This article was written by former federal prosecutor and top 50 attorney in America Scott Grubman. He is currently a criminal defense attorney in Georgia.
By Scott Grubman | February 4, 2026
ATLANTA, GA— If state or local law enforcement agent violate someone’s rights, that person can file a federal lawsuit under 18 U.S.C. § 1983. But there is no statutory equivalent that applies to federal agents. In Bivens v. Six Unknown Named Agents, the Supreme Court fixed that problem by recognizing an implied cause of action against federal officials for constitutional violations. 403 U.S. 388 (1971).
However, over the last 25 years, the Court has placed significant limits on the Bivens remedy. In Ziglar v. Abbasi, for example, the Court held that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” noting that the Court has “consistent refused to extend Bivens to any new context or new category of defendants . . . for the past 30 years.” Ziglar v. Abbasi, 582 U.S. 120 (2017). Then, in Egbert v. Boule, the Court held that Bivens did not extend to create causes of action for the plaintiff’s First and Fourth Amendment Claims, writing that “[i]f there is even a single reason to pause before applying Bivens in a next context, a court may not recognize a Bivens remedy.”
Three Approved Contexts for Bivens Claims
The Supreme Court has recognized a Bivens remedy in only three contexts, the last time being in 1980:
1 Bivens itself — Fourth Amendment search-and-seizure violation by federal narcotics agents (1971).
2 Davis v. Passman — Fifth Amendment sex-discrimination claim by a former Congressional staffer (1979).
3 Carlson v. Green — Eighth Amendment deliberate indifference to serious medical needs of federal prisoner (1980).
Everything else—First Amendment retaliation, cross-border shootings, policy-level detention claims, etc.—is typically treated as a “new context” and therefore presumptively barred absent extraordinary circumstances.
What are the thresholds for a Bivens lawsuit?
The Court’s current approach is driven by separation-of-powers concerns: if Congress hasn’t created a damages remedy, courts generally shouldn’t. That theme is explicit in Ziglar v. Abbasi which established the now-standard two-step analysis:
Step One: Is this a “new context”?
A case presents a “new context” if it differs in a meaningful way from the three recognized contexts. Abbasi instructed courts to treat even modest differences as “new,” pushing most claims into the second step.
Step Two: Are there “special factors counseling hesitation”?
If the context is new, the court will then whether there are reasons (e.g., institutional competence, national security, immigration, foreign affairs, policy-level decision-making, etc.) to leave the question to Congress. Abbasiemphasized that this inquiry should be rigorous and separation-of-powers centered.
The “alternative remedies” accelerator
Even if the alternative process doesn’t provide equivalent relief, the Court increasingly treats the mere presence of some remedial scheme (administrative grievance processes, Federal Torts Claims Act, habeas/Administrative Procedure Act channels, or state tort law) as a reason to stop. That trend is especially pronounced in Egbert v. Boule.
SCOTUS and The Refusal To Expand Bivens
Over the last 25 years, the Supreme Court has refused to expand Bivens in numerous respects, including:
• Correctional Services Corp. v. Malesko: the Court refused to extend Bivens to allow damages against a private prison corporation operating under federal contract. The decision reinforced that Bivens is not a broad “federal § 1983,” but a limited, judge-made remedy. 534 U.S. 61 (2001).
• Wilkie v. Robbins: the Court declined to create a Bivensremedy for alleged retaliation/harassment by federal Bureau of Land Management officials seeking an easement. 551 U.S. 537 (2007).
• Abbasi: the Court treated the plaintiffs’ post-9/11 detention claims as presenting a new context and emphasized that extending Bivens is exceptional, especially where claims implicate policy decisions and national security. 582 U.S. 120 (2017).
• Hernandez v. Mesa: the Court refused to extend Bivensto claims arising from a cross-border shooting by a Border Patrol agent, emphasizing foreign affairs and national security “special factors,” among others. 589 U.S. 93 (2020).
• Egbert: the Court refused to recognize a Bivens remedy where the owner of a bed-and-breakfast on the United States-Canadian border was physically assaulting by Border Patrol agents and then retaliated against after filing a grievance. 596 U.S. 482 (2022). The Court leaned on the “disfavored” posture and pointing to administrative grievance processes as sufficient to foreclose extension.
The “Bivens Act of 2025”: A Proposed Legislative Fix
Against this backdrop, in November 2025, a group of Democrat lawmakers led by Representative Hank Johnson introduced H.R. 6091, titled the Bivens Act of 2025. The legislation would amend the operative language of 42 U.S.C. § 1983 to include persons acting under authority “of the United States”; i.e., it would effectively extend a § 1983-style cause of action to federal actors.
If federal officials are brought into § 1983’s framework by statute, plaintiffs would no longer need courts to “imply” a remedy under Bivens. In other words, the bill aims to replace the shrinking, judge-made remedy with an express, statutory one.
Even if the proposed legislation were to pass (and, given the current political reality, that is extremely unlikely), many of the familiar defense doctrines in Section 1983 litigation could migrate with it, including qualified immunity. So even under a “Bivens Act” regime, liability would not become automatic but would apply in a broader array of circumstances than under the current Bivens case law.
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