Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
Bivens: suing a federal officer for a constitutional violation, and why it almost never works now
A federal claim in United States district courts · Last verified August 26, 2026
The civil rights statute that lets you sue a police officer reaches state actors only. If the officer who searched your house was federal — FBI, DEA, Border Patrol, a federal prison guard — that statute does nothing for you.
Bivens is the answer, and it is a shrinking one. The Supreme Court created the remedy in 1971, extended it twice by 1980, and has refused every proposed extension since. After 2022 the question is close to settled in the negative: a court may not recognise a Bivens claim in a new context if there is even one reason to think Congress is better placed to decide.
Say this plainly to anyone who asks: the doctrine is all but closed.
What the claim is
A federal officer violated your constitutional rights and you want damages from them personally.
The three contexts where the claim survives:
- Fourth Amendment — an unreasonable search or seizure by federal agents, which is the original Bivens case.
- Fifth Amendment equal protection — sex discrimination by a federal official, from Davis v. Passman.
- Eighth Amendment — failure to provide medical care to a federal prisoner, from Carlson v. Green.
Anything meaningfully different from those three is a "new context," and new contexts lose.
Where the right comes from — and how close to closed it is
Judicially created. No statute authorises it. In 1971 the Court held that a violation of the Fourth Amendment by federal agents gives rise to a damages action, reasoning that historically damages have been the ordinary remedy for an invasion of personal interests.
It extended that twice, in 1979 and 1980. Then it stopped.
The modern framework asks two questions. First, does the claim arise in a new context — meaningfully different from the three recognised cases? Second, if so, do special factors counsel hesitation, including whether any alternative remedial structure exists?
Egbert v. Boule (2022) collapsed that into one question, and made it nearly dispositive. The Court asked whether there is "any reason to think that Congress might be better equipped" to weigh the costs and benefits of a damages remedy — and held a court may not extend Bivens if there is "even a single reason to pause."
Egbert itself rejected a Fourth Amendment excessive-force claim against a Border Patrol agent — in other words, a claim in the same amendment as the original case — because the border-security context differed. It also rejected a First Amendment retaliation claim; **the Court has never recognised a First Amendment Bivens claim.**
The existence of an internal agency grievance process counts as an alternative remedial structure, even if it pays the plaintiff nothing.
What a plaintiff has to prove
Where the claim falls inside one of the three surviving contexts: conduct by a federal officer acting under colour of federal authority, a violation of the specific constitutional right recognised for that context, and resulting damages.
Outside those contexts, the elements rarely get argued. The new-context and special-factors analysis disposes of the case first.
How long you have to file
No federal period. Courts borrow the forum state's personal-injury limitations period, exactly as they do for the state-actor civil rights statute — typically one to six years.
Federal law governs accrual: the claim accrues when the plaintiff knows or has reason to know of the injury.
What has to happen before you file
Nothing for the ordinary claim.
A federal prisoner suing over prison conditions must exhaust the Bureau of Prisons administrative remedy programme, under the prison litigation statute — the same requirement that applies to state prisoners.
Note the irony: exhausting that grievance process is required, and its existence is then cited as an alternative remedial structure counselling against recognising the claim at all.
Who can be sued — and who cannot
Individual federal officers only.
Not the United States and not federal agencies — the Court held so in FDIC v. Meyer. A tort claim against the government itself runs through the Federal Tort Claims Act, which is a different statute with different rules.
Not private companies operating federal facilities, such as a privately run halfway house or prison, under Correctional Services Corp. v. Malesko.
The ordering matters, and it is a trap. Officers have qualified immunity, but Egbert and Ziglar v. Abbasi make clear the new-context question comes first. A court can dismiss because no cause of action exists without ever reaching whether the right was clearly established. A plaintiff who has excellent authority on the merits can still lose at a stage before the merits.
Common defenses
No cause of action — new context plus any special factor. This is the defense, and it usually ends the case.
An alternative remedial structure exists — an agency grievance process, a statutory scheme, an injunctive route.
Qualified immunity, if the court reaches it.
Absolute immunity for certain functions.
Limitations, on the borrowed state period.
What the claim pays
Compensatory damages against the individual officer, and in principle punitive damages.
**No injunctive relief through Bivens itself.** Equitable relief against federal officers proceeds under other doctrines.
No attorney's fees. The fee statute that covers civil rights claims against state actors does not apply to a Bivens action. A plaintiff who wins recovers damages and pays their own lawyer out of them — a significant practical deterrent that is easy to overlook when comparing this claim to its state-actor counterpart.
Jury trial available.
What people get wrong
**"Bivens is the federal version of the civil rights statute."** Only loosely, and the difference is the whole story. One is a broadly available statute Congress wrote; the other is a shrinking judge-made remedy confined to three contexts.
"I can sue the agency." No — individual officers only.
**"First Amendment retaliation by a federal officer is a Bivens claim."** The Court has never so held and refused it in Egbert.
"Attorney's fees are available like they are under § 1988." No.
"It's a Fourth Amendment claim, so it's within the original case." Not necessarily. Egbert rejected a Fourth Amendment claim because the context differed.
"Qualified immunity is the hurdle." It is the second hurdle. Whether a cause of action exists at all comes first.
Where it came from
Webster Bivens was arrested in his apartment in front of his family by federal narcotics agents acting without a warrant. He had no statutory remedy — the civil rights statute covered only state actors, and the tort claims act did not then reach intentional torts by law enforcement. The Court held in 1971 that the Constitution itself supported a damages action.
Two extensions followed quickly: gender discrimination by a congressman in 1979, and deliberate indifference to a federal prisoner's medical needs in 1980.
Then the Court's attitude inverted. Later decisions describe the creation of implied damages remedies as a "disfavored" judicial activity, and a series of cases refused extensions across military affairs, social security administration, private prison operators, immigration detention, cross-border shootings, and border-security enforcement.
Ziglar v. Abbasi (2017) formalised the new-context framework; Egbert (2022) tightened it to a single-reason-to-pause standard that lower courts read as near-categorical.
Some Justices have invited reconsideration of whether even the three surviving contexts should stand. That is the question worth watching — not whether Bivens expands, but whether it contracts further.
Common questions
Can I sue a federal officer the way I would sue a police officer?
Not the same way. The civil rights statute reaches only state and local officers. Against federal officers you need a Bivens claim, which exists in three narrow contexts and which courts refuse to extend.
What are the three contexts where a Bivens claim still works?
Fourth Amendment unreasonable search and seizure, Fifth Amendment sex discrimination by a federal official, and Eighth Amendment failure to provide medical care to a federal prisoner.
Can I sue the FBI or the Bureau of Prisons itself?
No. Bivens reaches individual officers only. Claims against the United States or its agencies run through the Federal Tort Claims Act.
Can I recover attorney's fees if I win?
No. The fee-shifting statute for civil rights claims does not cover Bivens actions, so fees come out of your recovery.
What is the deadline?
There is no federal period. Courts borrow the forum state's personal-injury limitations period, and federal law decides when the claim accrued.