent practicable,

the court shall allow counsel to participate by telephone,

video conference, or other communications technology in

any hearing held at the facility.

* * * * *

4. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct

Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No.

107-56, § 1001, 115 Stat. 391 (2001), provides:

Sec. 1001. Review of the Department of Justice.

The Inspector General of the Department of Justice

shall designate one official who shall—

(1) review information and receive complaints alleging

abuses of civil rights and civil liberties by employees and

officials of the Department of Justice;

(2) make public through the Internet, radio, television,

and newspaper advertisements information on the responsibilities and functions of, and how to contact, the official;

and

(3) submit to the Committee on the Judiciary of the

House of Representatives and the Committee on the Judiciary of the Senate on a semi-annual basis a report on the

implementation of this subsection and detailing any abuses

described in paragraph (1), including a description of the

use of funds appropriations used to carry out this subsection.

5. The Federal Prison Oversight Act, Pub. L. No.

118-71, § 2, 138 Stat. 1492 (2024), to be codified at 5 U.S.C.

§ 413(e), provides in relevant part as follows:

Sec. 2. Creation of an Inspections Regime for the

Bureau of Prisons.

(a) IN GENERAL.—Section 413 of title 5, United States

Code, is amended by adding at the end the following:

“(e) INSPECTIONS REGIME.—

“(1) DEFINITIONS.—In this subsection:

* * * * *

‘‘(C) COVERED FACILITY.—The term ‘covered

facility’—

‘‘(i) means a correctional facility operated

by the Bureau; and

‘‘(ii) does not include a post-incarceration

residential re-entry center.

* * * * *

‘‘(2) INSPECTIONS OF COVERED FACILITIES BY THE

INSPECTOR GENERAL.—

‘‘(A) ESTABLISHMENT OF INSPECTIONS REGIME.—

‘‘(i) IN GENERAL.—The Inspector General

shall conduct periodic inspections of covered

facilities pursuant to the requirements of this

subsection.

‘‘(ii) ACCESS TO COVERED FACILITIES.—

The Attorney General shall ensure that the Inspector General has access to—

‘‘(I) any covered facility (including the

incarcerated people, detainees, staff,

bargaining unit representative organization) in accordance with paragraph (4); and

‘‘(II) any other information that the

Inspector General determines is necessary

to carry out the provisions of this subsection.

‘‘(iii) NOTICE OF INSPECTIONS.—An inspection of a covered facility under this subsection may be announced or unannounced.

‘‘(iv) COMMUNITY INPUT.—In developing

the inspections regime under this subsection,

the Inspector General is encouraged to consult

formerly incarcerated people, family or representatives of incarcerated people, and community advocates.

‘‘(B) INSPECTION CRITERIA.—An inspection of

a covered facility under this subsection may include

an assessment of the following:

‘‘(i) The policies, procedures, and administrative guidance of the facility.

‘‘(ii) The conditions of confinement.

‘‘(iii) Working conditions for staff.

‘‘(iv) The availability of evidence-based recidivism reduction programs and productive

activities, as such terms are defined in section

3635 of title 18, and the application of earned

time credits pursuant to section 3632 of title 18.

‘‘(v) The policies and procedures relating

to visitation.

‘‘(vi) The policies and practices relating to

classification and housing.

‘‘(vii) The policies and practices relating to

the use of single-cell confinement, administrative segregation, and other forms of restrictive

housing.

‘‘(viii) The medical facilities and medical

and mental health care, programs, procedures,

and policies, including the number and qualifications of medical and mental health staff and

the availability of sex-specific and trauma-responsive care for incarcerated people.

‘‘(ix) Medical services and mental health

resources for staff.

‘‘(x) Lockdowns at the facility.

‘‘(xi) Credible allegations of incidents involving excessive use of force, completed, attempted, or threatened violence, including sexual abuse, or misconduct committed against incarcerated people.

‘‘(xii) Credible allegations of incidents involving completed, attempted, or threatened

violence, including sexual violence or sexual

abuse, committed against staff.

