Amicus Curiae Brief — Francis Nielsen, Petitioner v. Kekai Watanabe

No. 25-417

IN THE

Supreme Court of the United States

————

FRANCIS NIELSEN,

v.

Petitioner,

KEKAI WATANABE,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF OF AMICUS CURIAE

ELAINE MITTLEMAN

IN SUPPORT OF PETITIONER

————

ELAINE MITTLEMAN

Counsel of Record

300 Main Street

Suite 2A

Evansville, IN 47708

(202) 297-2338

elainemittleman@msn.com

Counsel for Amicus Curiae

August 21, 2026

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES.........................................ii

INTEREST OF AMICUS CURIAE..............................1

SUMMARY OF ARGUMENT......................................2

ARGUMENT.................................................................4

I.

Congress can write statutes to create

remedies for federal employees. .......................4

II.

The Bivens doctrine is unworkable. .................6

III.

Bivens does not afford a remedy for federal

employees. .......................................................10

CONCLUSION ..........................................................14

(i)

ii

TABLE OF AUTHORITIES

Cases

Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics,

403 U.S. 388 (1971)........................................1-12, 14

Bush v. Lucas,

462 U.S. 367 (1983)..............................2, 5, 10-12, 14

Byrd v. Lamb,

990 F.3d 879 (5th Cir. 2021).....................................7

Carlson v. Green,

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

Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc.,

467 U.S. 837 (1984)....................................................9

Davis v. Passman,

442 U.S. 228 (1979)................................................2, 6

Edwards v. Gizzi,

107 F.4th 81 (2d Cir. 2024).......................................6

Egbert v. Boule,

596 U.S. 482 (2022).............................2-5, 7, 9-10, 14

Elgin v. Dep’t of Treasury,

567 U.S. 1 (2012)................................................11-12

Fleming v. United States,

127 F.4th 837 (11th Cir. 2025)..................................8

iii

Garraway v. Ciufo,

113 F.4th 1210 (9th Cir. 2024)...............................7-8

Gutierrez de Martinez v. Lamagno,

515 U.S. 417 (1995)....................................................9

Harlow v. Fitzgerald,

457 U.S. 800 (1982)..................................................10

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024)...................................................9

Margolin v. Nat’l Ass’n of Immigr. Judges,

146 S.Ct. 1285 (2026).............................................13

Mittleman v. Office of Personnel Management,

76 F.3d 1240 (D.C. Cir. 1996)...................................1

Mittleman v. United States,

104 F.3d 410 (D.C. Cir. 1997)...............................1, 9

Mittleman v. United States Treasury,

773 F.Supp. 442 (D.D.C. 1991).....................1, 2, 5-6

Mohamed v. Jones,

100 F.4th 1214 (10th Cir. 2024)............................6-8

Payne v. Tennessee,

501 U.S. 808 (1991)...................................................9

Pearson v. Callahan,

555 U.S. 223 (2009)...................................................8

Trump v. Slaughter,

609 U.S. ___ (2026).................................................13

iv

United States v. Fausto,

484 U.S. 439 (1988).................................................11

Westfall v. Erwin,

484 U.S. 292 (1988)...................................................9

Ziglar v. Abbasi,

582 U.S. 120 (2017)...................................................3

Constitutional Provisions

U.S. Const. amend. I....................................2, 6, 12, 14

U.S. Const. amend. IV.................................................2

U.S. Const. amend. V...................................................2

U.S. Const. amend. VIII...........................................2, 7

Statutes and Legislative Materials

5 U.S.C. § 1101 et seq. ...............................................11

42 U.S.C. § 1983.......................................................2, 6

Pub. L. No. 100-694, 102 Stat. 4563 (1988)................9

S. Rep. No. 100-413 (1988)...............................1, 12-13

Other Materials

Ann Crittenden, Treasury’s Ousted Chrysler

Critic, The New York Times, March 6, 1981...........1

Ian Kullgren, Trump Defangs Independent

Watchdog of Civil Service Disputes,

Bloomberg Law, August 17, 2026.....................13-14

Leslie Phillips, Whistle-blower measure

urges better protection, USA Today,

March 15, 1989.......................................................12

1

INTEREST OF AMICUS CURIAE 1

Amicus curiae is an attorney who has had

substantial experience in federal courts. In her first

job after graduating from the University of Michigan

Law School, she worked at the U.S. Department of

Treasury on the Chrysler Loan Guarantee program.

