Bivens Action

What It Is

A Bivens action allows individuals to sue federal officials for constitutional violations. It’s the judicially created counterpart to § 1983, which only covers state actors.

Named after Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), where the Supreme Court recognized an implied cause of action for a Fourth Amendment violation by federal narcotics agents.

Why It Matters Less Than You’d Think

The Supreme Court has recognized Bivens claims in exactly three contexts:

1. Fourth Amendment — unreasonable search and seizure (Bivens itself, 1971)
2. Fifth Amendment — gender discrimination in employment (Davis v. Passman, 442 U.S. 228 (1979))
3. Eighth Amendment — inadequate medical care for a prisoner (Carlson v. Green, 446 U.S. 14 (1980))

Since 1980, the Court has refused to extend Bivens to any new context. Every single attempt has been rejected. The Court has made clear it considers Bivens a “disfavored” judicial activity.

The Ziglar Framework

Ziglar v. Abbasi, 582 U.S. 120 (2017) effectively froze Bivens. The Court created a two-step test:

1. Is this a “new context” — meaning it differs in any meaningful way from the three recognized Bivens scenarios?
2. If yes, are there “special factors counseling hesitation” against extending Bivens?

The answer to both questions is almost always yes. If your claim involves different officials, different constitutional provisions, different factual circumstances, or national security — it’s a “new context,” and the Court won’t create a new Bivens remedy.

The Practical Reality

If a federal agent violates your rights, your options are extremely limited:

• FTCA (Federal Tort Claims Act) — Allows tort suits against the federal government, but excludes intentional torts by law enforcement (with narrow exceptions)
• Criminal prosecution — The DOJ can prosecute federal officers under 18 U.S.C. § 242, but this is rare
• Administrative complaints — File with the agency’s inspector general
• Bivens — Technically still exists in its three narrow contexts, but even those are being questioned

Justice Thomas’s concurrence in Ziglar questioned whether Bivens should exist at all. The writing is on the wall.

Key Cases

• Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) — Created the implied cause of action
• Ziglar v. Abbasi, 582 U.S. 120 (2017) — Effectively froze Bivens expansion
• Egbert v. Boule, 596 U.S. 482 (2022) — Further narrowed Bivens; no claim for First Amendment retaliation or Fourth Amendment excessive force by border agent