Reckoning With Bivens

In the wake of the Chicago South Shore raid—which reportedly saw masked U.S. agents rappelling down from a Black Hawk helicopter, bursting into a 130-unit building, kicking down doors, zip-tying and holding American citizens at gunpoint, and the detention of 37 Venezuelan nationals—a law school classmate asked me: Why isn’t every one of these raids—where officers trash property and terrorize residents—a potential Bivens case?

The answer, chilling, at least to me, is: Because my team and I spent decades at the Department of Justice making sure that such lawsuits would be dismissed, typically without trial, and often even without discovery.

For half a century, Bivens v. Six Unknown Named Agents has been hailed as the primary safeguard against unconstitutional actions by federal officers. Bivens permitted victims of these actions to seek money damages from individual federal officers directly under the Constitution. These actions are often analogized to the far more common “Section 1983” claims available against state and local officials under the Civil Rights Act of 1871. But accountability under Bivens is far more constrained than many lawyers might assume. Certainly, if you ask the general public whether they think there is a way to file a civil suit and receive compensation—whether from individual officers or the United States more broadly—for constitutional violations such as excessive or deadly force by federal actors, the general belief is: of course. Yet constitutional violations hardly ever result in the payment of damages. The reality is the behemoth that was Bivens now no longer serves victims of constitutional harms, the federal workforce as a whole, individual officers in particular, or society at large. Those in the United States must look somewhere else for recompense, deterrence, settled litigation expectations, and institutional and jurisprudential order.

Here’s why.

In October, a certiorari petition was filed in Nielsen v. Watanabe—a case concerning a federal inmate (Kekai Watanabe) who suffered a fractured coccyx in a prison gang fight, causing chronic pain, but was not sent to the hospital. (Wantanabe’s counsel was granted an extension of time to respond until Jan. 5, 2026.) Buried at the end, the petitioner mused that the Supreme Court “may wish to consider whether it should dispense with Bivens altogether.”

To be clear, for many of the reasons petitioner raises, the case presented an exceedingly poor vehicle for individual-capacity remedy under any construction. Any failure in Watanabe’s medical treatment was likely institutional—in my three decades at Justice, I never encountered a scenario where a lengthy delay in carceral care was the product of malfeasance by an individual or rogue official. Certainly, only the United States could come close to satisfying the $3 million in damages sought by Watanabe. Nonetheless, a split panel of the U.S. Court of Appeals for the Ninth Circuit reversed a district court’s decision to dismiss the Bivens claim. And although rehearing and rehearing en banc were subsequently denied, permitting the Bivens claim to proceed, 11 judges dissented from that decision

On behalf of the Nielsen petitioner, Jeffrey Lamken and his colleagues correctly argue that under current Supreme Court precedent, the Ninth Circuit’s decision is flatly wrong. Lamken, former assistant to the solicitor general and frequent Supreme Court participant, is himself no stranger to Bivens litigation, having successfully argued Hasty/Ziglar v. Abbasi, a landmark 2017 Supreme Court Bivens case arising out of the post-9/11 era. (I worked on that case as well.) In light of Supreme Court decision after decision cutting back on Bivens, even in arenas that arguably on their face involve routine law enforcement operations, lower courts across the country continue to struggle to understand the question: What if anything is “left” of Bivens? To be fair to the judges in the panel majority in Nielsen, the Supreme Court has made it exceedingly difficult for lower courts to apply Bivens in the first instance, at least if they are to assume in good faith that there is anything left of implied constitutional tort remedies at all.

The Nielsen certiorari petition does a more than creditable job explaining (under every criterion imaginable) why the Supreme Court should reverse the Ninth Circuit. It soft-sells the revisit Bivens question itself, presumably because the attorneys who wrote it felt they owed it to their client to do so. But reversing the Ninth Circuit decision, and not Bivens itself, would simply perpetuate the immense problems surrounding the entire implied constitutional tort doctrine in the first instance—creating problems for judges, problems for litigants on all sides and across every gradient on the ideological spectrum, and problems for institutional and jurisprudential order.

