A Bivens action is a lawsuit for money damages against an individual federal officer who violated your constitutional rights. It takes its name from the 1971 Supreme Court decision in Bivens v. Six Unknown Named Agents, which held that a person could sue federal agents directly under the Constitution even though no federal statute authorized the suit.1Cornell Law Institute. Bivens v. Six Unknown Named Agents The remedy still exists, but the Supreme Court has narrowed it so aggressively over the last several decades that almost no new claim survives. If your situation looks close to one of three specific Supreme Court cases, you may have a viable claim. If it doesn’t, you probably don’t.
The Three Situations Where a Bivens Claim Still Works
In more than fifty years, the Supreme Court has recognized a Bivens remedy in exactly three factual settings. Every viable claim today has to fit closely inside one of them.
The first is a Fourth Amendment claim for unreasonable search and seizure by federal officers. That was the original 1971 case: narcotics agents entered a home without a warrant and used unreasonable force during the arrest, and the Court allowed a damages suit against the agents personally.1Cornell Law Institute. Bivens v. Six Unknown Named Agents
The second is a Fifth Amendment equal protection claim for gender discrimination in federal employment. In Davis v. Passman (1979), a congressional staffer was fired because of her sex, and the Court held she could sue for damages under the equal protection component of the Fifth Amendment’s Due Process Clause.2Justia Law. Davis v. Passman, 442 U.S. 228 (1979)
The third is an Eighth Amendment claim for inadequate medical care of a federal prisoner. In Carlson v. Green (1980), a prisoner’s estate sued federal prison officials whose alleged failure to provide medical treatment led to his death, and the Court allowed the claim.3Library of Congress. Carlson v. Green, 446 U.S. 14 (1980)
Carlson was the last time the Court expanded Bivens. Every time since, it has refused.
Why New Bivens Claims Almost Always Fail
The modern Supreme Court calls creating a new Bivens remedy a “disfavored judicial activity.” Two decisions built the current framework: Ziglar v. Abbasi (2017) and Egbert v. Boule (2022).4Supreme Court of the United States. Egbert v. Boule, 596 U.S. 482 (2022)
A court asks first whether the claim arises in a “new context,” meaning it differs in any meaningful way from the three recognized cases. Small differences count: a different constitutional amendment, a different type of federal officer, a different factual setting, a different kind of injury. Almost every new claim lands in new-context territory.
If the context is new, the court asks whether any “special factors counsel hesitation.” The bar here is nearly impossible to clear. If there is even a single rational reason to think Congress would be better positioned to decide whether a damages remedy should exist, the claim cannot proceed. National security, military affairs, immigration enforcement, foreign relations, and the existence of any alternative process, even an internal agency grievance system, all trigger hesitation. Egbert effectively collapsed the two steps into one question: whether there is any reason to think Congress might be better equipped to create a damages remedy. Courts almost always answer yes.4Supreme Court of the United States. Egbert v. Boule, 596 U.S. 482 (2022)
Two examples show how narrow the doctrine has become. In Egbert, the Court refused to recognize a Fourth Amendment excessive-force claim against a Border Patrol agent, citing border security concerns and an existing administrative grievance process. In the same decision, it flatly rejected a First Amendment retaliation claim, stating that it had “never held that Bivens extends to First Amendment claims.”4Supreme Court of the United States. Egbert v. Boule, 596 U.S. 482 (2022)
If your claim doesn’t look almost identical to Bivens, Davis, or Carlson, expect the court to find a reason to reject it.
Who You Can Sue
A Bivens action targets an individual federal officer in their personal capacity. You cannot sue the federal government itself, a federal agency, or an officer in their official capacity. The FBI, Customs and Border Protection, the Bureau of Prisons, and every other agency are off-limits under this doctrine. The complaint has to name the specific person who allegedly committed the constitutional violation.
That means the officer’s personal assets are theoretically at stake, though in practice the federal government often covers judgments or settlements for its employees.
Supervisors
Suing a supervisor who did not personally commit the violation is possible but difficult. Liability requires that the supervisor either personally participated in the unconstitutional conduct or that there is a sufficient causal connection between the supervisor’s actions and the violation. Being in charge of the offending officer is not enough on its own. The supervisor must have had actual authority over the person who violated your rights, and their own conduct must have meaningfully contributed to the harm.5Ninth Circuit District and Bankruptcy Courts. 9.42 Bivens Claim Against Federal Defendant in Individual Capacity – Elements and Burden of Proof
Serving the Complaint
Filing a Bivens complaint means serving both the individual officer and the United States. Federal Rule of Civil Procedure 4(i)(3) requires this dual service any time a federal employee is sued in their individual capacity for job-related conduct. Serve the officer but miss the United States, and the court must give you a reasonable chance to fix the error, but the mistake can slow the case badly.6Legal Information Institute. Federal Rules of Civil Procedure, Rule 4 – Summons
Qualified Immunity Is Where Most Claims Die
Even a claim that fits inside one of the three recognized contexts runs into qualified immunity. The doctrine shields federal officers from personal liability unless their conduct violated a constitutional right that was “clearly established” at the time. Existing case law must have placed the constitutional question “beyond debate” so that every reasonable officer would have known the conduct was unlawful.7District of New Jersey. Section 1983 – Qualified Immunity
Courts don’t demand a prior case with identical facts, but the precedent has to be specific enough that the officer had fair warning. If no earlier court has found a constitutional violation on closely similar facts, the officer walks. Qualified immunity is also immunity from the lawsuit itself, not just from paying damages, so a denial can be appealed before trial. Cases often stall for months or years on that single issue.
