The Supreme Court hears arguments on Monday in two cases that arrive from different corners of the law but ask a similar question: when federal power causes harm, who gets a remedy in court? In Nielsen v. Watanabe, a federal detainee wants to sue a prison nurse for damages over inadequate medical care. In Hoffmann v. WBI Energy Transmission, North Dakota landowners want a pipeline company to pay the legal fees they incurred fighting a condemnation.
The cases are not formally related. They share a theme that has become central to the Roberts Court: whether the courthouse door stays open when the defendant is the federal government or a private party acting with federal authority. The Court's recent record has narrowed that door. This term, it could narrow it further.
The inmate and the nurse
Kekai Watanabe was a federal detainee at the Federal Detention Center in Honolulu. In July 2021, he was injured in a gang fight and suffered a fractured coccyx. According to his complaint, prison staff, including nurse Francis Nielsen, gave him over-the-counter pain medication and told him to stop being a cry baby. He says the care was deliberately indifferent to his serious medical needs, and he sought $3 million in damages.
The district court dismissed the case. A divided Ninth Circuit panel reversed, holding that Watanabe's claim could proceed under Bivens v. Six Unknown Named Agents, the 1971 decision that implied a damages remedy for certain constitutional violations by federal officers. The full Ninth Circuit declined to rehear the case, over the dissent of 11 judges. The Supreme Court granted certiorari in June and scheduled argument for Monday.
The question is not whether Watanabe's care was adequate. It is whether his claim fits inside the narrow set of cases in which the Court has allowed a Bivens damages remedy. Bivens itself involved a Fourth Amendment search. The Court extended the remedy to an Eighth Amendment inadequate-medical-care claim in Carlson v. Green in 1980, where a federal prisoner died after prison officials failed to treat his asthma. Since then, the Court has not recognized a new Bivens remedy. In Ziglar v. Abbasi and Egbert v. Boule, it made the test harder to satisfy, asking whether a claim arises in a "new context" and whether there are "special factors" that counsel against a judicially implied remedy.
Nielsen argues that Watanabe's claim is a new context. The injury was less severe than the one in Carlson, where the prisoner died within hours. Watanabe survived and could seek injunctive relief. Nielsen also points to the administrative remedies available to federal detainees, including the Bureau of Prisons Administrative Remedy Program, the Prison Litigation Reform Act's exhaustion requirement, and the Federal Tort Claims Act. Those alternatives, Nielsen says, are special factors that counsel against a damages remedy. Nielsen goes further and asks the Court to overrule Bivens outright.
Watanabe argues that his claim is functionally identical to Carlson. Both involve Eighth Amendment deliberate indifference to a serious medical need, and both involve federal prison medical staff. The administrative remedy program predates Carlson, he says, and the PLRA made exhaustion a prerequisite to suit, not a bar. Congress ratified the Carlson understanding when it enacted the Westfall Act and the PLRA, and stare decisis favors keeping the remedy.
The United States, as amicus, supports Nielsen. The Solicitor General's office argues that Carlson is obsolete and that separation-of-powers concerns, along with legislation enacted after 1980, counsel against a damages remedy. The ACLU, supporting Watanabe, argues that the Westfall Act's savings clause preserved Bivens liability and endorsed the pre-1988 understanding that Carlson covered Eighth Amendment medical-care claims.
The practical stakes reach beyond one inmate. Bivens is already a narrow remedy. The Court has recognized it in only a handful of contexts, and lower courts have dismissed many claims as new contexts. If the Court overrules Bivens or refuses to apply it here, federal officers, including immigration agents, prison staff, and law enforcement, would face fewer damages suits, as the Arizona Republic reported in its preview of the case. Supporters of that outcome say the remedy is judicially invented and that Congress should decide when damages are available. Critics say it would leave people with no meaningful remedy when federal officers violate constitutional rights.
The landowners and the pipeline
The second case began with a pipeline. WBI Energy Transmission built a roughly 12-mile natural gas pipeline in McKenzie County, North Dakota. When negotiations with landowners failed, WBI used its authority under Section 7 of the Natural Gas Act to condemn easements across their property. The parties eventually settled the property value after about three years of litigation, but they disputed the landowners' legal fees.