The Court can—and legally should—reverse Bivens. The sooner the better.

When Bivens Had Teeth

When I joined the Justice Department in 1990, Bivens offered a modest but meaningful check on federal power. The Supreme Court had recognized that a citizen whose Fourth Amendment rights were violated by federal officers entering their home without a warrant could seek damages directly under the Constitution. Bivens itself was born of judicial fiction—a way for people to seek damages in federal court without a legislated remedy. The United States couldn’t be sued directly because of sovereign immunity. And while the United States might be sued under the Federal Tort Claims Act (FTCA) for certain common law torts, such as negligence or a car accident where an on-duty federal employee was at fault and a private person would be liable under state law—those didn’t typically have the breadth or gravitas of a constitutional claim. As the Bivens Court itself noted, “the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” The FTCA, and its pre-suit administrative remedies, can provide meaningful tort recovery. Its waiver, however, contains substantial limitations when compared against traditional civil litigation: It does not provide for punitive damages; cases are tried to a judge, not a jury; and a number of exceptions apply to exclude liability for particular torts, such as for malicious prosecution by prosecutors, or more significantly the discretionary function exception, are often a substantial barrier to recovery.

Despite the potential for some overlapping recovery for common law claims under the FTCA, Bivens and its early progeny allowed plaintiffs to recover damages from individual federal officers directly for constitutional torts. When it created the Bivens remedy, the Supreme Court strongly suggested it would be narrow. Justice John Marshall Harlan’s concurrence famously intoned, “For people in Bivens’ shoes, it is damages or nothing.” At that time, courts generally considered Bivens confined to narrow search and seizure contexts, a limitation that made practical sense. Potential Fourth Amendment violations tend to be the most “hands on.” Due to the dangerous and rapidly unfolding circumstances in which they often occur, unreasonable searches and seizures risk death and serious injury in a way that could not be remedied through traditional forms of equitable relief or other post-deprivation processes. And at least in the days before cell phones or body cams, they often occurred beyond the public eye. This all paved the way for lawsuits that were essentially high-stakes swearing matches. Unscrupulous plaintiffs (or unscrupulous officers) could perjure their way to a jury (or out of accountability) and hope for the best. Such litigation imposed heavy and at times unpredictable litigation burdens on both the parties and the courts.

Over time, with the Supreme Court’s imprimatur, the reach of Bivens grew—in 1979 to Fifth Amendment substantive due process claims for gender discrimination and in 1980, to Eighth Amendment failure to provide medical care to a federal prisoner having an acute asthma attack, causing his death.

Over the years, lower courts extended it further—to procedural due process, First Amendment expression, retaliation, and religion claims, and beyond. Eventually, nearly every conceivable action by the federal government with some constitutional hook, regardless of context, became a feeding ground for litigation against federal employees personally. And systemic litigation burdens grew accordingly.

I represented—or advised on the representation of—clients of all ranks, from all agencies, and across administrations and ideologies. Over the years, every sort of federal employee became a Bivens defendant: Janet Reno, Donald Rumsfeld, John Ashcroft, John Yoo, Stephen Miller, William Barr, Hillary Clinton, and Donald Trump. Admirals and generals. Drone operators, line-level FBI and ICE agents, prison wardens, chaplains, and guards. The list goes on. Judges eager to vindicate constitutional rights assumed that if there were an alleged wrong, there must be a personal-capacity remedy, even though Congress never created the federal equivalent to 42 U.S.C. § 1983 (the aforementioned Section 1983 claims).

Such an expansive view of Bivens chilled decision-making, making federal service a calculated risk. Imagine every policy decision inviting suit against a cabinet secretary and those carrying out policy mandates? Yet decades of Bivens litigation proceeded on that assumption. For line federal employees and their families, the costs of Bivens were stark and personal. Few if any expected to be sued for doing their jobs. But process servers appeared at their homes. Their assets, even their children’s education, were at stake. Many faced reputational damage and years, even decades, of litigation. Even mere exposure to suit forced disclosure on mortgage or other applications—essentially a scarlet letter for doing your job. Meritless suits—from pro se litigants or claimants with a political ax to grind—were common.

