Nielsen v. Watanabe Brief: The Constitution Is Enough to Sue Federal Agents

Matthew Cavedon

Kekai Watanabe alleges that after being brutally assaulted in a federal prison and while in 10-out-of-10 pain, a government nurse told him “to stop being a crybaby” and refused to send him to the hospital. Mr. Watanabe’s coccyx was broken. Untreated for years, the bone chips migrated into his soft tissue.

Mr. Watanabe says the nurse’s deliberate indifference to his serious medical need is an Eighth Amendment violation and that he can seek relief under the Supreme Court’s longstanding Bivens precedent. He filed this suit asking for his injuries to be treated by a specialist and for damages. The Court of Appeals permitted his suit to proceed.

The nurse disagrees. He wants the Supreme Court to grant him—and everyone else in the federal government—sweeping immunity from monetary damages. Page one of his brief, in fact, calls for this case to be “the final installment of the Bivens saga.”

As of the oral arguments before the Court of Appeals, the government had not taken Mr. Watanabe to a specialist.

Cato filed an amicus brief explaining why settled law supports Mr. Watanabe’s claim. History, text, and precedent all point toward the traditional remedy: monetary damages against the individual who violated the plaintiff’s rights. Because the Constitution already incorporated the tradition of damages in courts of law, the parties’ statutory interpretation arguments are avoidable.

Next, should the Court find it necessary or helpful to look at the statutory debate, this brief shows the various ways in which Congress has blessed, if not expressly approved, lawsuits seeking damages against federal officers.

Lastly, this brief seeks to convey to the Court how divorced Petitioner’s arguments are from the lived experiences of ordinary Americans. “The people themselves” know that the Constitution is already supposed to protect them from the worst government abuses. It would, candidly, be shocking for the Court to say that a theory of constitutional organization demands further authorizing legislation.

The Court should put its foot down. The “final installment of the Bivens saga” should be a return to founding values and constitutional text: a realization that Bivens was never necessary in the first place. The People who adopted the Constitution knew that money damages were available from those who wronged them, even if they worked for the federal government. 

The People of today, heirs of that tradition, cannot be divested of that established remedy without proper amendment of the Constitution.