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Francis Nielsen v. Kekai Watanabe
Paid petition · United States Court of Appeals for the Ninth Circuit, No. 23-15605 · judgment September 6, 2024
Before the decision, roughly the 4.1% base rate. The model weighted this up for counsel who has won certiorari before and a Ninth Circuit decision below.
Question presented
This case concerns the judicially created damages remedy first recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 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 on-site 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 ex-tended 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. 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, causing chronic pain, but was not sent to a hospital. The Ninth Circuit held the suit did not present a "new" context from Carlson-not-withstanding 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.
Counsel of record
For petitioner
Jeffrey Alan Lamken
MoloLamken LLP
For respondent
Joshua Morgan Wesneski
Weil, Gotshal & Manges LLP
Case
Conference history
Distributed for 4 conferences
Amicus briefs
3 merits
(3 supporting pet./neither)
Linked docket
25A208
Proceedings
- Aug 31 2026Motion of United States for leave to participate in oral argument and for divided argument submitted.
- Aug 27 2026CIRCULATED
- Aug 25 2026Record requested from the United States Court of Appeals for the Ninth Circuit.
- Aug 25 2026Record received from the United States Court of Appeals for the Ninth Circuit. The record is electronic and is available on PACER.
- Aug 21 2026Brief amicus curiae of United States filed.
- Aug 21 2026Brief amicus curiae of Elaine Mittleman filed.
- Aug 21 2026Brief amici curiae of Missouri, et al. filed.
- Aug 14 2026Brief of petitioner Francis Nielsen filed.
- Aug 11 2026SET FOR ARGUMENT on Monday, November 9, 2026.
- Jul 29 2026Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 14, 2026. The time to file respondent's brief on the merits is extended to and including September 23, 2026.
- Jul 28 2026Motion to dispense with printing the joint appendix filed by petitioner Francis Nielsen.
- Jul 27 2026Motion for an extension of time to file the briefs on the merits filed.
- Jun 22 2026Petition GRANTED.
- Jun 15 2026DISTRIBUTED for Conference of 6/18/2026.
- May 26 2026DISTRIBUTED for Conference of 6/11/2026.
- May 15 2026Supplemental brief of respondent Kekai Watanabe filed.
- May 05 2026Supplemental brief of petitioner Francis Nielsen filed.
- Feb 24 2026Rescheduled.
- Feb 23 2026DISTRIBUTED for Conference of 2/27/2026.
- Feb 19 2026Rescheduled.
- Feb 17 2026Supplemental brief of respondent Kekai Watanabe filed.
- Feb 13 2026Supplemental brief of petitioner Francis Nielsen filed. (Distributed)
- Jan 21 2026DISTRIBUTED for Conference of 2/20/2026.
- Jan 20 2026Reply of petitioner Francis Nielsen filed. (Distributed)
- Jan 05 2026Brief of respondent Kekai Watanabe in opposition filed.
- Oct 31 2025Motion to extend the time to file a response is granted and the time is extended to and including January 5, 2026.
- Oct 29 2025Motion to extend the time to file a response from November 6, 2025 to January 5, 2026, submitted to The Clerk.
- Oct 03 2025Petition for a writ of certiorari filed. (Response due November 6, 2025)
- Aug 21 2025Application (25A208) granted by Justice Kagan extending the time to file until October 3, 2025.
- Aug 19 2025Application (25A208) to extend the time to file a petition for a writ of certiorari from September 3, 2025 to October 3, 2025, submitted to Justice Kagan.