Xiaoxing Xi v. Andrew Haugen

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-2798

_____________

XIAOXING XI;

JOYCE XI;

QI LI,

Appellants

v.

FBI SPECIAL AGENT ANDREW HAUGEN;

JOHN DOES; UNITED STATES OF AMERICA;

DIRECTOR OF FEDERAL BUREAU OF

INVESTIGATION;

ATTORNEY GENERAL UNITED STATES OF AMERICA;

DIRECTOR NATIONAL SECURITY AGENCY

AND CHIEF OF THE CENTRAL SECURITY SERVICE

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-17-cv-02132)

District Judge: Hon. R. Barclay Surrick

_______________

Argued September 14, 2022

Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges.

(Filed May 24, 2023)

David Rudovsky [ARGUED]

Jonathan H. Feinberg

Susan M. Lin

Kairys, Rudovsky, Messing, Feinberg & Lin LLP

718 Arch Street

Suite 501 South

Philadelphia, PA 19106

Patrick Toomey

Ashley Gorski

Sarah Taitz

American Civil Liberties Union Foundation

125 Broad Street

18th Floor

New York, NY 10004

Jonathan Hafetz

Seton Hall Law School

One Newark Center

Newark, NJ 07102

Counsel for Appellants

Beth S. Brinkmann

Covington & Burling

850 10th Street NW

One City Center

Washington, DC 20001

Lawrence S. Lustberg

2

Gibbons

One Gateway Center

Newark, NJ 07102

Robert McNamara

Institute for Justice

901 N Glebe Road

Suite 900

Arlington, VA 22203

Adam Shelton

Goldwater Institute

500 East Coronado Road

Phoenix, AZ 85004

Counsel for Amicus Appellants

Leif Overvold [ARGUED]

Brian M. Boynton

H. Thomas Byron III

Sharon Swingle

Attorneys, Appellate Staff

Civil Division, Room 7226

U.S. Department of Justice

950 Pennsylvania Avenue NW

Washington, DC 20530

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

KRAUSE, Circuit Judge.

3

Not all rights have remedies, even when they are

enshrined in the U.S. Constitution. So where Congress has

opted to remedy specific rights in specific circumstances, we

hesitate to interfere with that judgment by implying our own

remedies or restricting those provided by Congress in ways it

never intended. Here, we consider whether Appellant

Xiaoxing Xi has a remedy available for two types of claims,

both of which arise from the government’s investigation,

arrest, and later-dismissed indictment alleging—mistakenly—

that he was a “technological spy” for China. Xi, joined by his

co-Appellants, his wife, Qi Li, and daughter, Joyce Xi, filed a

complaint that raised two types of claims: (1) federal

constitutional claims under Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),

directed at FBI Special Agent Andrew Haugen, the lead agent,

and other unnamed officials involved in the investigation, 1 and

(2) malicious prosecution and other torts under the Federal

Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–2680,

asserted against the United States. The District Court

dismissed both categories of claims on the Government’s

motion, and we agree, but only in part.

In view of evolving Supreme Court precedent declining

to extend Bivens into the national security realm and the limited

circumstances in which Congress has opted to provide a

remedy, we will affirm the District Court’s dismissal of Xi’s

Bivens claims. But his FTCA claims are another matter. The

District Court held the Government immune from those claims

because it determined that Xi and his family had failed to allege

1

For ease of reference, this opinion refers to the claims

against Haugen and the unnamed officials, collectively, as

claims against Haugen.

4

“clearly established” constitutional violations and assumed

that this threshold for liability, applicable to qualified

immunity analysis, also applied to the FTCA’s “discretionary

function exception.” We clarify today, however, that the

“clearly established” threshold is inapplicable to the

discretionary function analysis, and because the Government

has no discretion to violate the Constitution, FTCA claims

premised on conduct that is plausibly alleged to violate the

Constitution may not be dismissed on the basis of the

discretionary function exception. We will therefore vacate the

District Court’s dismissal of Appellants’ FTCA claims and

remand for further proceedings.

I. Factual and Procedural Background 2

Appellant Xiaoxing Xi and his wife, Qi Li, immigrated

to the United States from China in 1989, and over the next

twenty-five years, lived out the American Dream. Xi, who is

an internationally acclaimed expert in the field of thin film

superconducting technology, was eventually appointed Chair

of the Physics Department at Temple University. Qi Li, also

an accomplished physicist, became a professor at Pennsylvania

State University. And together, they settled in Pennsylvania

and began raising their two daughters.

