What Is a Bivens Action? Suing Federal Officers for Civil Rights Violations

A Bivens action is a type of legal claim named for a 1971 U.S. Supreme Court case that allows people to hold federal officials accountable for constitutional violations. Congress did not enact a law creating a Bivens action; it’s based on common law.

Bivens actions are narrow in scope, but represent an important legal remedy. Understanding their scope and limits is essential for anyone considering a Bivens action.

If you are considering filing a Bivens action, it is advisable to consult an experienced civil rights attorney due to the complexities involved.

What Is a Bivens Action?

A Bivens action is a judge-made doctrine based on a U.S. Supreme Court case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971). At its most basic, a Bivens action is a type of federal lawsuit that allows individuals to sue federal officers who violate their constitutional rights.

Individuals can sue federal law enforcement officers in their individual capacities for money damages arising from violations of the U.S. Constitution. Injunctive relief may also be available. Bivens claims have been construed to apply only in a narrow set of circumstances.

Background of the Bivens Case

The Bivens case involved federal narcotics officers who unlawfully entered Webster Bivens’ home, searched it, and arrested him without a warrant.

Bivens argued that these actions violated his Fourth Amendment rights. He further contended that he should be able to sue the officers directly for damages, even though no federal statute explicitly provided that remedy.

The Court ruled that the U.S. Constitution contains an implied cause of action for damages even without a specific statute authorizing lawsuits against federal officers. This landmark decision paved the way for individuals to sue federal officers personally for constitutional violations.

Recognized Categories of Bivens Claims

Under Bivens and related cases decided since that time, there are only a few categories where Bivens claims are allowed:

• Fourth Amendment. This prohibits unreasonable searches and seizures, unlawful arrests, warrantless entries, and the use of excessive force.
• Fifth Amendment. This provides for equal protection and due process, which protect against discrimination, e.g., gender discrimination, as in Davis v. Passman (1979), and wrongful detention.
• Eighth Amendment. This amendment protects against cruel and unusual punishment. This often arises in cases involving the denial of medical care to detainees or prisoners, e.g., Carlson v. Green (1980).

Outside these categories, courts are generally reluctant to extend Bivens‘ reach into new contexts. Subsequent U.S. Supreme Court cases, particularly Ziglar v. Abbasi (2017) and Egbert v. Boule (2022), have made it more difficult to expand Bivens remedies.

Common Examples of Bivens Claims

Common violations that lead to a Bivens action include excessive force, unlawful searches, and other constitutional violations.

For example, if a federal agent unlawfully enters your home without a warrant and conducts a search, violating the Fourth Amendment, you may have a Bivens claim. Or, if a federal prison official uses excessive force against an inmate, violating the Eighth Amendment prohibition against cruel and unusual punishment, the inmate may pursue a Bivens action for damages.

How Does a Bivens Action Differ from a Section 1983 Claim?

Section 1983 lawsuits are similar to Bivens actions in the types of conduct they protect against. However, Section 1983 cases apply to state and local officials, not federal officials. Section 1983 cases are based on a federal statute, while a Bivens action is based on an implied constitutional right.

Additionally, a Section 1983 case is based on broad, well-developed case law and Congressional support. On the other hand, a Bivens action is narrower, and the contexts to which it applies have narrowed over the years. Bivens plaintiffs face higher hurdles.

How Does a Bivens Action Differ from an FTCA Claim?

A claim under the Federal Tort Claims Act (FTCA) allows a claimant to sue the U.S. government for torts like negligence, assault, or wrongful death caused by federal employees.

To file an FTCA claim, you must first exhaust all administrative remedies with the agency before the time limits of the claim period expire. Bivens claims do not require exhaustion of administrative remedies and allow jury trials (an FTCA claim requires a bench trial).

Although compensatory damages are available for an FTCA claim, punitive damages and injunctive relief are not available.

