The Supreme Court created a private damages action against federal officials for constitutional torts (civil rights violations), which aren’t covered by the FTCA. In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Court held that the Fourth Amendment gives rise to a right of action against federal law enforcement officials for damages from an unlawful search and seizure. Since a Bivens action is brought against a federal official in the official’s personal capacity, it is not considered to be an action against the United States and therefore is not barred by sovereign immunity. The plaintiff seeking a damages remedy under Bivens must first demonstrate that constitutional rights have been violated.[Davis v. Passman, 442 U.S. 228 (1979)]

Bivens actions are usually concerned with deterring the unconstitutional acts of individual officers. Reviewing the case law of Bivens actions reveals that most claims are brought against federal law enforcement officials.

Bivens suits have been acknowledged by the Court as having more of a deterrence effect against federal officials from committing constitutional torts than the FTCA. This is chiefly because a Bivens suit is a personal suit against the official, and punitive damages are recoverable. The government is substituted for the defendant in FTCA cases, and the FTCA does not allow punitive damages. Thus a Bivens defendant is at risk of personal liability, including punitive damages, while the government pays all damages in FTCA cases. Procedurally, a plaintiff is entitled to a jury trial in a Bivens action, but not in a FTCA case.[Carlson v. Green, 446 U.S. 14 (1980) ]

However, Bivens actions have been restricted by the Supreme Court when Congress has created other avenues for review and compensation. For example, the Court denied a Bivens action for procedural due process violations under the Social Security Act disability provisions because Congress had created an independent remedial scheme to restore benefits. Schweiker v. Chilicky, 487 U.S. 412, 423 (1988) . Courts are careful not to extend Bivens where it is unnecessary or inappropriate. Some factors that may counsel hesitation in allowing Bivens action against federal actors include: conflict with federal fiscal policy; the existence of a comprehensive remedial scheme providing meaningful remedies created by Congress; and the unique structure and nature of the military. Id. at 421.

Bivens actions are not available against private entities operating under color of federal law, such as a federal prison operated by a private corporation.[Correctional Serv. Corp. v. Malesko, 534 U.S. 61 (2001) ] There is no implied private right of action, pursuant to Bivens, for damages against private entities that engage in alleged constitutional deprivations while acting under color of federal law.

The main defense for a federal official in a Bivens action is official immunity from actions for damages. There are two types of official immunity available as affirmative defenses: absolute and qualified.[ Butz v. Economou, 438 U.S. 478 (1978)] Absolute immunity is granted to judges, prosecutors, legislators, and the President, so long as they are acting within the scope of their duties. Qualified immunity applies to federal officials and agents who perform discretionary functions, but may be overcome by a showing that their conduct violated a constitutional right.[Harlow v. Fitzgerald, 457 U.S. 800 (1982) ] Absolute and qualified immunity are discussed more fully below.

The courts are usually reticent to allow Bivens claims in public health cases. In Nebraska Beef v. Greening, 398 F.3d 1080 (8th Cir. 2005) , plaintiff brought a Bivens suit against U.S. Dept. of Agriculture food safety inspectors for damages to its reputation and business. The appellate court dismissed the suit, noting that the Supreme Court has been reluctant to extend Bivens suits to new areas. The court explained that there is a "presumption against judicial recognition of direct actions for violations of the Constitution by federal officials or employees," and "if Congress has not explicitly created such a right of action, and if it has created other remedies to vindicate (though less completely) the particular rights being asserted in a given case, the chances are that the courts will leave the parties to the remedies Congress has expressly created for them." Id. at 1084.

In Nebraska Beef, the court found that Congress had already created a comprehensive regulatory regime, and the existence of a right to judicial review under the Administrative Procedure Act is sufficient to preclude a Bivens action. However, there is no bar against bringing a Bivens action against a federal official who is not a law enforcement agent. United States Public Health Service employees were found liable under Bivens for the conscious disregard of the medical needs of an INS detainee, who died of cancer after being repeatedly denied medical care.[Castaneda v. United States, 546 F.3d 682 (9th Cir. 2008) ] The court rejected claims by the defendants that the case should have been brought as a negligence action under the Federal Tort Claims Act , finding that their intentional actions went beyond negligent care and that congress did not intend to make the FTCA the sole remedy against PHS employees.