A Bivens claim is a civil rights lawsuit filed against a federal official for violation of a person’s civil rights.
It’s an “implied cause of action,” which means it is not expressly authorized by statute, but the courts have authorized this type of lawsuit because there was otherwise no remedy for people who are hurt by federal agents who violate their civil rights.
In this article, we will discuss federal Bivens claims, including:
- How to file a Bivens claim,
- What an “implied cause of action” is, and
- The difference between Bivens claims and other types of civil rights lawsuits.
How Do You File a Bivens Claim Civil Rights Lawsuit?
The doctrine of sovereign immunity prevents anyone from filing a lawsuit against the government – state or federal – unless the government gives you permission to sue it. The King can do no wrong…
If you are hurt by a state law enforcement officer (or someone acting in concert with a state law enforcement officer) who violates your civil rights, you are authorized to sue them for damages in federal court by 42 USC § 1983.
The state of South Carolina has given us permission to sue state agencies for constitutional violations (and other causes of action) in the SC State Tort Claims Act, SC Code §15-78-60.
Congress has given us permission to sue federal agencies for constitutional violations (and other causes of action) in the Federal State Tort Claims Act.
Congress has not given the people permission to sue individual federal agents, however – before the case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics in 1971, there was no recourse for constitutional violations committed by federal agents…
In Bivens, however, the Court recognized that there was a wrong without a remedy and created a federal cause of action for civil rights violations committed by federal officers when there is no other recourse (if there is another remedy available, there is no Bivens claim).
Who Can File a Bivens Claim?
Any person whose rights were violated by a federal agent can file a Bivens claim in federal court asking for compensation.
Who Can a Bivens Action Be Filed Against?
A Bivens claim is filed against the individual federal officer who caused the harm, but some agencies are protected from civil rights lawsuits (for example, public health workers cannot be sued in a Bivens action).
Examples of federal agents who can be sued under Bivens include:
- Narcotics officers at the DEA (Drug Enforcement Agency),
- Federal prison guards,
- FBI agents, or
Employees of some agencies cannot be sued under Bivens because there is an alternate remedy available, or they are protected by law – these include:
- DOJ (Department of Justice) employees,
- FDIC (Federal Deposit Insurance Corporation) employees, and
- ICE (Immigration and Customs Enforcement) agents.
The individual federal agent must be the subject of the lawsuit – the agency that the federal agent works for cannot be sued under Bivens because there is already a cause of action authorized for federal agencies under the Federal Tort Claims Act.
The defendant in a Bivens action must be a federal employee – private companies or their employees cannot be sued because there are already causes of action available against them.
Types of Damages in a Bivens Claim
The plaintiff in a Bivens action can recover monetary damages including compensatory and punitive damages, which may include:
- Past and future medical expenses,
- Lost wages and lost earning potential,
- Pain and suffering,
- Punitive damages, or
- Wrongful death damages.
Attorney fees cannot be recovered in a Bivens claim (attorney fees can be recovered in a 1983 action because 42 USC §1988 expressly authorizes it).
What’s the Difference Between a Bivens Claim and a §1983 Action?
In a §1983 action, you sue an individual who is acting “under color of state law” to deprive you of your civil rights, while in a Bivens claim you are suing a federal agent who has deprived you of your civil rights.
Although both are federal causes of action, one is against a state actor and the other is against a federal actor.
Another difference is that 1983 actions are expressly authorized by federal law, while a Bivens claim is an “implied cause of action” created by the courts.
What’s the Difference Between a Bivens Claim and a Tort Claims Act Lawsuit?
Under the SC State Tort Claims Act, the state of South Carolina has given you permission to sue it, waiving its sovereign immunity, but only as to certain types of wrongs that are listed in the statute.
Under the Federal State Tort Claims Act, the United States has given you permission to sue it, waiving its sovereign immunity, but only as to certain types of wrongs that are listed in the statute.
In either case, you must file the lawsuit against the government entity and not the individual government employee who caused the harm. If you are going to sue the individual who caused the harm, you must file 1) a 1983 action (for a state agent) or 2) a Bivens action (for a federal agent).
In many cases, you may file a combination of these causes of action – for example, a claim under the Federal State Tort Claims Act (for the agency) and a Bivens claim (for the individuals), or a claim under the State Tort Claims Act (for the agency) and a 1983 action (for the individuals).
Questions About a Bivens Claim?
The Charleston, SC civil rights attorneys at the Boles Law Firm can help you determine liability, gather the evidence you will need in court, negotiate with the government, and recover the maximum compensation that you are entitled to under state or federal law for your injuries.
Call us at 843-576-5775 to schedule an appointment for a free consultation at our North Charleston or Walterboro offices or send us a message through our website.