A Bivens claim is a civil rights lawsuit for monetary damages against federal officials. Victims can file a lawsuit if their civil rights have been violated by a federal worker.
The claim allows victims to recover compensation for their losses. It relies on an implied cause of action for civil rights violations. This means victims cannot pursue a Bivens lawsuit if there is another remedy.
1. What is a Bivens claim?
A Bivens claim is a civil rights lawsuit. Victims can file one if their 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.
Victims can file this civil action against a federal officer who violated their 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 someone from a U.S. agency after they express their 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 people 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
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
Some agencies are shielded from lawsuits by federal law. Certain statutes and regulations provide the exclusive remedies that victims 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 did not provide a remedy for specific civil rights violations, victims cannot succeed in a claim.12 They 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 victims to use.
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 the victim’s:
- 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, victims have to overcome the qualified immunity defense. Qualified immunity protects government agents from money damages unless:
- they violated the victim’s 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 and a 1983 claim?
In Bivens actions, petitioners sue defendants acting on behalf of the federal government – not state government. In contrast under 1983 claims, petitioners 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 the petitioner’s federal rights by performing an unlawful search or coercing a confession. Note that victims may be able to sue federal officials through a 1983 claim if they acted alongside state or local officials.20
- 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 e.g., 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.