According to the Complaint, however, life as the family

knew it came to a crashing halt on May 21, 2015. In the early

morning hours, they were awakened by loud knocks. Startled

and partially undressed, Xi answered the door, where he was

2

In reciting the facts, we accept the well-pleaded

allegations in the operative Second Amended Complaint (“the

Complaint”) as true. See Ashcroft v. Iqbal, 556 U.S. 662, 666

(2009).

5

confronted by armed FBI agents who were wielding a battering

ram and who proceeded to handcuff him. Without an

explanation, the agents entered the house, held Qi Li and the

couple’s young daughters—including Joyce Xi—at gunpoint,

and conducted an extensive search, seizing computers, travel

records, and financial records. At the conclusion of the search,

the agents released Qi Li and the daughters, but took Xi to the

FBI’s Philadelphia field office. There, he was subjected to

DNA sampling and fingerprinting, before being interrogated

for approximately two hours. Only then did the agents reveal

the catalyst for the morning’s events.

As it turned out, Xi had been indicted on four counts of

wire fraud for allegedly providing Chinese entities with

sensitive information about a “revolution[ary]”

superconductor technology, known as a “pocket heater”,3 that

belonged to an American company. See Indictment at ¶ 5,

United States v. Xi, No. 15-cr-204 (E.D. Pa. May 14, 2015),

ECF No. 1. Xi had obtained an early version of the pocket

heater from Shoreline Technologies, a company owned by one

of its two inventors, in 2004, and then leased the device in 2006

from its then-owner, Superconductor Technologies, Inc

(“STI”). As described in the Indictment, Xi purported to

procure the pocket heater for university research and agreed,

as a condition of the 2006 lease, that he would not “reproduce,

3

A “pocket heater” is described in the Complaint as a

device for depositing magnesium diboride thin films on flat

surfaces. Though disputed by Xi, the Indictment charged that

this device “revolutionized the field of superconducting

magnesium diboride thin film growth.” See Indictment at ¶ 5,

United States v. Xi, No. 15-cr-204 (E.D. Pa. May 14, 2015),

ECF No. 1.

6

sell, transfer, or otherwise distribute” the technology “to any

third party.” Id. at 3. But he then violated the agreement by

sending four emails related to the device to colleagues in

China. Id. at 2–4.

It also turned out that these charges were based on an

investigation led by Defendant Andrew Haugen, an FBI special

agent assigned to the agency’s Chinese Counterintelligence

Unit. In the course of that investigation, as set forth in the

Complaint, Haugen had interviewed the inventor of the pocket

heater and learned that Xi’s emails were “not related” to the

STI pocket heater, but rather to a different process that Xi

himself had invented. Nevertheless, according to the

Complaint, Haugen averred in his affidavits, reports, and other

communications with prosecutors that those emails did

concern the pocket heater.

Eventually, the Prosecutors realized that—just as the

inventor allegedly told Haugen—Xi’s emails had nothing to do

with the pocket heater and concerned an “entirely different”

technology based on Xi’s own research and publications. They

also learned that the pocket heater was not a “revolutionary”

device as the Indictment alleged; instead, it was well known

since 2003 when details of its design were presented at an

international conference. So the Government moved to

dismiss the Indictment, acknowledging that “additional

information came to [its] attention” warranting dismissal.

Motion to Dismiss Indictment Without Prejudice at ¶ 2, Xi, No.

15-cr-204 (E.D. Pa. Sept. 11, 2015), ECF No. 29.

By that time, however, significant damage was already

done. The U.S. Attorney’s Office had issued a press release

regarding Xi’s arrest and indictment, and the case had received

widespread media attention. As a result, Temple suspended Xi

7

as Chair of the Physics Department and placed him on

administrative leave; he was barred from participating in

research or communicating with his graduate students; and he

and his family suffered both emotionally and financially.

After conducting their own investigation into how all

this transpired, Appellants filed suit in the Eastern District of

Pennsylvania. See Complaint, Xi v. Haugen, No. 17-cv-2132

(E.D. Pa. May 10, 2017), ECF No. 1. According to the

Complaint, the emails on their face revealed that Xi did not

share any information about the pocket heater with China, and

the pocket heater was never even referenced in the emails.

