A Bivens claim is a civil rights lawsuit for monetary damages against federal officials. You can file a lawsuit if your civil rights have been violated by a federal worker.
The claim allows you to recover compensation for your losses. It relies on an implied cause of action for civil rights violations. This means you cannot pursue a Bivens lawsuit if there is another remedy.
1. What is a Bivens claim?
A Bivens claim is a civil rights lawsuit. You can file a claim if your civil rights have been constitutionally violated by a federal agent. Successful claims lead to monetary damages. The federal officer can be held personally liable.
Bivens claims get their name from the court case that created them.1 They are different from other lawsuits that were created by a statute. Instead, courts created the lawsuits by implying a cause of action. The claim provides a remedy when federal agents violate U.S. law.
You can file this civil action against a federal officer who violated your civil rights. Civil rights are rights guaranteed by federal law or the U.S. Constitution. Examples of constitutional violations that can lead to liability include:
- an unreasonable search with no probable cause by drug agents and law enforcement in violation of Fourth Amendment rights,2
- firing you from a U.S. agency after you express your political opinion (“free speech”) in violation of the First Amendment,3
- depriving a prisoner of medical care in violation of the Eighth Amendment, and
- depriving you of the right to remain silent and due process, guaranteed by the Fifth Amendment.4
Bivens constitutional claims are very similar to civil rights claims under 42 U.S.C. Section 1983. However, Section 1983 claims only apply to unconstitutional wrongdoing
- by state actors,
- not federal ones.5
2. What is an implied cause of action?
Courts can imply a right of action when they see that a law has been violated but there is no remedy. If courts do not imply a cause of action, there would be no remedy. Without a remedy, there could be no lawsuit. Without a lawsuit, the defendant could violate the law again and again, without repercussion.
Courts only imply a cause of action as a last resort, however. If there is any other remedy available, they will refuse to imply one. They will also refuse to imply one if there are reasons not to. Bivens cases are no exception. If there is an alternative remedy available, courts will dismiss the lawsuit. They will also dismiss the claims if there are reasons to do so, such as when:
- the claim stems from injuries suffered during military service,6 or
- there are national security considerations.7
ICE is immune to Bivens claims.
3. Against whom can I make a Bivens claim?
Bivens claims can be filed in district court (lower courts in the U.S. judicial system) against individual federal officers. These individual officers have to work in agencies that are not protected from lawsuits. Officers susceptible to a claim include:
- narcotics officers at the Drug Enforcement Agency (DEA),8
- federal prison officials,9 and
- congressmen.10
Some agencies are shielded from lawsuits by federal law. Certain statutes and regulations provide the exclusive remedies that you can recover against these agencies.
Example: Bivens lawsuits cannot be filed against Public Health Service workers. There is a federal statute authorizing the exclusive remedy for their misconduct.11
When Congress does not provide a remedy for specific civil rights violations, you cannot succeed in a claim.12 You also cannot pursue a Bivens lawsuit if there is an alternative remedy, however inadequate.13
Bivens lawsuits also cannot be filed against government entities for violations of constitutional rights. This means the following agencies cannot be sued:
- Immigration and Customs Enforcement (ICE),
- Federal Deposit Insurance Corporation (FDIC),14 and
- Department of Justice (DOJ).
In many cases, this is because the Federal Torts Claims Act already provides a remedy against them. However, the workers at these agencies can be sued as individuals.
Non-government parties cannot be sued in Bivens actions. This includes:
- private companies,15 and
- employees of private companies.16
These people and companies can already be sued in court. Therefore, Bivens actions do not apply to them. There is already another remedy and proper proceedings for you to use.
Bivens lawsuits can be filed in state court.
4. Can I file in state court?
Bivens lawsuits can be filed in state court. However, the federal official being sued has the right to remove the case to federal court.17
5. What damages could I receive?
These actions aim to recover monetary damages remedies from federal agents. This includes compensation as well as punitive damages.
The compensation aims to cover your:
- medical bills,
- lost wages from the violation,
- reduced earning capacity from any long-term injuries,
- pain and suffering, including the emotional trauma of the civil rights violation,
- lost reputation, and
- presumed damages for the loss of liberty from the civil rights violation.
Punitive damages, on the other hand, aim to punish the offending government official. They are typically only reserved for the most egregious conduct.
