§ 1983 vs. Bivens vs. FTCA: Which Claim to File

When the government violates your rights, there are three main ways to sue in federal court: Section 1983, a Bivens action, or the Federal Tort Claims Act (FTCA). Each applies in different situations, has different rules, and provides different remedies. Filing under the wrong one can get your case dismissed.

This guide breaks down all three, explains when each applies, and helps you figure out which claim — or combination of claims — fits your situation.

The Quick Answer

In many cases involving federal actors, you'll want to file both a Bivens claim and an FTCA claim. They're not mutually exclusive, and they cover different bases. More on that below.

Section 1983: The State and Local Actor Statute

42 U.S.C. § 1983 provides a cause of action against anyone who, acting under color of state or local law, deprives you of a right secured by the Constitution or federal law. It's the workhorse of civil rights litigation in America.

Key Features

• Defendants: State and local officials (police, prison guards, public school employees, city officials) in their individual and/or official capacities. Municipalities under Monell.
• Basis: Constitutional violations (Fourth Amendment excessive force, First Amendment retaliation, Fourteenth Amendment due process, etc.) or violations of federal statutory rights.
• Damages: Compensatory, nominal, punitive (against individuals only), injunctive relief, attorney's fees under § 1988.
• Statute of limitations: Borrowed from the state's personal injury statute — typically 2-3 years.
• No exhaustion required (except for prisoners under the PLRA).
• No administrative claim required — you file directly in federal court.
• Jury trial available.

For a deep dive, see our full Section 1983 filing guide.

Bivens: The Federal Actor Equivalent

A Bivens action — named after the Supreme Court's 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 — allows you to sue federal officials in their individual capacity for violating your constitutional rights. It's essentially the federal equivalent of Section 1983.

Key Features

• Defendants: Federal officials in their individual capacity only. You cannot sue the United States or a federal agency under Bivens.
• Basis: Constitutional violations by federal actors.
• Damages: Compensatory and nominal. Punitive damages may be available in some circuits. No statutory attorney's fees provision (unlike § 1983).
• Statute of limitations: Borrowed from state personal injury law, same as § 1983.
• Qualified immunity applies — same defense as in § 1983 cases.
• Jury trial available.

The Critical Caveat: Bivens Is Shrinking

Here's the problem: the Supreme Court has been steadily narrowing the availability of Bivens claims for decades. The Court has only recognized Bivens in three specific contexts:

1. Fourth Amendment unreasonable search and seizure — The original Bivens case (1971). Federal agents conducted a warrantless search and arrest.
2. Fifth Amendment gender discrimination in employment — Davis v. Passman, 442 U.S. 228 (1979). A congressman fired a staffer based on sex.
3. Eighth Amendment deliberate indifference to medical needs — Carlson v. Green, 446 U.S. 14 (1980). A federal prisoner died from untreated medical conditions.

Since 1980, the Supreme Court has refused to extend Bivens to any new context. In Ziglar v. Abbasi, 582 U.S. 120 (2017), the Court established a highly restrictive two-step test: if a case presents a "new context" (different from the three recognized scenarios) or involves "special factors" counseling against judicial creation of a remedy, the claim fails. In Egbert v. Boule, 596 U.S. 482 (2022), the Court went further, making clear that expanding Bivens is "a 'disfavored' judicial activity."

FTCA: Suing the Federal Government for Torts

The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, allows you to sue the United States government itself (not individual officials) for injuries caused by the negligent or wrongful acts of federal employees acting within the scope of their employment.

Unlike § 1983 and Bivens, the FTCA isn't a constitutional claim — it's a tort claim. The government is liable the same way a private person would be liable under state tort law for negligence, medical malpractice, property damage, or certain intentional torts.

Key Features

• Defendant: The United States of America (not individual officials).
• Basis: State tort law (negligence, malpractice, etc.), applied as if the government were a private person.
• Damages: Compensatory only — money damages for personal injury, property loss, or death. No punitive damages. No attorney's fees (as damages — though the court may award costs).
• Statute of limitations: 2 years from the date of the incident to file the administrative claim. Then 6 months after denial to file suit.
• No jury trial — FTCA cases are decided by a judge (bench trial).
• Administrative exhaustion required — You must file an administrative claim first (see below).

The Administrative Claim Requirement

This is the single most important procedural requirement of the FTCA, and missing it is fatal. Before you can file an FTCA lawsuit, you must first file an administrative claim with the federal agency whose employee injured you. Use Standard Form 95 (SF-95), available on most agency websites.

The timeline:

1. File SF-95 with the agency within 2 years of the incident.
2. The agency has 6 months to respond (they may investigate, offer a settlement, or deny the claim).
3. If the agency denies your claim or fails to respond within 6 months, you have 6 months from the denial (or from the end of the 6-month waiting period) to file suit in federal district court.

