A Bivens claim refers to a civil lawsuit for money damages directly against federal officers (in their individual capacities) for violating your constitutional rights. It’s named after the 1971 Supreme Court case Bivens v. Six Unknown Named Agents, where federal narcotics agents allegedly conducted a warrantless, violent home search. The Court allowed the plaintiff to sue them personally for damages under the Fourth Amendment, even though no statute authorized it.
That was huge. It meant you didn’t need Congress to create a cause of action — the Constitution itself could be enforced.
But since then?
The Supreme Court has spent the last 25 years slowly killing Bivens without overruling it. Today, federal courts call it a “disfavored judicial activity.”
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When You Can Still Bring a Bivens Claim (Extremely Limited)
The Supreme Court has only clearly approved Bivens remedies in three situations:
Amendment Context Case
4th Amendment Warrantless home search / excessive force Bivens (1971)
5th Amendment Sex discrimination by federal employer Davis v. Passman (1979)
8th Amendment Federal prisoner denied medical care Carlson v. Green (1980)
If your facts don’t fit almost exactly into one of those buckets, you will almost certainly lose.
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The Modern Two-Step Test (This Is Where Most Claims Die)
Courts must now ask:
Step 1 — New Context?
Is your claim meaningfully different from one of the original recognized Bivens cases?
If yes → proceed to Step 2.
Step 2 — Any Special Reasons to Deny?
If Congress already created a process (like FTCA, habeas, internal grievance, etc.), or if separation-of-powers concerns exist → courts must refuse to “extend Bivens.”
Result? Almost all modern claims end at Step 2.
For example: immigration detention, private contractors, federal policy decisions, national security — all dead on arrival.
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Realistic Examples of What Still Might Survive
✅ Maybe still viable if:
Border Patrol agent beats your door in and assaults you during a home raid (mirrors classic Bivens)
You’re a federal prisoner denied medical care so severely it qualifies as cruel and unusual punishment (Carlson-type)
❌ Likely dead today:
Federal retaliation or First Amendment claims
Federal wrongful prosecution claims
Anything involving immigration, military, or policy discretion
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Should You Even File a Bivens Claim?
Yes — but only if you have facts matching one of the three approved scenarios and you are prepared for the government to immediately move to dismiss.
Smart lawyers also file an FTCA claim (Federal Tort Claims Act) in the alternative, because FTCA is against the U.S. itself, not the individual officer — and courts prefer it.
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Final Takeaway
Bivens is not dead — just nearly extinct. The Supreme Court has made clear it will not expand the remedy beyond the narrow historical cases. A federal constitutional damages claim may survive, but only if it tracks the original fact patterns almost exactly.
Bottom line:
If you don’t have a federal officer personally, acting outside the law, in a way that mirrors one of the three original Bivens situations — your claim probably dies at the motion-to-dismiss stage.