Supreme Court amicus brief for the Cato Institute on federal accountability

Kekai Watanabe, a federal prisoner, alleges that a prison nurse was deliberately indifferent to his fractured coccyx, telling him to stop being a “cry baby” and refusing to send him to a hospital, in violation of the Eighth Amendment. The U.S. Court of Appeals for the Ninth Circuit allowed his claim for damages against the nurse to proceed under Bivens. The Supreme Court granted review on one question: whether the Ninth Circuit erred in recognizing a Bivens cause of action.

The firm filed a brief for the Cato Institute in support of Mr. Watanabe. It argues from history, text and precedent that money damages against the individual officer were the default remedy for constitutional violations at the Founding, that Congress has ratified and never repudiated that remedy, and that making federal officers unaccountable would not have been justifiable to the Founders. In the brief’s words, “an agent of the government who is entrusted with public power is not immune from consequences at law for abusing it.”

The Court has set the case for argument on November 9, 2026.