‘‘(xiii) Adequacy of staffing at the covered

facility, including the number and job assignments of staff, the ratio of staff to inmates at

the facility, the staff position vacancy rate at

the facility, and the use of overtime, mandatory

overtime, and augmentation.

‘‘(xiv) Deaths or serious injuries of incarcerated people or staff that occurred at the facility.

‘‘(xv) The existence of contraband that

jeopardizes the health or safety of incarcerated

people or staff, including incident reports, referrals for criminal prosecution, and confirmed

prosecutions.

‘‘(xvi) Access of incarcerated people to—

‘‘(I) legal counsel, including confidential meetings and communications;

‘‘(II) discovery and other case-related

legal materials; and

‘‘(III) the law library at the covered

facility.

‘‘(xvii) Any aspect of the operation of the

covered facility that the Inspector General determines to be necessary over the course of an

inspection.

* * * * *

‘‘(D) REPORT.—

‘‘(i) IN GENERAL.—Not later than 6 months

after the completion of an inspection of a covered facility under this subsection, or a group

of inspections that assess the same or similar

issues at more than 1 facility, the Inspector

General shall submit a final copy of the report

to the Attorney General, the appropriate congressional committees, employee representative organizations, and the public, that addresses 1 or more of the following topics:

‘‘(I) A characterization of the conditions of confinement and working conditions, including a summary of the

inspection criteria reviewed under clauses

(ii) and (iii) of subparagraph (B).

‘‘(II) Recommendations made to the

covered facility to improve safety and conditions within the facility, including recommendations regarding staffing.

‘‘(III) A recommended timeline for

the next inspection and assessment, which

shall not limit the authority of the Inspector General to perform additional inspections and assessments, announced or unannounced.

‘‘(IV) Any other issues or matters

identified during the inspection of the facility or facilities.

* * * * *

‘‘(F) BUREAU RESPONSE TO REPORT.—

‘‘(i) IN GENERAL.—Not later than 60 days

after the date on which the Inspector General

issues a report under subparagraph (D), the

Bureau shall respond in writing to the inspection report, which shall include a corrective action plan.

‘‘(ii) PUBLIC AVAILABILITY.—Each response

and action plan described in clause (i) shall be

made available to the public on the website of

the Inspector General.

‘‘(iii) COMPLIANCE WITH CORRECTIVE ACTION PLAN.—The Inspector General may con-

duct additional inspections or investigations,

announced or unannounced, to monitor the

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compliance of the Bureau with a corrective action plan described in clause (i).

* * * * *

‘‘(3) OMBUDSMAN.—

‘‘(A) IN GENERAL.—Not later than 1 year after

the date of enactment of the Federal Prison Oversight Act, the Attorney General shall establish in

the Department of Justice an Ombudsman who

may—

‘‘(i) receive a complaint from an incarcerated person, a family advocate, a representative of an incarcerated person, staff, a representative of staff, a Member of Congress, or a

member of the judicial branch of the Federal

Government regarding issues that may adversely affect the health, safety, welfare, or

rights of incarcerated people or staff, including—

‘‘(I) abuse or neglect;

‘‘(II) the conditions of confinement,

including the availability of health care;

‘‘(III) working conditions of staff;

‘‘(IV) decisions, administrative actions, or guidance of the Bureau, including

those relating to prison staffing;

‘‘(V) inaction or omissions by the Bureau, including failure to consider or respond to complaints or grievances by incarcerated people or staff promptly or appropriately;

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‘‘(VI) policies, rules, or procedures of

the Bureau, including gross mismanagement; and

‘‘(VII) alleged violations of non-criminal law by staff or incarcerated people that

may adversely affect the health, safety,

welfare, or rights of any person;

‘‘(ii) refer a complainant and others to appropriate resources or Federal agencies;

‘‘(iii) make inquiries and recommend actions to appropriate entities on behalf of a complainant, the Ombudsman, or others; and

‘‘(iv) decline to investigate or take any action with respect to any complaint and, in any

case in which the Ombudsman declines to investigate or take any action, shall notify the

complainant in writing of the decision not to investigate or take any action and the reasons for

the decision.