After expressing concern about the financial

reporting, she was fired from that position. See Ann

Crittenden, Treasury’s Ousted Chrysler Critic, The

New York Times, March 6, 1981.

The follow-up from that experience involved

lengthy litigation. Opinions from that litigation

include Mittleman v. United States Treasury, 773

F.Supp. 442 (D.D.C. 1991); Mittleman v. Office of

Personnel Management, 76 F.3d 1240 (D.C. Cir.

1996), and Mittleman v. United States, 104 F.3d 410

(D.C. Cir. 1997).

In addition, the Whistleblower Protection Act of

1989 included a provision based on her experience

with the Office of Special Counsel. S. Rep. No. 100413, at 10-11 (1988). As a result of this experience

and her lengthy experience in litigation, amicus has

been interested in the status of the precedent in

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971).

1 Amicus affirms that no counsel for a party authored this

brief in whole or in part and that no person other than amicus

made a monetary contribution to its preparation or submission.

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2

SUMMARY OF ARGUMENT

Amicus had first-hand experience with seeking a

remedy while relying upon Bivens. Mittleman v.

United States Treasury, 773 F.Supp. 442, 453-454

(D.D.C. 1991). The district court found that plaintiff’s

Bivens claims were precluded by the Civil Service

Reform Act and the Privacy Act. Plaintiff’s damages

claim based on her termination for exercising her

First Amendment rights was barred. There should be

a statute, similar to 42 U.S.C. § 1983, to permit

plaintiffs to seek a remedy in federal court for

constitutional violations.

A statute is needed to replace Bivens. To

understand why a statute is necessary, it is

instructive to understand the history and status of

the Bivens doctrine. The Supreme Court authorized a

damages action against federal officials in Bivens v.

Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971). The cause of action created in Bivens was

under the Fourth Amendment. 403 U.S. at 397.

After Bivens, the Court has established two other

causes of action under the Constitution. Davis v.

Passman, 442 U.S. 228 (1979), involved a cause of

action under the Fifth Amendment for a sexdiscrimination claim. Carlson v. Green, 446 U.S. 14

(1980), involved a cause of action under the Eighth

Amendment for an inadequate-care claim.

Justice Thomas noted in Egbert v. Boule, 596 U.S.

482, 486 (2022), that, over the past 42 years, the

Court had declined 11 times to imply a similar cause

of action. One of those cases was Bush v. Lucas, 462

U.S. 367, 388 (1983), in which the question was

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whether an elaborate remedial scheme involving

federal employees should be augmented by a new

judicial remedy.

The analysis to determine whether a Bivens

claim is permitted involves a two-step process. First,

it is asked whether the case presents “a new Bivens

context” and whether it is meaningfully different

from the three cases in which the Court has

authorized a damages action. Ziglar v. Abbasi, 582

U.S. 120, 139 (2017).

Second, if a claim arises in a new context, a

Bivens remedy is unavailable if there are “special

factors” indicating that the Judiciary is arguably less

equipped than Congress to allow the damages action

to proceed. Ziglar, 582 U.S. at 136.

Although the cases describe two steps, the

analysis essentially is 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. For example, a court likely cannot

predict the “systemwide” consequences of recognizing

a cause of action under Bivens. Ziglar, 582 U.S. at

136.

Further, a court may not create a Bivens remedy

if Congress has provided or authorized “an

alternative remedial structure. Ziglar, 582 U.S. at

137. A court must ask only whether it is better

equipped than the political branches to decide

whether existing remedies should be augmented.

Egbert, 596 U.S. at 492-493.