How Long You Have to File
There is no single federal statute of limitations for Bivens claims. Courts borrow the personal injury deadline from the state where the alleged violation happened. These deadlines run from one to six years depending on the state, with two years the most common. Miss it and the claim is gone, no matter how strong the underlying facts.
The clock generally starts on the date of the violation. Some states apply a discovery rule that delays the start if the injury wasn’t immediately apparent, and certain circumstances such as the plaintiff’s age or incapacity can pause the deadline. Identify the correct state deadline early, because it drives everything that follows.
What You Can Recover
A successful Bivens plaintiff can recover compensatory damages for physical harm, emotional distress, and economic losses caused by the violation. Punitive damages are also available, and the Supreme Court in Carlson v. Green called them “especially appropriate to redress the violation by a Government official of a citizen’s constitutional rights.”3Library of Congress. Carlson v. Green, 446 U.S. 14 (1980) A Bivens plaintiff also has the right to a jury trial.
The cost side is harder. Bivens actions are not covered by 42 U.S.C. § 1988(b), the fee-shifting statute that lets prevailing plaintiffs in Section 1983 cases recover their attorney fees. A Bivens winner generally pays their own lawyer, and federal civil rights litigation is expensive. That financial reality discourages claims where the damages are modest compared to the cost of years of federal litigation.8Office of the Law Revision Counsel. 42 U.S. Code 1988 – Proceedings in Vindication of Civil Rights
Bivens Compared to the FTCA
The Federal Tort Claims Act is the other main way to seek compensation when a federal employee harms you, and it works very differently. Picking the wrong path, or failing to preserve both, can cost you your claim.
- A Bivens action names the individual officer. An FTCA claim names the United States.
- Bivens requires a constitutional violation. The FTCA covers ordinary negligence and certain intentional torts under state tort law.
- Bivens claims can be filed directly in federal court. FTCA claims require you to file an administrative claim with the responsible agency first and wait for denial or six months of silence.
- Bivens gives you a jury. The FTCA does not; a judge decides.
- Bivens allows punitive damages. The FTCA prohibits them by statute.
- Officers in Bivens cases invoke qualified immunity. The government in FTCA cases invokes the discretionary function exception.
Congress treats these as parallel, complementary causes of action, and in most cases you can pursue both at once. There is a critical trap in 28 U.S.C. § 2676: a final judgment in an FTCA case bars any further action against the individual employee on the same subject matter. Get an FTCA judgment first and lose, and the Bivens claim is gone. The FTCA administrative process also takes time, and that time does not pause the Bivens statute of limitations. Sequencing matters.9Office of the Law Revision Counsel. 28 U.S. Code 2676 – Judgment as Bar
Bivens Compared to Section 1983
The easiest way to picture Bivens is as the federal-officer counterpart to 42 U.S.C. § 1983, which lets you sue state and local officials for constitutional violations. The huge difference is that Section 1983 was created by Congress, while Bivens was created by the courts. Section 1983 gets applied broadly because it has explicit statutory authorization. Bivens, as a judge-made remedy that the current Court views with suspicion, keeps shrinking.
Qualified immunity applies in both, and the “clearly established” standard is the same in each.7District of New Jersey. Section 1983 – Qualified Immunity The biggest practical gap is attorney fees. A prevailing Section 1983 plaintiff can recover fees under Section 1988. A prevailing Bivens plaintiff cannot.8Office of the Law Revision Counsel. 42 U.S. Code 1988 – Proceedings in Vindication of Civil Rights
An Extra Step for Federal Prisoners
Federal prisoners face an additional hurdle. The Prison Litigation Reform Act requires that prisoners exhaust all available administrative remedies before bringing any lawsuit about prison conditions in federal court, and courts have interpreted that requirement to include Bivens actions. For Bureau of Prisons inmates, this means finishing the BOP’s multi-step grievance process before a court will hear the case.10UC Davis Law Review. Does the Prison Litigation Reform Act’s Exhaustion Requirement Apply to Bivens Actions
Courts do not treat failure to exhaust as a technicality. A Bivens complaint filed by a prisoner who skipped the grievance process gets dismissed, and the time spent on that premature filing still counts against the statute of limitations. Combine that procedural barrier with the fact that the only currently recognized prisoner Bivens context is the Carlson Eighth Amendment medical care claim, and the odds facing an incarcerated plaintiff are steep.