Barriers to Holding Federal Agents Accountable

A right without a remedy is no right at all. But when federal officers violate the Constitution, a slew of unjustified barriers prevent victims from holding offenders accountable. As a result, most lawsuits against federal officers fail—not because a court finds that no constitutional violation occurred, but because the person who defied the Constitution works for the federal government. Whether FBI, ICE, IRS or ATF, a lack of accountability means that federal officers act in a Constitution-free zone.

This flowchart explains the procedural and legal obstacles that prevent victims of unconstitutional conduct by federal officers from vindicating their rights. It outlines the complex set of issues involved in bringing claims against the United States government and individual federal agents, and shows how judicial barriers can block accountability for clear constitutional violations.

What happens when an individual is harmed by a federal officer?

Whether a small business owner illegally searched by the FBI executing a warrant at the wrong location, an American citizen illegally arrested by immigration officers, a taxpayer subjected to a retaliatory audit by the IRS, or a gunowner killed by the ATF during a raid to seize a suppressor, all claims against the federal government and its agents face a similar gauntlet of difficulties that fuse into a process with the apparent design of keeping cases from going to trial.

Here’s how:

1. Access to Legal Representation

The plaintiffs must find a lawyer—but not just any lawyer. Often plaintiffs are unable to pay a lawyer’s hourly rate. This means that the plaintiffs must find a lawyer willing to work on a contingency basis, agreeing to accept a percentage of any final award as payment.

But in cases against the federal government, finding a lawyer who will work on contingency is difficult. These cases can take years to litigate, and a lawyer working on contingency won’t get paid until—and unless—the case is won. Because of the many pitfalls involved in cases against the federal government, which are outlined below, winning any given case is an uphill battle. This landscape creates a problem: Many private attorneys conclude that years-long cases with uncertain financial benefits are not worth their time, so even people with strong claims can struggle to find competent lawyers.

2. Statutes of Limitation (Initial Clock Begins)

From the date of the injury (or its discovery), plaintiffs have a set period to bring a claim. For claims against the United States (Path A below), plaintiffs have two years to file a claim. For claims against individual federal officials (Path B below), the limitations period is governed by state law. Typically, plaintiffs have one to three years to file such claims. This means that plaintiffs’ deadlines vary depending on the type of claim they wish to bring and where the government abuse occurred.

3. Identifying the Correct Defendant (government or individual agent)

To file a lawsuit, the plaintiffs must know who to sue. In cases seeking accountability for federal officers’ misconduct, plaintiffs have two options: They can either sue the United States itself, Path A below, or they can sue the individual federal agent(s) who wronged them, Path B below. In either scenario, the identity of the agents or agencies involved may be unknown to the plaintiffs, so discovering the appropriate defendant(s) can be a difficult task.

PATH A — Federal Tort Claims Act (FTCA) Claims Against the United States (Government)

4A. Identifying the Correct Agency

  • Claims against the United States government are barred by the doctrine of sovereign immunity unless Congress has unequivocally waived such immunity.
  • For most people, if the FTCA does not provide a cause of action, there is no way to sue the United States if you are harmed by one of its employees.

5A. Identifying an FTCA Cause of Action

  • Plaintiffs must bring tort claims, not direct constitutional claims.
  • Claims can only seek money damages; they can’t stop ongoing government actions.
  • Liability is determined by the state law of where the act occurred and is subject to a vast array of defenses from state law and federal statutes.

6A. FTCA Administrative Exhaustion

  • Plaintiffs cannot bring suit unless they correctly identify the agency that harmed them.
  • Once plaintiffs discover which agency harmed them, they must submit a written claim form to that agency demanding compensation.
    • Different agencies have different procedures.
    • Plaintiffs cannot seek more money in a lawsuit than they sought to recover from the agency.
  • The agency claim must generally be presented within two years of the incident.

Failure to timely present the claim to the agency permanently bars plaintiffs from filing a lawsuit under the FTCA.

7A. Post-exhaustion Court Filing Deadline

  • The agency has six months to respond to the administrative claim.
  • A suit may not be filed until the claim is denied or the agency fails to respond within that period.

Failure to file suit in federal court within six months of denial permanently bars the claim.

8A. FTCA Exceptions

  • The FTCA incorporates a variety of immunities and defenses that make cases harder to win.
  • The FTCA also lays out 13 exceptions where sovereign immunity is not waived for claims arising out of:
    • Due care and discretionary functions;
    • Loss, miscarriage, or negligent transmission of mail;
    • Collection of taxes or duties or the detention of goods for those purposes;
    • Admiralty law;
    • Administering the Trading with the Enemy Act;
    • Quarantines;
    • Certain intentional torts;
    • Treasury operations;
    • Combatant activities;
    • Foreign countries;
    • Activities of the Tennessee Valley Authority;
    • Activities of the Panama Canal Company; and
    • Activities of certain federal banks.
  • The Supreme Court has also created certain unwritten exceptions to the FTCA like the Feres doctrine, which bars nearly all claims brought by active-duty military servicemembers in times of peace.