The district court awarded the landowners $383,375.76 in attorney's fees and costs under North Dakota law. The Eighth Circuit vacated the award. It held that the Natural Gas Act's condemnation power carries the federal Fifth Amendment's just-compensation standard, which does not include attorney's fees. The decision created a split with the Third, Fifth, Sixth, and Eleventh Circuits, which apply state law to compensation in these cases.
The Supreme Court granted certiorari in June and is scheduled to hear argument on Monday. The question is whether just compensation in a private condemnation under the Natural Gas Act is determined by state law, including fee-shifting rules, or limited to the federal constitutional minimum.
The landowners, represented by the Institute for Justice, argue that the Natural Gas Act does not displace state law. They invoke United States v. Kimbell Foods, which allows federal courts to borrow state law when federal law is silent, and they point to the Act's instruction to conform to state practice "as nearly as may be." WBI relies on PennEast Pipeline Co. v. New Jersey, which described the federal condemnation power, and on the federal government's position that the Fifth Amendment sets the compensation floor. The Solicitor General supports WBI. Twelve states and several property-rights groups support the landowners.
The case is narrower than the Bivens dispute, but it has a similar shape. A private company is using a federal power, and the question is whether the people on the other side can recover the costs of defending their property. If the Court rules for WBI, landowners in the Eighth Circuit would receive the constitutional minimum and no fee award. If it rules for the landowners, the fee-shifting rules of the Third, Fifth, Sixth, and Eleventh Circuits would be validated, and the Eighth Circuit would have to follow.
The common thread
The two cases are usually described as a Bivens case and a condemnation case. The deeper connection is about remedies. In Nielsen, the question is whether a damages remedy exists at all. In Hoffmann, the question is whether a state-law remedy for fees survives when a federal statute supplies the condemnation power. Both cases ask the Court to decide how far the judiciary should go in supplying a remedy that Congress did not expressly create.
The Court's recent direction is clear. It has narrowed Bivens repeatedly and has been reluctant to imply new remedies. It has also been skeptical of state-law rules that add to federal statutory schemes. The two arguments on Monday will test how far that skepticism extends when the plaintiff is an individual and the defendant is either a federal officer or a private company acting with federal authority.
There is also a practical asymmetry. The Bivens case could affect thousands of federal detainees and the officers who supervise them. The pipeline case could affect a smaller number of landowners, but it could also shape how pipeline companies negotiate easements across the country. A company that does not have to pay the other side's legal fees has more leverage in a condemnation. A landowner who cannot recover fees has less ability to fight one.
Both cases also show how narrow the Court's remedy doctrine has become. Bivens survives in name, but the Court has not extended it in decades, and the lower courts have read the "new context" test broadly. The Natural Gas Act does not mention attorney's fees, so the Court must decide whether to fill the gap with state law or with the Constitution's minimum. In both cases, the absence of explicit congressional text is the center of the argument.
What to watch
The arguments on Monday will show how the justices frame the questions. In the Bivens case, watch whether the Court's more skeptical members press Nielsen's invitation to overrule Bivens outright or whether they prefer a narrower ruling that Watanabe's claim is a new context. Watch, too, whether the justices ask about the availability of alternative remedies and whether those remedies are meaningful in practice.
In the pipeline case, watch whether the Court treats the Natural Gas Act as a silent statute that borrows state law or as a federal scheme with a uniform constitutional floor. The circuit split gives the Court a reason to decide the question, and the involvement of 12 states and the Solicitor General raises the stakes.
A decision is expected by the end of the term in June 2027. The Court could decide either case narrowly, and it could decide one without reaching the broader question. But the pair is a reminder that the remedy question is not abstract. It determines whether an inmate can hold a nurse accountable, and whether a landowner can afford to challenge a pipeline.
The courthouse door is the issue in both cases. The Court is deciding how wide to leave it.
Primary sources
- The Supreme Court docket in Nielsen v. Watanabe, No. 25-417, for the case posture, counsel, and argument date.
- The Supreme Court docket in Hoffmann v. WBI Energy Transmission, Inc., No. 25-159, for the case posture and argument date.
- The Ninth Circuit's opinion in Watanabe v. Nielsen, No. 23-15605, for the facts, the procedural history, and the Bivens holding.
- SCOTUSblog's case page for Nielsen v. Watanabe for the question presented and the merits briefing schedule.
- McGuireWoods for the Natural Gas Act condemnation background, the fee award, and the circuit split in Hoffmann.
- The Arizona Republic for the practical stakes of the Bivens case and the debate over suits against federal agents.