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The question presented in this case is whether

the Ninth Circuit erred in recognizing a Bivens cause

of action. The Ninth Circuit held that the suit did not

present a “new” context from Carlson. Respondent

alleged that he suffered a fractured coccyx in a prison

gang fight.

The Court should address the viability of the

Bivens precedent. In light of the long-standing

disapproval of Bivens in new contexts, the

unworkable two-step process, and the litigation

uncertainties and burdens, it is time for the Court to

overrule Bivens. If Bivens is overruled, then Congress

should have the strong incentive to pass appropriate

statutes to provide causes of action.

ARGUMENT

I.

Congress can write statutes

remedies for federal employees.

to

create

Congress can write statutes to create remedies

for federal employees. In Egbert, Justice Gorsuch

concurred in the judgment, explaining that the

Constitution’s separation of powers prohibits federal

courts from legislating. He noted that the Court had

acknowledged its error. The problem is how to

recover from that error. Egbert, 496 U.S. at 502

(Gorsuch, J., concurring in judgment).

He noted the two-step inquiry, which really is

just a single question. The larger remaining point is

that courts should not act as legislatures, weighing

the costs and benefits of new laws. He has difficulty

with the Court’s case-specific analysis. The answer is

always no if the question is whether a court is better

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equipped than Congress to evaluate a new cause of

action. Justice Gorsuch concluded with urging the

Court to return the power to create new causes of

action to Congress. Egbert, 496 U.S. at 502-504.

Amicus

has

experienced

first-hand

the

unavailability of Bivens claims as a method to seek a

remedy for constitutional violations. In Mittleman v.

United States Treasury, 773 F.Supp. 442, 445 (D.D.C.

1991), she brought constitutional claims based on her

experience working at the U.S. Department of

Treasury on the Chrysler Loan Guarantee program.

In that case, the defendants argued that the court

should not imply a Bivens action where Congress had

established comprehensive statutory schemes which

provided plaintiff with meaningful remedies.

Defendants contended that the Civil Service Reform

Act (“CSRA”) and the Privacy Act barred plaintiff’s

constitutional claims.

The district court agreed that the CSRA

precluded plaintiff’s Bivens claims, relying upon Bush

v. Lucas, 462 U.S. at 367. The preclusive effect of

Bush extended even to those claimants for whom the

CSRA provided no remedy whatsoever.

The district court explained that “even though

plaintiff was fired from a Schedule A position and

then denied a Schedule C position, and Schedule A

and C employees do not enjoy the same substantive

and procedural protections provided members of the

competitive service by the CSRA, plaintiff does not

have a remedy for damages for constitutional

violations outside the CSRA.” Plaintiff’s claim for

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damages regarding her termination for exercising her

First Amendment rights was barred. Id. at 453-454.

The district court used similar reasoning to find

that plaintiff’s constitutional claims relating to

disclosures of false information in plaintiff’s records

were preclude by the Privacy Act. Id. at 454. 1983,

Thus, amicus could not rely upon Bivens to seek

damages for claims of constitutional violations. The

preclusive effect of the CSRA applied even if plaintiff

had no remedy whatsoever under the CSRA.

Congress should write a statute, perhaps similar

to 42 U.S.C. § 1983, to permit plaintiffs to get into

court to pursue constitutional claims against federal

officials. It is untenable that there is not a statutory

cause of action for constitutional claims against

federal officials.

II. The Bivens doctrine is unworkable.

Lower court judges have expressed frustration

with Bivens and its questionable status. Judge

Parker dissented in Edwards v. Gizzi, 107 F.4th 81,

89-91 (2d Cir. 2024) (Parker, J., dissenting), noting

that the Supreme Court continues to express serious

doubts about the future of Bivens. However, as long

as Bivens, Davis, and Carlson remain good law, lower

courts cannot rely upon the Supreme Court’s doubts

about Bivens’ origins to functionally overturn those

precedents.

Judge Tymkovich dissented in Mohamed v.