Still today, federal employees aren’t even guaranteed Justice Department representation—those decisions remain discretionary. And federal officials have never had an entitlement to indemnification. Each individual federal agency determines when, if ever, it will indemnify its officers. For instance, for Justice Department officers, such as FBI agents, indemnification is discretionary; the department “may” indemnify where it is in the United States’s interests to do so, and pre-judgment indemnification (for example, settlement) is prohibited absent “exceptional circumstances.” These discretionary administrative determinations are generally unreviewable by courts.

State or local officials, by contrast (and precisely because of the potential reach of Section 1983 liability), tend in most circumstances to benefit from automatic representation and guaranteed indemnification. With respect to the balance to be struck between having the federal government waive its liability for constitutional torts and preserving Bivens suits against individuals, Congress debated various proposals. Congress ultimately passed the Westfall Act in 1988—excluding constitutional torts from the exclusivity provisions that apply to common law torts under the FTCA (which can proceed against only the government and not the individual). In this process, some civil rights advocates, perhaps hoping for big jury awards akin to Section 1983 in Bivens actions, and worried about other limits on the United States’s FTCA liability, opposed broad immunity for federal employees and the substitution of the United States in their shoes. But even in its headiest days, Bivens was a sorry substitute for Section 1983, other forms of tort liability such as the FTCA, or any real make-whole relief. There was no entity liability and no attorneys’ fees for substantially prevailing, and individual indemnification was limited or nonexistent.

Meanwhile, courts and litigants expended enormous resources parsing Bivens’s boundaries without legislative guidance and in the face of a vacillating Supreme Court. Jury verdicts, the handful of times they happened, almost never converted to real recovery. Agents lacked resources, and, still, indemnification was not guaranteed. Moreover (as with civil rights claims under Section 1983), even with a jury verdict in hand, qualified immunity—barring recovery even where a constitutional violation occurred if the officer did not violate “clearly established” law—could intervene on appeal when the question was a legal one for the court, not the jury. Bivens’s claws cut deep.

Caging the Beast: Special Factors Doctrine

At the Justice Department, I was one of the principal architects of what became known as the “special factors” doctrine. This judicially created exception to Bivens was first applied modestly by the Supreme Court in 1988 in Schweiker v. Chilicky, a case in which plaintiffs’ Social Security disability benefits were wrongfully withheld. Though the benefits themselves had been reinstated, the plaintiffs sued under Bivens for emotional distress and other damages for the period they were denied. Relying on a line in Bivens itself, the Court refused to recognize a remedy given “special factors counseling hesitation in the absence of affirmative action by Congress.”

For nearly 10 years, while Chilicky was on the books, “special factors” went nowhere. It was certainly not the term of art it is today. When I first proposed the argument that “special factors” should bar a constitutional tort suit—in a case involving Agriculture Department officials in Arkansas accused of racial discrimination in distributing farm subsidies—my bosses were more than a little skeptical.

But we ran with it—and won, both in district court and at the Eighth Circuit.

For a young attorney, convinced of the argument’s legal soundness, and determined to vindicate her clients, that victory was elemental. Areas in which we made the argument began to expand (due primarily to the expansion of contexts in which plaintiffs began to pursue cases against federal officers). The governmental response, many would say over-response, to the Sept. 11, 2001, terrorist attacks proved groundbreaking. Civil rights litigators sought to remedy every infirmity in the United States’s response to 9/11—including those most appropriately addressed through political processes—through Bivens. In the early days we lost some cases, cases clearly inappropriate for ad hoc, judge-made law. But eventually the sense in the arguments began to take hold and courts listened. And brick by brick, case by case, we caged Bivens, limiting it to a handful of contexts.

Many folks, even some within the Justice Department, understandably questioned the bona fides of pushing the bounds of special factors. Didn’t its logical extension mean nothing was left of Bivens? And how did that square with Supreme Court precedent and stare decisis? Over time, though, that is exactly where the Supreme Court moved, increasingly recognizing limits on Bivens, including separation-of-powers considerations, national and border security, alternative processes, and policy discretion.

