Last September, a divided panel of the Ninth Circuit ruled (in Watanabe v. Derr) that a federal prisoner who alleged that prison officials were deliberately indifferent to his medical needs could pursue a damages claim against those officials. Judge Richard Paez, joined by Judge Lucy Koh, held that the implied damages remedy that the Supreme Court recognized in its 1971 ruling in Bivens v. Six Unknown Named Agents applied. Judge Milan Smith disagreed.

Yesterday, over the recorded dissents of eleven judges, the Ninth Circuit denied the prison officials’ petition for rehearing en banc. In the primary dissent, Judge Ryan Nelson observes that until the panel’s ruling, “even the Ninth Circuit—which has become famous for repeatedly ignoring the Supreme Court on Bivens questions—seemed to get the message” that Bivens claims are strongly disfavored.” But the panel’s ruling “reverts to a sad time in our court’s bygone history where we breathed life into Bivens—again and again—even when the Supreme Court told us to stop.” Judge Nelson opines that the panel majority failed to consider the availability of alternative remedies at “Bivens step one” and that its holding violates the Supreme Court’s “clear instructions,” “underscores a circuit split,” and defies the Ninth Circuit’s own precedent.

Judges Paez and Koh take issue with Judge Nelson in an extensive response. (I won’t try to summarize it here, but a reader interested in the dispute will of course want to read their defense.)

In a second dissent, Judge Daniel Collins agrees with Judge Nelson that the Ninth Circuit should have taken the case en banc. But Judge Collins also highlights the need for the Supreme Court to “provide a greater degree of clarity” on the availability of Bivens actions “in the context of the sort of Eighth Amendment inadequate-prisoner-medical-care claim at issue here.” As Collins explains, “The primary difficulty here arises from the considerable tension between the Supreme Court’s never-explicitly-overruled decision in Carlson v. Green (1980), and nearly everything else the Court has said about the scope of Bivens over the last many years.” (Citation simplified.) In particular, “the Supreme Court has rejected all of the premises on which Carlson was based; it has instructed us that the contours of what remains of Carlson’s cause of action are to be evaluated under the Court’s current standards; and those standards, if faithfully applied, would seemingly finish off Carlson entirely.” (Emphasis in original.)

This case should provide the Supreme Court the opportunity to clarify the confusion that Judge Collins identifies.