Given all these exceptions (both written and unwritten), the FTCA is a complicated and confusing statute that leaves enormous gaps for government mischief.

9A. Motion to Dismiss Phase

  • Reviewing plaintiffs’ complaints, the court evaluates:
    • Whether the claims fall under the FTCA’s sovereign-immunity waiver;
    • Administrative exhaustion;
    • The timeliness of plaintiffs’ federal lawsuit;
    • The application of the FTCA’s exceptions; and
    • The strength of underlying state tort claims.

10A. Possible Pre-discovery Outcomes

  • A case can be dismissed in full if:
    • Plaintiffs’ claims fall outside the FTCA’s sovereign-immunity waiver;
    • The FTCA’s exceptions apply;
    • Administrative exhaustion is incomplete or incorrect;
    • The statute of limitations expired;
    • Immunities or defenses apply; or
    • Plaintiffs fail to allege state-law torts.
  • If dismissed, the court bars the lawsuit in its entirety.
  • A case can proceed in part if:
    • Some claims are barred for the reasons above; and
    • Other claims establish a sovereign-immunity waiver and avoid the FTCA’s exceptions, immunities, and defenses.
  • The court can continue to preside over some of the plaintiffs’ claims, but damages and legal theories are limited.
  • A case can proceed in full if each of the claims establishes a sovereign-immunity waiver and avoids the FTCA’s exceptions, immunities, and defenses.
  • The court can continue to preside over all of the claims.

11A. Discovery Phase

  • Discovery is limited to permissible FTCA tort theories and defenses.
  • The government may assert privileges (law-enforcement, deliberative process, etc.) to evade discovery.
  • Limited access to evidence makes it harder for plaintiffs to prove their claims moving forward.

12A. Summary Judgment

  • After discovery, the court reassesses:
    • Whether plaintiffs’ claims fall under the FTCA’s sovereign-immunity waiver;
    • Administrative exhaustion;
    • The timeliness of plaintiffs’ federal lawsuit;
    • The application of the FTCA’s exceptions; and
    • The strength of the underlying state tort claims.
  • This means the government gets second bite at the apple for its legal theories.
  • At summary judgment, the case may once again be dismissed in whole or in part.

13A. District Court Resolution

  • If plaintiffs’ claims survive summary judgment, the parties may agree to settle the lawsuit (case closes).
  • If the parties do not settle, the case proceeds to trial before a judge (jury trials are barred under the FTCA).

14A. Appeal

  • If the government loses in district court (whether at trial or on summary judgment), it may appeal.
  • On appeal, the government may once again present legal theories about:
    • Sovereign immunity and the FTCA’s applicability;
    • The FTCA’s exceptions;
    • Immunities and defenses; and
    • Liability and damages under state tort law.

PATH B — Claims Against the Individual Agent (Personal Capacity)

4B. Identifying the Correct Agent

  • Agent must be identified, named, and served.
  • Identification often occurs late due to secrecy or obstruction.

5B. Identifying a Constitutional Cause of Action (Bivens Action)

  • There is no federal-officer analogue to 42 U.S.C. § 1983, a statute that allows people to sue state officials who violate their constitutional rights.
  • Instead, suits arise directly under the Constitution.
  • The Supreme Court first recognized these constitutional claims against federal officers in a 1971 case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.
    • In Bivens, the Court allowed a man to sue federal officers under the Fourth Amendment for breaking into his home without a warrant, strip searching him, and handcuffing him in front of his wife and children.
    • The Court’s decision was premised on the idea that the violation of every right must have a remedy.
  • So, to hold federal officers individually accountable, courts must decide whether a Bivens cause of action exists.
  • For years, courts routinely recognized Bivens actions against federal agents (especially federal law-enforcement officers) who violated the Constitution.
  • But in 2022, the Supreme Court severely limited Bivens in a case called Egbert v. Boule.
  • Most courts now hold that Bivens remedies no longer exist outside of very limited circumstances.
    • Some federal courts of appeal have gone so far as to say that the vast majority of Bivens claims are now “dead on arrival.”
  • After Egbert, it has become nearly impossible for most people to sue individual federal officers who violate their constitutional rights.