So, what’s the takeaway for anyone—including U.S. citizens—injured in that Chicago immigration raid? Based on a trinity of more recent Supreme Court rulings, the Court has green-lighted the argument that no damages remedy exists. In Ziglar v. Abbasi, the Court rejected a Bivens remedy to challenge confinement conditions, including strip searches and abuse claims, on detainees in the wake of the Sept. 11 attacks. In Hernandez v. Mesa, the Court held there was no damages remedy for the use of deadly force by a border patrol agent  standing in the United States that resulted in the death of a teenager on the Mexican side of the border. And in Egbert v. Boule, the Court refused to extend an implied remedy against a border patrol agent for excessive force and First Amendment retaliation claims by a U.S. citizen operating a business near a port of entry along the Canadian border. The Court’s “test,” on whether to imply a constitutional tort remedy, now boils down to a single question: Is there any reason to think that Congress might be better equipped to create a damages remedy? The practical consequence is that lower courts’ attempts to expand Bivens are no longer good law, and it is unclear whether even the narrow categories in which the Supreme Court recognized a remedy, including Bivens itself, would survive scrutiny under the modern analysis. As the Nielsen petition notes, Bivens is a “zombie,” dead on arrival in all but a scant handful of cases (of which, at the end of the day, and however the Supreme Court manages it, Nielsen is unlikely to be one).

When False Judicial Promise Meets Fading Executive Accountability

Perhaps that is as it should be. Congress never created a cause of action, and courts have long proved ill-suited to fashion one. Bivens was, from the start, a judicial workaround and, as it turns out, not an especially effective one, regardless of whose perspective is being considered: civil rights plaintiffs, civil rights defendants, or the bench. Bivens is a false promise of the very worst sort.

Moreover, as the Court has reminded us in declining to recognize Bivens remedies, there have traditionally been other checks on federal misconduct: inspectors general, internal investigations, and—where warranted—criminal prosecutions. Federal actors are more visible, more supervised, and more accountable than local law enforcement. They have traditionally been better trained and more rigorously screened, and bad behavior has traditionally been met with stern executive and congressional oversight.

When the horrors of Abu Ghraib—another failed Bivens context—surfaced, Congress intervened swiftly to prohibit waterboarding and limit interrogation practices. Congress has at other times acted when tort systems prove unworkable or ill-suited to address injuries that fairness and public opinion demand be remedied: Consider the Vaccine Injury Compensation Act, the Radiation Exposure Compensation Act, and the September 11th Victim Compensation Fund. These measures—including several recent amendments and extensions—illustrate that with enough motivation, Congress can design targeted tort and quasi-tort remedies that balance victim interests, public accountability and institutional stability all while insulating putative defendants who carry out vital federal functions.

But what happens when the internal checks and balances are removed? When the public doesn't trust federal officials to investigate wrongdoing and ensure accountability? When Congress abdicates oversight? When the government lowers its standards, cuts training, and sends poorly prepared agents into communities as ad hoc police? What happens when officers deploy in masks without badges, when their actions are shielded from scrutiny, and complaints can’t even be filed? When the United States fires career Justice Department prosecutors and enlists self-styled “patriots” to mete out “justice”?

That’s neither hyperbole nor hypothetical.

By executive order, on the second anniversary of the murder of George Floyd, the Biden administration established the National Law Enforcement Accountability Database (NLEAD), a central repository documenting instances of misconduct as well as commendations and awards for law enforcement officers. It was designed to strengthen hiring practices and increase transparency and accountability. While not without its challenges and critics, the NLEAD was regarded as a positive step by a diverse coalition of federal agencies and advocacy and human rights organizations. On the day of his inauguration, however, President Trump rescinded Biden’s order.

With no civil liability (for officers or the entity), with weakening internal oversight, and in the face of congressional silence, the United States now effectively has a system where federal power is nearly immune from accountability in any form other than political—and where the institutional checks meant to replace it are failing in real time.

