On Monday, November 9, the U.S. Supreme Court will hear arguments in a case that could end — entirely — the ability of people in the United States to sue federal officers, including immigration agents, for money damages when those officers are accused of violating the Constitution. The case, Nielsen v. Watanabe, No. 25-417, gives the court's 6-3 conservative majority an opportunity to overturn what is left of a controversial 1971 decision, Bivens v. Six Unknown Named Agents, USA Today reported on Sunday.

Source: USA Today

The plaintiff is Kekai Watanabe, a federal prisoner who is seeking $3 million in damages from a federal prison nurse, Francis Nielsen. Watanabe says that after he was attacked during a gang-related fight at a federal prison in Honolulu in 2021, suffering a broken tailbone, he should have been hospitalised or seen by a specialist, and that Nielsen denied him proper medical treatment. Those are his allegations; the nurse disputes the claim, and no court has awarded him damages.

A 1971 remedy on trial

The legal path Watanabe is using was created in 1971, when the Supreme Court held in Bivens that Webster Bivens could sue federal narcotics agents who had searched his apartment and arrested him without a warrant, seeking money damages directly under the Fourth Amendment even though Congress had never passed a law authorising such suits. The court extended that remedy twice: in Davis v. Passman in 1979, for sex discrimination by a member of Congress, and in Carlson v. Green in 1980, where prison staff were held answerable under the Eighth Amendment's ban on cruel and unusual punishment after failing to respond appropriately to a prisoner's fatal asthma attack.

The court has not recognised any new kind of Bivens claim since 1980. In its most recent Bivens decision, Egbert v. Boule in 2022 — a case involving a Border Patrol agent — the court noted that it had declined 11 times to imply a similar cause of action in other situations, and held that prescribing a cause of action is, in all but the most unusual circumstances, a job for Congress, not the courts. State and local officers stand in a different position: they can be sued under a federal statute, 42 U.S.C. Section 1983. No equivalent statute exists for federal officers, which is why Bivens matters so much.

An appeals court — the U.S. Court of Appeals for the Ninth Circuit — ruled in Watanabe's favour, holding that his claim is governed by Carlson v. Green because it asserts the same kind of Eighth Amendment violation, by the same type of defendant, in the same institutional setting: a federal prisoner allegedly denied medical care. Watanabe's lawyers argue exactly that to the Supreme Court: this case, they say, does not ask the court to extend Bivens at all.

Nielsen, backed by the Justice Department, argues the opposite — and goes further. The department argues that the 1980 Carlson decision is now "obsolete" because of the more recent rulings limiting Bivens, pointing to factual differences such as the immediacy and severity of the harm. Nielsen's own brief expressly argues that Bivens should be overruled altogether, and that Congress, not the judiciary, creates causes of action. The district court in Hawaii originally dismissed Watanabe's suit; the Ninth Circuit reversed that dismissal, and the Supreme Court agreed on June 22, 2026, to take the case.

What the filings say about the prison injury

A brief filed with the court by the Cato Institute in support of Watanabe describes his account in detail: he alleges that after being assaulted, while in "10-out-of-10 pain," a government nurse told him "to stop being a cry baby" and refused to send him to hospital; his coccyx was broken, and, untreated for years, bone chips migrated into his soft tissue. The brief says that as of oral argument before the appeals court, the government had still not taken him to a specialist. These details come from Watanabe's side of the record and are presented as allegations; Nielsen's side argues the claim should never have been allowed to proceed at all.

Why this reaches far beyond one prison

For immigrant communities — including the large Punjabi diaspora in the United States — the practical question behind the legal doctrine is what remedy exists when a federal agent, rather than a local police officer, is accused of breaking the rules. A person harmed by a state or local officer can sue that officer under Section 1983. A person who says an ICE or Border Patrol officer violated their constitutional rights has, in practice, depended on Bivens — the very remedy whose survival is now in question — because Congress has never enacted a federal equivalent.

Legal experts quoted in coverage of the case point to the main alternative that would remain: a claim against the United States itself under the Federal Tort Claims Act, which requires an administrative claim first, does not allow a jury trial, and does not cover every kind of constitutional violation. Bloomberg Law has reported that with the Bivens channel essentially blocked, experts regard the Tort Claims Act as the best remaining alternative for families — a narrower and harder road than suing the officer directly.

What happens next

After Monday's argument, the justices will confer and draft opinions; a decision is expected by mid-2027. The court has three broad paths: it could affirm the Ninth Circuit and let Watanabe's suit proceed under Carlson; it could distinguish Carlson on the facts and narrow Bivens claims for prisoners to the most extreme cases; or it could accept Nielsen's invitation and overrule Bivens entirely, as some conservative justices have advocated in the past. Whatever the court does, Congress could afterwards create a statutory right to sue federal officers — supporters of the limits say that choice belongs to lawmakers, while critics say that without a court-made remedy, constitutional violations by federal agents will often carry no damages remedy at all.