The FTCA's Exceptions (What You Can't Sue For)

The FTCA has significant exceptions — categories of claims that are excluded from its coverage. The major ones:

• Discretionary function exception — The government isn't liable for decisions that involve judgment or choice in carrying out policy (e.g., how to allocate resources, which enforcement approach to take). This is the most litigated exception.
• Intentional torts (generally) — The FTCA originally excluded all intentional torts. A 1974 amendment added an exception for certain intentional torts by federal law enforcement officers: assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution. For non-law-enforcement federal employees, intentional torts are still excluded.
• Combatant activities exception — Claims arising from military combat operations.
• Foreign country exception — Claims arising in a foreign country.

Side-by-Side Comparison

Common Scenarios: Which Claim Applies?

Scenario 1: Police Officer Uses Excessive Force

A city police officer slams you to the ground during a traffic stop, breaking your arm. The officer is a local government employee acting under color of state law.

File: Section 1983 — Fourth Amendment excessive force claim against the officer (individual capacity). Consider a Monell claim against the city if there's a pattern of excessive force or a training failure.

Scenario 2: DEA Agent Conducts an Illegal Search

DEA agents kick in your door without a warrant and search your home. No drugs are found. The agents are federal employees.

File: Bivens — Fourth Amendment unreasonable search and seizure. This is the original Bivens context, so the claim is on the strongest possible footing. Also file an FTCA claim (SF-95 first) for property damage and any physical injuries — the FTCA covers torts by federal law enforcement officers including trespass and property destruction.

Scenario 3: Negligent Medical Care at a Federal Prison

You're a federal prisoner and the prison doctor ignores your symptoms for months, resulting in a serious medical condition getting worse. The doctor is a federal employee.

File both:

• Bivens — Eighth Amendment deliberate indifference to serious medical needs (this is the Carlson v. Green context).
• FTCA — Medical malpractice/negligence under state tort law. File the SF-95 administrative claim with the Bureau of Prisons first.

Scenario 4: State Prison Guard Denies You Medical Care

You're in a state prison and a guard ignores your medical emergency. The guard is a state employee.

File: Section 1983 — Eighth Amendment deliberate indifference. The FTCA doesn't apply (state employees, not federal). Bivens doesn't apply (state actor, not federal).

Scenario 5: IRS Agent Retaliates Against You for a Complaint

You filed a complaint against an IRS agent, and now the agent is auditing you in retaliation. The agent is a federal employee.

This is a tough one. Bivens retaliation claims against federal employees are in a "new context" that courts have been reluctant to recognize after Ziglar and Egbert. You might have a First Amendment Bivens claim, but it's an uphill battle. Consider whether the IRS has an internal complaint mechanism, whether a taxpayer advocate can help, and whether any specific statute (like the Taxpayer Bill of Rights) provides an alternative remedy. An alternative remedy is one of the "special factors" that can defeat a Bivens claim.

Can You File More Than One Type of Claim?

Yes — and you often should. Federal courts allow you to plead claims in the alternative. In a single complaint, you can assert:

• A Bivens claim against the individual federal official
• An FTCA claim against the United States

You can also combine federal claims with state law claims (like state tort claims or state constitutional claims) under the court's supplemental jurisdiction (28 U.S.C. § 1367).

The one thing you need to be careful about: the FTCA's judgment bar (28 U.S.C. § 2676). If you go to judgment on an FTCA claim — even if you lose — that judgment bars any further action against the individual employee based on the same subject matter. This can kill a parallel Bivens claim. Courts handle this differently, but the safest approach is to make sure both claims proceed together and that you don't inadvertently trigger the judgment bar.

Filing Checklist by Claim Type

Section 1983

1. Identify the state/local officials who violated your rights.
2. Identify the specific constitutional or federal statutory right violated.
3. File complaint in federal district court (28 U.S.C. § 1331 jurisdiction).
4. Serve defendants within 90 days.
5. No administrative exhaustion required (unless you're a prisoner under the PLRA).

Bivens

1. Identify the federal official(s) who violated your constitutional rights.
2. Determine whether your claim fits one of the three recognized Bivens contexts — or research whether courts in your circuit have recognized your type of claim.
3. File complaint in federal district court.
4. Serve defendants within 90 days.
5. No administrative exhaustion required (unless you're a prisoner under the PLRA).

FTCA

1. Obtain and complete Standard Form 95 (SF-95).
2. File SF-95 with the responsible federal agency within 2 years of the incident.
3. Wait for the agency to respond (up to 6 months).
4. If denied (or no response after 6 months), file suit in federal district court within 6 months.
5. Serve the United States (see our service guide — serving the U.S. requires serving the U.S. Attorney, the Attorney General, and the agency).

Related Guides

• Section 1983 Claims: A Pro Se Filing Guide — Deep dive into § 1983
• How to File an FTCA Claim Pro Se — The administrative claim process and beyond
• Pro Se Guide to Filing in Federal Court — The complete filing walkthrough
• How to Serve a Defendant in Federal Court — Service of process, including serving the U.S. government
• In Forma Pauperis Guide — Filing fee waivers
• How to Respond to a Motion to Dismiss — Defending your complaint