Should Bivens, or Some Comparable Creature of Personal Liability, Be Unleashed?

Maybe so, some say. James E. Pfander and Rex N. Alley, for example, put forth the restoration of common law intentional tort claims against individual federal officers as worth considering. The answer to this question is certainly not open and shut: There is some intuitive appeal to the notion that a weak Bivens is better than no Bivens at all. What is clear is that the current Court has zero interest in resurrecting Bivens, and a majority has been happy to write it out of existence altogether. 

Is it true that without individual-capacity liability, there is no genuine individual deterrence for bad conduct? While reasonable minds can differ, in a system with robust checks and balances, that’s not my experience. In my three decades at the Department of Justice, I examined the conduct of federal officials in every conceivable factual scenario to determine whether or not federal representation would be authorized in their Bivens suits. I advised the alphabet soup of federal agencies about constitutional practices and directly represented and oversaw the representation of hundreds upon hundreds of clients in individual cases. I can count on one hand the number of times some truly rogue federal officer violated the Constitution. And news flash: Truly bad actors aren’t modifying their conduct because they think they might be tagged with Bivens liability!

Federal officers who are well screened, hired, and trained, including those in the immigration, law enforcement, and carceral settings, are—almost down to a person—hardworking, dedicated, competent folks. They may occasionally make mistakes, but they try their best to carry out their mission of public trust, especially where internal checks, balances, and recognition for doing a good job are robust. Again in my experience—and my former office considered almost every Bivens case filed throughout the country for purposes of determining federal represetation—in the rare case where a federal constitutional violation occurred, it was almost always because of a decision by higher-up policymakers in exceedingly difficult times who because of time or other factors did not necessarily understand the operational nuances involved, or where an agency culture lacking accountability and internal checks and balances prevailed.

Regardless, without a legislative remedy, any Bivens-type liability will fall prey to the same slings and arrows that cut it down this time around. The systemic costs of courts trying to reinvent Bivens (or its doppelganger), its unpredictable litigation burdens, and its failure to provide a meaningful remedy even at the best of times “counsel against” resurrecting it. But they also counsel against the status quo, that is, the Supreme Court continuing to gnaw at Bivens’s edges without grappling with its fundamental problems.

If the Supreme Court grants certiorari in Nielsen (as legally it should)—it should not simply write around the core problems of the 1971 relic. Rather it should call out Bivens’s false promise and reverse it. Overruling Bivens would preserve constitutional separation-of-powers and improve institutional order. Any “rule of law” it now represents, moreover, fails completely to protect the litigation expectations of either plaintiffs or defendants. If Bivens is left on the books, judicial integrity is threatened as lower courts struggle to assume a remedy that Supreme Court logic precludes. And absent that step, there is little incentive for Congress to craft or amend thoughtful, context-specific accountability measures.

When federal hands violate the Constitution, it makes good sense for the government itself—not some random officer—to pay the price. And not simply the political price—the actual taxpayer dollars-and-cents cost of government abuse. No lone federal agent could possibly remedy any unconstitutional conduct at the South Street Apartments, or anywhere else federal agents may “run amok.” With respect to Chicago, at least some members of Congress seem to have an appetite for oversight. And when government abuse escalates without accountability, or where government programs result in individual harms, history (such as Abu Ghraib, like radiation exposure from nuclear testing, like the passage of the Vaccine Act, or the FTCA itself) suggests that public outcry can fuel actual congressional oversight.

If the Supreme Court closes the Bivens gate permanently, as it can do in Nielsen, it may open the door for Congress to consider principled, reliable legislative options. The easiest fix, and the one most palatable to diverse equity holders, may be a simple adjustment to provide FTCA-type liability for constitutional torts. That’s obviously not the only option. Again, some observers suggest looking back to the past to try and restore individual liability as a matter of common law. Others argue for broadening Section 1983 to include federal conduct. Others, like myself, favor various ways to broaden the FTCA. When Congress gets to the point of discussing legislative options, there no doubt will be vigorous debate.

This much is clear: Bivens is serving no one, and the fix is long overdue.