* * * * *

‘‘(C) DECISION ON THE MERITS OF A COMPLAINT.—At the conclusion of an investigation of a

complaint, the Ombudsman shall—

‘‘(i) render a decision on the merits of each

complaint;

‘‘(ii) communicate the decision to the complainant, if any, and to the Bureau; and

‘‘(iii) state the recommendations and reasoning of the Ombudsman if, in the opinion of

the Ombudsman, the Bureau or any employee

thereof should—

‘‘(I) consider the matter further;

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‘‘(II) modify or cancel any action;

‘‘(III) alter a rule, practice, or ruling;

‘‘(IV) explain in detail the administrative action in question; or

‘‘(V) rectify an omission.

‘‘(D) ACTIONS FOLLOWING A DECISION BY THE

OMBUDSMAN.—

‘‘(i) REQUEST FOR INFORMATION ABOUT

ACTIONS TAKEN.—If the Ombudsman so requests, the Bureau shall, within the time specified, respond to any inquiry or request for information from the Ombudsman and inform

the Ombudsman about any action taken on the

recommendations provided by the Ombudsman or the reasons for not complying with any

request for information or recommendations.

‘‘(ii) REPORTING

CONTINUING

IS-

SUES.—If the Ombudsman believes, based on

an investigation conducted by the Ombudsman, that there has been or continues to be a

significant health, safety, welfare, working

conditions, or rehabilitation issue, the Ombudsman shall report the finding to the Attorney

General and the appropriate congressional

committees.

‘‘(iii) MONITORING OF INTERNAL DISCIPLINARY ACTIONS OF THE BUREAU.—In the event

that the Bureau conducts an internal disciplinary investigation or review of 1 or more staff

members of the Bureau as a result of an investigation by the Ombudsman, the Ombudsman

may monitor the internal disciplinary action to

ensure a fair and objective process.

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‘‘(4) INSPECTOR GENERAL AND OMBUDSMAN ACCESS TO BUREAU OF PRISONS FACILITIES.—

‘‘(A) IN GENERAL.—

‘‘(i) ACCESS TO BUREAU FACILITIES.—Except as provided in clause (ii), upon demand, in

person or in writing and with or without prior

notice, the Inspector General and the Ombudsman shall be granted access to all Bureau facilities, which shall include—

‘‘(I) all areas that are used by incarcerated people, all areas that are accessible to incarcerated people, and access to

programs for incarcerated people at any

time of day; and

‘‘(II) the opportunity to—

‘‘(aa) conduct private and confidential interviews with any incarcerated person, staff, employee representative organization, or other person; and

‘‘(bb) communicate privately and

confidentially, both formally and informally, with incarcerated people or

staff by telephone, mail, electronic

communication, and in person, which

shall not be monitored or recorded

by or conducted in the presence of

staff.

‘‘(ii) EXCEPTION.—Clause (i) shall not apply in situations where the head of the covered

facility provides evidence to the Inspector General or the Ombudsman that there is risk of serious and immediate physical harm to visitors

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due to an ongoing event that requires restricting access to the facility.

* * * * *

‘‘(C) ACCESS TO DOCUMENTS.—

‘‘(i) IN GENERAL.—The Inspector General

and the Ombudsman have the right to access,

inspect, and copy all relevant information, records, or documents in the possession or control

of the Bureau that either the Inspector General or the Ombudsman considers necessary in

an inspection, investigation, or other activity,

and the Bureau shall assist the Inspector General and the Ombudsman in obtaining the necessary releases for those documents that are

specifically restricted or privileged for use by

the Bureau.

‘‘(ii) PRODUCTION OF RECORDS.—Following notification from the Inspector General or

the Ombudsman with a written demand for access to Bureau records, the Bureau shall provide access to the requested documentation in

a manner consistent with section 552a (commonly known as the ‘Privacy Act of 1974’)—

‘‘(I) not later than 30 business days after receipt of the written request; or

‘‘(II) in the case of records pertaining

to the death of an incarcerated person or

staff, threats of bodily harm including sexual or physical assaults, or the denial or delay of necessary medical treatment, not

later than 10 business days after receipt of

the written request, unless the Inspector

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General or the Ombudsman consents to an

extension of that time frame.