Jones, 100 F.4th 1214, 1235-1244 (10th Cir. 2024)

(Tymkovich, J., dissenting). He explained that

“[m]yriad rational reasons suggest that Congress is

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better suited to weigh the costs and benefits of

permitting Mr. Mohamed’s Bivens claims. Id. at

1243. Although the Court has recognized that Bivens

claims are contrary to the constitutional separation of

powers, the Court created a self-defeating test in

Egbert. Id. at 1244. Moreover, Judge Tymkovich

emphasized that the public is harmed by the zombie

existence of Bivens. Congress has no incentive to

legislate absent the formal abrogation of Bivens. Id.

at 1240.

In Garraway v. Ciufo, 113 F.4th 1210, 1224-1225

(9th Cir. 2024) (Bumatay, J., dissenting), Judge

Bumatay cited Judge Tymkovich, including his

reference to the zombie existence of Bivens. Judge

Bumatay cautioned that the “judiciary is particularly

ill-equipped to assess these questions and reach

policy determinations.”

Judge Willett specially concurred in Byrd v.

Lamb, 990 F.3d 879, 883-885 (5th Cir. 2021) (Willett,

J., specially concurring). He explained that the

“Bivens doctrine, if not overruled, has certainly been

overtaken.” He pointed out that “Congress certainly

knows how to provide a damages action for

unconstitutional conduct.” Moreover, “individuals

whose constitutional rights are violated at the hand

of federal officers are essentially remedy-less.”

The burdensome two-step process to determine if

Bivens applies becomes even more convoluted when

there are interlocutory appeals. In Mohamed v.

Jones, 100 F.4th 1214, 1215 (10th Cir. 2024), Bureau

of Prisons (“BOP”) officials beat prisoner Mohamed

while other officials watched. Mohamed brought

Eighth Amendment excessive force and failure to

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intervene claims against several BOP officials.

Defendants argued Bivens did not extend to

Mohamed’s claims. The district court denied

defendants’

motion.

The

defendants

sought

interlocutory review. The Tenth Circuit dismissed the

appeal for lack of jurisdiction.

In Garraway v. Ciufo, 113 F.4th 1210, 1214 (9th

Cir. 2024), defendants filed an interlocutory appeal

after the district court denied their motion for

reconsideration of an earlier motion for judgment on

the pleadings in which they argued no Bivens remedy

existed for failure to protect an inmate from prisoner

violence. The Ninth Circuit dismissed the

interlocutory appeal for lack of jurisdiction.

Similarly, in Fleming v. United States, 127 F.4th

837, 839-840 (11th Cir. 2025), the Eleventh Circuit

joined four other circuits in finding that an

interlocutory appeal is not permitted for orders

recognizing Bivens claims. The interlocutory appeal

was dismissed for lack of jurisdiction.

In Pearson v. Callahan, 555 U.S. 223, 236 (2009),

this Court addressed the two-step sequence in

evaluating qualified immunity claims. The Court

permitted discretion by the judges of the district

court and the courts of appeals in deciding when of

the two prongs of the qualified immunity analysis

should be addressed first. The lower court judges

had not been reticent in criticizing the rigid order of

battle. Members of this Court had also criticized the

rule. Id. at 234-325.

It is important that this Court consider opinions

by lower court judges concerning whether a precedent

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or rule is workable. Where a decision has been

questioned by members of the Supreme Court and

has defied consistent application by the lower courts,

those factors weigh in favor of reconsideration. Payne

v. Tennessee, 501 U.S. 808, 829-830 (1991).

This Court has been willing to overrule

precedent, particularly if it is unworkable. In Loper

Bright Enterprises v. Raimondo, 603 U.S. 369, 144

S.Ct. 2244, 2273, 219 L.Ed.2d 832 (2024), this Court

held that Chevron [Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984)]

is overruled. Chief Justice Roberts explained that

Chevron has proved to be fundamentally misguided.