Sometimes attorneys bring both Bivens claims and FTCA claims in the same lawsuit. Because the United States pays damages in an FTCA claim, plaintiffs are more likely to recover in FTCA cases. However, the United States can indemnify federal employees in a Bivens action after a damages award.

Many considerations must be taken into account to determine the type of action to bring, and an experienced civil rights attorney can help you weigh your options.

Who Can and Cannot Be Sued in a Bivens Action?

The U.S. Supreme Court has indicated in recent years that if it were called to decide the case today, it would decline to find any implied causes of action in the U.S. Constitution.

However, they have not taken the step to overrule the case. Therefore, you must know who can sue and who cannot be sued if this type of claim is a viable option for you or a loved one.

Who Can Sue

• Any person whose federal constitutional rights were violated by a federal officer acting under the color of federal law
• Citizens and noncitizens
• Estate representatives suing on behalf of a deceased plaintiff

Who Cannot Be Sued

You can only sue federal officers in their official capacities, e.g., FBI agents, Border Patrol agents, federal corrections officers, and DEA agents.

Under Bivens, you cannot sue the United States government itself, federal agencies, federal officers in their official capacity, or private entities acting under federal contracts.

Bivens Actions and the Qualified Immunity Defense

Federal officers will, in most cases, raise the qualified immunity defense. This doctrine protects officers from liability unless they violated a constitutional right that was “clearly established” at the time. In practice, this is a major barrier to plaintiffs bringing successful Bivens cases.

If an officer’s actions, for example, fall into a “gray area” where the law is unsettled, a court may dismiss the case on qualified immunity grounds even if the officer acted wrongfully.

The Process for Bringing a Bivens Claim

Plaintiffs in Bivens actions generally must allege the following:

1. Constitutional violation. That federal officer’s conduct violated the plaintiff’s constitutionally protected right.
2. Federal action. That the misconduct was committed by a federal official acting under official authority.
3. No alternative remedy. That the plaintiff lacks a statutory cause of action, or that an available cause of action is inadequate.
4. Damages. An appropriate remedy, namely damages, is available for harm that may include physical injury, emotional distress, or loss of liberty.

In a successful Bivens action, the plaintiff can recover compensatory damages for medical costs, lost wages, and pain and suffering. In some cases, punitive damages can be awarded to punish and deter misconduct.

Before bringing a claim in federal court, some claims must proceed through the administrative process, such as prisoner claims under the Prison Litigation Reform Act, before suit may be filed.

Be sure that your claim does not involve any administrative prerequisites before filing suit in federal court. District courts have jurisdiction over Bivens causes of action because they are civil rights actions arising under the U.S. Constitution.

When bringing the suit, you must be able to name the individual officers involved in the conduct. There is no respondeat superior (holding the employer liable) in Bivens actions, and there is judicial reluctance to recognize any new Bivens contexts.

The Statute of Limitations for a Bivens Action

A Bivens claim is a construct of case law. It does not have an express statute of limitations. In these cases, courts apply the applicable statute of limitations from the personal injury law of the state where the claim arose.

The limitations period generally begins when the plaintiff knew or should have known that the injury occurred (the accrual period). The clock can stop in special circumstances; this is called “tolling,” which is also governed by the law of the state where the claim arose.

Tolling could apply if the case involves minors, incapacitated persons, or if the cause of action was fraudulently concealed.

Seek Legal Help from a Civil Rights Lawyer

As soon as you know you may have a Bivens claim, you should seek legal help. If you believe a federal officer violated your constitutional rights during a search, detention, or while in federal custody, get legal help. The time for bringing claims is strict and varies by state.

An experienced civil rights lawyer in your area can also help you determine whether you have a Bivens claim or if you should bring the claim under the FTCA or a combination of both. Framing the case under the wrong theory can result in a dismissal of your case before a court can hear it on the merits. An attorney can assist you with the analysis and inform you of any limitations that may prevent you from making a successful claim.