Attorney’s fees are not recoverable as a Bivens remedy.18 This is one of the ways that the cases are different from cases filed under 42 U.S.C. Section 1983.
To recover these damages, you have to overcome the qualified immunity defense. Qualified immunity protects government agents from money damages unless:
- they violated your constitutional rights, and
- those rights were so clearly established that a reasonable person would have known they were being violated.
Note that certain agents have absolute immunity.
6. What’s the difference between a Bivens action and a 1983 claim?
Bivens vs 1983 are related but different legal causes of action. In Bivens actions, you sue defendants acting on behalf of the federal government – not state government. In contrast under 1983 claims, you sue defendants acting on behalf of state or local government – not federal government.19
Common examples of state actors in a 1983 claim are city police officers who violated your federal rights by performing an unlawful search or coercing a confession. Note that you may be able to sue federal officials through a 1983 claim if they acted alongside state or local officials.20
Additional resources
For more in-depth information, refer to these scholarly articles:
- Was Bivens Necessary? – Notre Dame Law Review.
- The Myth of Personal Liability: Who Pays When Bivens Claims Succeed – Stanford Law Review.
- Going Rogue: The Supreme Court’s Newfound Hostility to Policy-Based Bivens Claims – Notre Dame Law Review.
- Bivens and the Ancien Regime – Notre Dame Law Review.
- Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation against Federal Officers – Notre Dame Law Review.
Legal References:
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (United States Supreme Court, 1971)(Supreme Court case involving “special factors” tests and “new context” inquiries; see concurring and dissenting opinions as well); Bivens, 276 F. Supp. 12 (E.D. New York 1967); affirmed, 409 F.2d 718 (Second Circuit, 1969). See also Ministerio Roca Solida v. McKelvey, (9th Cir. 2015) 820 F.3d 1090 (Bivens does not encompass injunctive relief and declaratory relief where the equitable relief sought requires official government action.)
- Bivens v. Six Unknown Named Agents of Fed Bureau of Narcotics, Supra (Fourth Amendment); 42 U.S.C. § 1983; see the Federal Tort Claims Act (FTCA), which eliminates common law grounds for suing federal officers; see also Molitor v. Kaneland Community Unit Dist. (1959) 18 Iil.2d 11 163 N.E.2d 89; see also Brown v. General Servs. Admin., (1976) 425 U.S. 820; see also Ashcroft v. Mattis, (1977) 431 U.S. 171.
- Bush v. Lucas, 462 U.S. 367 (1983).
- Carlson v. Green, 446 U.S. 14 (the Supreme Court, 1980).
- Wheeldin v. Wheeler, 373 U.S. 647 (1963).
- Chappell v. Wallace, 462 U.S. 296 (1983).
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, Supra (the Federal Bureau of Narcotics was a predecessor to the DEA.gov).
- Carlson v. Green, Supra.
- Davis v. Passman, 442 U.S. 228 (1979).
- Hui v. Castaneda, 130 S. Ct. 1845 (2010) (42 U.S.C. § 233(a)).
- Schweiker v. Chilicky, 487 U.S. 412 (1988) (the Social Security Administration ended benefits to 200,000 people for months before Congress passed a law to reinstate them. The law, however, did not provide a remedy to the victims).
- Bush v. Lucas, Supra (Civil Service Reform Act allows for administrative review of wrongful terminations by federal agencies).
- FDIC v. Meyer, 510 U.S. 471 (1994) (involving the Savings and Loan Insurance Corporation, the predecessor to the FDIC).
- Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) (private prison company).
- Minneci v. Pollard, 132 S. Ct. 617 (2012).
- 28 U.S.C. § 1442(a)(1).
- See for example United States v Hall, 773 F.2d 703 (6th Cir. 1985) (the “clear majority of courts” agree that the “federal government is not liable for attorney fees under section 1988 for pure Bivens actions”).
- Pursuant to the statutory law 42 USC § 1983, the defendants (local or state officials) must be acting “under color of state law” for civil rights violations; see also Wallace v. Chappell (9th Cir. Court of Appeals, 1981) 661 F.2d 729; see also Jenkins v. Averett, (4th Cir. 1970) 424 F.2d 1228; see also Bryan v. Jones, (5th Cir.) 530 F.2d 1210.
- Tongol v. Usery, (9th Cir. 1979) 601 F.2d 1091.