Attempts by the Court to clarify the doctrine have

only added to Chevron’s unworkability. For decades,

the Court often declined to invoke Chevron even

where it might appear to be applicable. Id. at 22702273.

This Court should not hesitate to overrule Bivens

based on concern that Congress may not pass a

pertinent statute. Congress reacted quickly to this

Court’s opinion in Westfall v. Erwin, 484 U.S. 292

(1988), and passed the Federal Employees Liability

Reform and Tort Compensation Act of 1988, Pub.L.

100-694, 102 Stat. 4563 (commonly known as the

Westfall Act). Gutierrez de Martinez v. Lamagno, 515

U.S. 417, 425-426 (1995). Congress fashioned special

rules to provide for the transition. Mittleman v.

United States, 104 F.3d 410, 412 (D.C. Cir. 1997).

As Justice Gorsuch emphasized, “once more, we

tote up for ourselves the costs and benefits of a

private right of action in this or that setting.” Egbert,

596 U.S. at 504 (Gorsuch, J., concurring in

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judgment). The burdensome test to determine

whether a Bivens cause of action exists contrasts

sharply with the simple reliance upon a statute that

permits claims against state and local officials.

In light of this Court’s recognition of the serious

separation of powers and workability problems with

Bivens, it is time for this Court to overrule Bivens.

III. Bivens does not afford a remedy for federal

employees.

Bivens has often been the basis for litigation

involving federal employees. However, Bivens

typically has not afforded a cause of action or a

remedy for federal employees. In light of the

questions now about the workability of the Bivens

doctrine, it is important to focus on Congress creating

a statutory cause of action on which federal

employees can rely to bring their constitutional

claims directly to federal court.

In Harlow v. Fitzgerald, 457 U.S. 800, 802 (1982),

this Court addressed the scope of immunity available

to senior aides of the President of the United States

in a suit for damages based upon their official acts.

This Court had recognized that, in situations of abuse

of office, an action for damages may offer the only

realistic avenue for vindication of constitutional

guarantees. Harlow, 457 U.S. at 814, citing Bivens,

403 U.S. at 410 (For people in Bivens’ shoes, it is

damages or nothing.”).

In 1983, the year after Harlow was decided, this

Court decided Bush v. Lucas, 462 U.S. 367, 388

(1983). The case concerned “whether an elaborate

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remedial system … should be augmented by the

creation of a new judicial remedy.” The Court

concluded that it would be inappropriate to

supplement the regulatory scheme with a new

judicial remedy. Id. at 368. Justice Marshall in

concurrence emphasized that today’s decision did not

foreclose a federal employee from pursuing a Bivens

remedy where his injury is not attributable to

personnel actions which may be remedied under the

federal statutory scheme. Id. at 391 (Marshall, J.,

concurring).

The opinion asserted that “[f]ederal civil servants

are now protected by an elaborate, comprehensive

scheme that encompasses substantive provisions

forbidding arbitrary action by supervisors and

procedures—administrative and judicial—by which

improper action may be redressed.” But, in a

footnote, the opinion admitted that “[n]ot all

personnel actions are covered by this system.” There

are no provisions for appeal of either suspensions for

14 days or less or adverse actions against

probationary employees. Bush, 462 U.S. at 385 and n.

28.

The Civil Service Reform Act of 1978, 5 U.S.C. §

1101 et seq., established a comprehensive system for

administrative and judicial review of personnel

actions involving federal employees. United States v.

Fausto, 484 U.S. 439, 455 (1988). In Elgin v. Dep’t of

Treasury, 567 U.S. 1, 10 (2012), the Court stated that

“the CSRA does not foreclose all judicial review of

petitioners’ constitutional claims, but merely directs

that judicial review shall occur in the Federal

Circuit.” The question is whether it is fairly

discernible that Congress intended in the CSRA that

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covered employees appealing covered agency actions

should proceed exclusively through the statutory

review scheme.