* * * * *

‘‘(6) FILING COMPLAINTS.—

‘‘(A) FILING COMPLAINTS ON BEHALF OF AN

INCARCERATED INDIVIDUAL.—

‘‘(i) ONLINE FORM.—The Ombudsman

shall create a secure online form to be made

available on the website of the Ombudsman

where the family advocates and representatives of incarcerated people can submit complaints and inquiries on issues identified in paragraph (3)(A)(i) on behalf of an individual incarcerated at a covered facility.

‘‘(ii) TELEPHONE HOTLINE.—The Ombudsman shall create a telephone hotline

through which family advocates and representatives of incarcerated people can call to file

complaints and inquiries on issues identified in

paragraph (3)(A)(i) on behalf of an individual

incarcerated at a covered facility.

‘‘(B) FILING COMPLAINTS BY AN INCARCERATED INDIVIDUAL.—

‘‘(i) INTERNAL PRIVATE SUBMISSION.—

The Bureau shall provide multiple internal

ways for incarcerated individuals in covered facilities to privately submit to the Ombudsman

complaints and inquiries on issues identified in

paragraph (3)(A)(i).

‘‘(ii) SUBMISSION VIA INDEPENDENT ENTITY.—The Bureau shall also provide not less

than 1 process for incarcerated individuals in

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covered facilities to submit complaints and inquiries on issues identified in paragraph

(3)(A)(i) to a public or private entity or office

that is not part of the Bureau and that is able

to receive and immediately forward complaints

and inquiries to the Ombudsman, allowing the

incarcerated individual to remain anonymous

upon request.

‘‘(C) DETERMINATION.—

‘‘(i) CONFIRMATION OF RECEIPT.—Not

later than 5 business days after submission of

a complaint or inquiry under subparagraph (A)

or (B), the Ombudsman shall confirm receipt.

‘‘(ii) DETERMINATION.—Not later than 15

business days after issuing the confirmation

under clause (i), the Ombudsman shall make a

determination as to whether any action is warranted and notify the complainant of the determination.

‘‘(iii) STATEMENT

REGARDING

DECI-

SION.—If the Ombudsman has determined ac-

tion is unwarranted under clause (ii), the Ombudsman shall provide a written statement explaining the decision to the complainant.

‘‘(D) PUBLIC EDUCATION.—The Ombudsman

shall coordinate with the Bureau to educate incarcerated people, representatives of incarcerated

people, and the public about the existence and functions of the Ombudsman.

‘‘(E) ADMINISTRATIVE EXHAUSTION.—Nothing in this paragraph shall be construed as a necessary administrative remedy required for

17a

exhaustion under section 7(a) of the Civil Rights of

Institutionalized Persons Act (42 U.S.C. 1997e(a)).

* * * * *

(b) EFFECTIVE DATE.—This Act, and the amendments

made by this Act, shall take effect on the date that is 90

days after the date on which appropriations are made

available to the Inspector General of the Department of

Justice and the Department of Justice for the specific purpose of carrying out the provisions of this Act and the

amendments made by this Act.

* * * * *

6. The Bureau of Prisons’ Administrative Remedy

Program, 28 C.F.R. §§ 542.10-542.19, provides in relevant

part as follows:

§ 542.10 Purpose and scope.

(a) Purpose. The purpose of the Administrative Remedy Program is to allow an inmate to seek formal review

of an issue relating to any aspect of his/her own confinement. An inmate may not submit a Request or Appeal on

behalf of another inmate.

(b) Scope. This Program applies to all inmates in institutions operated by the Bureau of Prisons, to inmates designated to contract Community Corrections Centers

(CCCs) under Bureau of Prisons responsibility, and to former inmates for issues that arose during their confinement. This Program does not apply to inmates confined in

other non-federal facilities.

* * * * *

§ 542.11 Responsibility.