6B. Qualified Immunity

  • The Supreme Court created qualified immunity—an atextual barrier to constitutional lawsuits against government officials—in a 1982 case called Harlow v. Fitzgerald.
  • Qualified immunity shields government officials from liability for their constitutional violations by default, subject to a qualification:
    • The immunity can be defeated if plaintiffs show a violation of clearly established law.
    • To prove a violation of clearly established law, plaintiffs usually must show that a court already held the same conduct under the same circumstances unconstitutional. This means that novel and egregious constitutional violations can be immunized only because no government official has committed them before.
  • So even if plaintiffs can show that they have a cause of action under Bivens, their claims may be dismissed under qualified immunity.
  • Because qualified immunity is a court-created doctrine—not a constitutional requirement—it doesn’t have to be this way. States can pass laws to eliminate this barrier and ensure constitutional violations are heard in court. Get involved in the fight to end qualified immunity here!

7B. Motion to Dismiss Phase

  • Reviewing a plaintiff’s complaint, the court evaluates:
    • The timeliness of plaintiffs’ federal lawsuit;
    • Whether a Bivens cause of action exists;
    • Whether the defendant is entitled to qualified immunity; and
    • The strength of the underlying constitutional claims.

8B. Possible Pre-discovery Outcomes

  • A case can be dismissed in full if:
    • The statute of limitations has expired;
    • There is no recognized Bivens cause of action;
    • Qualified immunity bars the lawsuit; or
    • Plaintiffs have failed to state a claim for a constitutional violation.
  • A case can proceed in part if:
    • Some claims are dismissed for the reasons above; and
    • Other claims establish a Bivens cause of action, state a claim for a constitutional violation, and overcome qualified immunity.
  • The court can continue to preside over some of plaintiffs’ claims, but some defendants may be dismissed, and legal theories and damages can be limited.
  • A case can proceed in full if each of plaintiffs’ claims establishes a Bivens cause of action, states a claim for a constitutional violation, and overcomes qualified immunity.
  • The court can continue to preside over all the plaintiffs’ claims against all defendants.

9B. Immediate Appeal after Motion to Dismiss (Common)

  • Unlike in FTCA lawsuits, individual federal defendants may immediately appeal certain issues after a motion to dismiss is decided, including:
    • The availability of a Bivens cause of action; and
    • The denial of qualified immunity.
  • The availability of an immediate appeal gives federal defendants a second bite at the apple for their legal theories before any fact-finding has taken place.
  • District court proceedings, including discovery, are typically stayed pending appeal, adding years to litigation.
  • If plaintiffs’ claims survive appeal, the case proceeds to discovery.

10B. Discovery Phase

  • In cases against federal officials, protective orders and confidentiality assertions frequently prevent full discovery and public scrutiny.
  • Limited access to evidence makes it harder for plaintiffs to prove their claims moving forward.

11B. Summary Judgment

  • After discovery, the court reassesses:
    • Whether the statute of limitations has expired;
    • Whether there is a recognized Bivens cause of action;
    • Whether qualified immunity bars the lawsuit; and
    • The strength of plaintiffs’ constitutional claims.
  • This gives defendants yet another bite at the apple for their legal theories.
  • At summary judgment, the case may once again be dismissed in whole or in part.

12B. District Court Resolution

  • If plaintiffs’ claims survive summary judgment, the parties may agree to settle the lawsuit (case closes).
  • If the parties do not settle, the case proceeds to trial.

13C. Appeal

  • If defendants lose in district court (whether at trial or on summary judgment), they may appeal once again.
  • On appeal, the defendants have yet another opportunity to present legal theories about:
    • The availability of a Bivens cause of action;
    • The denial of qualified immunity; and
    • Whether plaintiffs proved that the defendants violated the Constitution.

Without accountability, our rights exist only on paper.

Holding federal agents accountable takes more than winning a single legal battle; it requires victims to navigate a step-by-step process filled with technical rules, legal barriers, and unwritten exceptions.

Criminal prosecution falls far short of addressing federal officers’ unconstitutional conduct for two reasons. First, it requires the government—instead of the victim—to hold other government officials accountable (something the government is often unwilling to do). Second, federal officials can argue that the Constitution’s Supremacy Clause prevents the states from imposing criminal penalties for their actions—even when those actions violate the Constitution. As a result, the best way for individuals to vindicate their constitutional rights often comes in the form of civil lawsuits against the offending officers (or the government itself). But the unjustified barriers individuals face in seeking remedies leave their rights unenforceable in many cases.

IJ’s Project on Immunity and Accountability is the nation’s leader in holding government officials accountable for constitutional abuse. Americans Against Qualified Immunity, a project of the Institute for Justice, leads legislative and grassroots efforts to advance state-level reforms to end qualified immunity. Learn more at www.aaqi.org.

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Americans Against Qualified Immunity

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