In dissent in Elgin, Justice Alito discussed Bush

v. Lucas, 462 U.S. at 381. He explained that the

Court had declined to allow a Bivens claim for

retaliation against a federal employee who had

exercised his First Amendment rights. The employee

could have used the administrative process to pursue

a statutory claim for wrongful removal. The Court

had found that Congress did not intend to allow a

duplicative nonstatutory claim for damages based on

the same set of facts. Elgin, 567 U.S. at 31 (Alito, J.,

dissenting).

The holding in Bush seemingly relies upon the

existence of a comprehensive scheme without

determining whether the case at issue is actually

covered by that comprehensive scheme.

Justice

Marshall wrote separately to emphasize that a

different case would be presented if there was not a

comprehensive scheme to provide full compensation

to civil service employees who are discharged or

disciplined in violation of their First Amendment

rights. Bush, 462 U.S. at 390 (Marshall, J.,

concurring).

There have been ongoing concerns about

whistleblower protections for federal employees. The

cursory assumption in Bush that the scheme is

comprehensive and reliably provides at least some

remedy to federal employees is not correct. See Leslie

Phillips, “Whistle-blower measure urges better

protection,” USA TODAY, March 15, 1989; S. Rep.

No. 100-413 (1988) – Whistleblower Protection Act of

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1988: Report of the Committee on Governmental

Affairs, United States Senate, to accompany S. 508.

Senator Charles Grassley stated that our

bureaucracy has not at all been receptive to

whistleblowers. S. Rep. No. 100-413, at 5.

Elaine Mittleman, amicus in this case, had an

unfortunate experience with the Office of Special

Counsel (“OSC”). The Senate Report explained that

“Ms. Mittleman not only did not receive any

assistance from Office of Special Counsel on her

complaint of reprisal, she was actually hurt by her

contacting the OSC.” S. Rep. No. 100-413, at 10-11.

The myriad questions involving availability of

judicial review of matters involving federal

employees are continuing. This Court recently held in

Margolin v. Nat’l Ass’n of Immigr. Judges, 146 S.Ct.

1285, 1287 (2026), that Congress intended federal

employees to bring most work-related grievances to

the Merit Systems Protection Board (“MSPB”) and

the Special Counsel—not to federal district court.

In Trump v. Slaughter, Justice Sotomayor in

dissent noted that the Government had argued that

Congress had displaced any remedy in this case by

enacting the CSRA. She noted that the CSRA

explicitly does not apply to principal officers like

Slaughter. However, that theory was not before the

Court, as the Government had failed to raise it.

Trump v. Slaughter, 609 U.S. at ___ (Sotomayor, J.,

dissenting) (slip op. at 92).

There is considerable uncertainty now about the

status and authority of the Merit Systems Protection

Board. Ian Kullgren, Trump Defangs Independent

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Watchdog of Civil Service Disputes, Bloomberg Law,

August 17, 2026. That article explained that recent

steps by the Trump administration have moved some

of MSPB’s core responsibilities to other agencies or

hollowed them out altogether. Rules set to take effect

next month will take away appeals from MSPB and

transfer them to the Office of Personnel

Management. Thus, it is not clear at this time to

what extent the comprehensive scheme discussed in

Bush will continue to exist.

This Court held in Egbert, 596 U.S. at 498-499,

that there is no Bivens cause of action for a First

Amendment retaliation claim. With the present

uncertainty about the complex and continuing issues

involving review of actions concerning federal

employees, the exemption from judicial review based

on Bush v. Lucas and Bivens is very troubling. There

are many differing situations involving federal

employees, so asserting that there is a simple rule

about the existence of a comprehensive statutory

scheme is not instructive. Congress must act and

provide a statutory basis so federal courts can

address constitutional issues involving federal

employees.

CONCLUSION

For the foregoing reasons, amicus urges this

Court to reverse the judgment of the United States

Court of Appeals for the Ninth Circuit.

Respectfully submitted,

ELAINE MITTLEMAN

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Counsel of Record

300 Main Street

Suite 2A

Evansville, IN 47708

(202) 297-2338

elainemittleman@msn.com

August 21, 2026

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