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The Supreme Court’s review of relisted cases continues to stir interest, particularly with regard to the viability of the Bivens remedy. As the October 2025 term comes to an end, the Court must address several cases that have been relisted, including notable ones challenging existing precedents.
The focus is on two cases, Nielsen v. Watanabe and Mohan v. Watkins, which touch upon the Bivens remedy under the Eighth Amendment. The Bivens doctrine, originating from the 1971 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, allows for damages claims against federal officers for constitutional violations, specifically warrantless searches and arrests under the Fourth Amendment.
Both cases bring into question the extent of Bivens’ applicability. Nielsen v. Watanabe presents a scenario involving a federal detainee who alleges medical indifference to his injuries, challenging whether this aligns with or extends beyond the scope of the Carlson v. Green context.
In Mohan v. Watkins, post-surgical care, or the lack thereof, at a correctional facility is in focus, further complicating the debate about whether Bivens applies to detainees under both the Fifth and Eighth Amendments and under which conditions it protects inmates from inadequate medical attention.
The U.S. Courts of Appeals show division over certain interpretations, particularly around whether internal grievance procedures can replace Bivens remedies and if the severity of harm influences the viability of a claim under Bivens. Circuits are split between those that assert less severe or non-life-threatening injuries form a “new context” and those that view them as falling under existing precedents.
The Supreme Court’s decision on whether to address these cases could mark a significant shift in the prevailing understanding of implied causes of action against federal officers or cement existing reluctance to extend Bivens beyond its original and very limited scope. Observers await the Court’s potential ruling in anticipation of further delineation regarding what remains of Bivens, especially after decades of narrowing its application.
For further reading on the specifics of these cases and the evolving nature of Bivens remedies, the full discussion is available here.
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