(a) The Community Corrections Manager (CCM),

Warden, Regional Director, and General Counsel are

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responsible for the implementation and operation of the

Administrative Remedy Program at the Community Corrections Center (CCC), institution, regional and Central

Office levels, respectively, and shall:

(1) Establish procedures for receiving, recording, reviewing, investigating, and responding to Administrative

Remedy Requests (Requests) or Appeals (Appeals) submitted by an inmate;

(2) Acknowledge receipt of a Request or Appeal by returning a receipt to the inmate;

(3) Conduct an investigation into each Request or Appeal;

(4) Respond to and sign all Requests or Appeals filed

at their levels. At the regional level, signatory authority

may be delegated to the Deputy Regional Director. At the

Central Office level, signatory authority may be delegated

to the National Inmate Appeals Administrator. Signatory

authority extends to staff designated as acting in the capacities specified in this § 542.11, but may not be further

delegated without the written approval of the General

Counsel.

* * * * *

§ 542.13 Informal resolution.

(a) Informal resolution.

Except as provided in

§ 542.13(b), an inmate shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy. Each Warden shall establish procedures to allow for the informal resolution of

inmate complaints.

* * * * *

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§ 542.14 Initial filing.

(a) Submission. The deadline for completion of informal resolution and submission of a formal written Administrative Remedy Request, on the appropriate form (BP–

9), is 20 calendar days following the date on which the basis for the Request occurred.

* * * * *

(d) Exceptions to initial filing at institution—

(1) Sensitive issues. If the inmate reasonably believes the

issue is sensitive and the inmate’s safety or wellbeing

would be placed in danger if the Request became known

at the institution, the inmate may submit the Request directly to the appropriate Regional Director. The inmate

shall clearly mark ‘‘Sensitive’’ upon the Request and explain, in writing, the reason for not submitting the Request at the institution. If the Regional Administrative

Remedy Coordinator agrees that the Request is sensitive,

the Request shall be accepted. Otherwise, the Request

will not be accepted, and the inmate shall be advised in

writing of that determination, without a return of the Request. The inmate may pursue the matter by submitting

an Administrative Remedy Request locally to the Warden.

The Warden shall allow a reasonable extension of time for

such a resubmission.

* * * * *

§ 542.15 Appeals.

(a) Submission. An inmate who is not satisfied with

the Warden’s response may submit an Appeal on the appropriate form (BP–10) to the appropriate Regional Director within 20 calendar days of the date the Warden

signed the response. An inmate who is not satisfied with

the Regional Director’s response may submit an Appeal

on the appropriate form (BP–11) to the General Counsel

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within 30 calendar days of the date the Regional Director

signed the response. When the inmate demonstrates a

valid reason for delay, these time limits may be extended.

Valid reasons for delay include those situations described

in § 542.14(b) of this part. Appeal to the General Counsel

is the final administrative appeal.

* * * * *

§ 542.16 Assistance.

(a) An inmate may obtain assistance from another inmate or from institution staff in preparing a Request or an

Appeal. An inmate may also obtain assistance from outside sources, such as family members or attorneys. However, no person may submit a Request or Appeal on the

inmate’s behalf, and obtaining assistance will not be considered a valid reason for exceeding a time limit for submission unless the delay was caused by staff.

(b) Wardens shall ensure that assistance is available

for inmates who are illiterate, disabled, or who are not

functionally literate in English. Such assistance includes

provision of reasonable accommodation in order for an inmate with a disability to prepare and process a Request or

an Appeal.

* * * * *

§ 542.18 Response Time.

If accepted, a Request or Appeal is considered filed on

the date it is logged into the Administrative Remedy Index

as received. Once filed, response shall be made by the

Warden or CCM within 20 calendar days; by the Regional

Director within 30 calendar days; and by the General

Counsel within 40 calendar days. If the Request is determined to be of an emergency nature which threatens the

inmate’s immediate health or welfare, the Warden shall

respond not later than the third calendar day after filing.

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If the time period for response to a Request or Appeal is

insufficient to make an appropriate decision, the time for

response may be extended once by 20 days at the institution level, 30 days at the regional level, or 20 days at the

Central Office level. Staff shall inform the inmate of this

extension in writing. Staff shall respond in writing to all

filed Requests or Appeals. If the inmate does not receive

a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.

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.