They instead referred to a SINAP tubular heating device

invented by Xi himself that differs from the pocket heater in

virtually every respect. The emails were, in short, “normal,

scientific interactions no different from thousands of similar

international collaborations among scientists.” App. 82. And

to the extent any doubt remained as to their contents, the

Complaint alleged the pocket heater inventor had confirmed

for Haugen that they were wholly unrelated to that device.

Based on these allegations, the Complaint asserted two

groups of claims: (1) Bivens claims, brought by Xi, alleging

violations of the Fifth Amendment right to equal protection, as

well as the Fourth Amendment rights to be free from

unreasonable search and seizure, malicious prosecution, and

fabrication of evidence, and (2) FTCA claims, brought by all

Appellants, for Haugen’s alleged torts. 4

4

Counts I–III of the Complaint are Bivens claims

brought by Xi alone for malicious prosecution and fabrication

of evidence (Count I); denial of equal protection (Count II);

and unreasonable search and seizure (Count III). Counts IV

8

As for the first group of claims, the District Court

concluded a Bivens remedy was not available, and even if it

were, Haugen was entitled to qualified immunity because Xi

failed to establish that his conduct violated any “clearly

established” constitutional rights. Specifically, the Court held

that Haugen was immune from Xi’s Fourth Amendment claims

because the Complaint did not contain sufficient facts to

support a finding that the Government lacked probable cause

and there was no “clearly established right to expert validation

of the technical or scientific evidence that was the basis of a

probable cause determination in an investigation or

prosecution.” App. 57. It found no clearly established Fifth

Amendment violation because while Xi alleged that Haugen

and VI are FTCA claims brought by Xi alone for malicious

prosecution (Count IV) and invasion of privacy—false light

(Count VI). Counts V, VII, and IX are FTCA claims brought

by Xi, Qi Li, and Joyce Xi for invasion of privacy—intrusion

upon seclusion (Count V); intentional infliction of emotional

distress (Count VII); and negligence (Count IX). Count VIII

is an FTCA claim brought by Qi Li and Joyce Xi for negligent

infliction of emotional distress.

After determining that there was no just reason for

delay, the District Court entered an order certifying its

judgments on these claims for appeal. Cf. Graber v. Doe, 59

F.4th 603, 605 (3d Cir. 2023) (recognizing, in the absence of a

Rule 54(b) certification, that an order denying a motion to

dismiss a Bivens claim was not a final decision and was not

appealable under the collateral order doctrine). A tenth claim

seeking the return and expungement of information and

property allegedly seized in violation of the Fourth

Amendment has not been ruled upon by the District Court and

is therefore not before us.

9

predicated his investigation “at least in part on the fact that . . .

Xi is racially and ethnically Chinese,” he alleged that Haugen

did so “[a]s a Special Agent employed by the FBI working on

Chinese counterintelligence,” not because Haugen himself had

a discriminatory purpose. App. 90.

The District Court dismissed the second group of

claims, the FTCA claims, because it concluded they “f[e]ll

squarely within the [Act’s] discretionary function exception.”

App. 61. While the Court acknowledged that government

officials do not possess discretion to violate the Constitution,

it took the position that the “discretionary function exception”

precluded suit for all but “clearly established constitutional

rights.” Id. Its determination that Xi failed to establish a

“clearly established” violation for purposes of its qualified

immunity analysis was therefore dispositive. Id.

Xi now brings this timely appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.

§ 1346(b) and 28 U.S.C. § 1331. We have appellate

jurisdiction under 28 U.S.C. § 1291.

We review a district court’s ruling granting a motion to

dismiss de novo. Doe v. Univ. of the Scis., 961 F.3d 203, 208

(3d Cir. 2020). We accept as true all factual allegations in the

Complaint and view those facts in the light most favorable to

the plaintiff. Id.

III. Discussion

We will first address Xi’s Bivens claims and then turn

to Appellants’ FTCA claims.

10

A. Xi’s Bivens Claims

To assess Xi’s Bivens claims, we consider, first, the

Supreme Court’s requirements to pursue a Bivens remedy, and

second, how those requirements apply to this case. 5

1. Bivens Framework

In Bivens, 403 U.S. at 388, the Supreme Court

recognized an implied damages remedy for a Fourth

Amendment violation committed by federal officials whose

conduct was not encompassed by the statutory remedy

available against state officials under 42 U.S.C. § 1983. Bivens

arose in the unreasonable “search and seizure” context: federal

narcotics agents forcibly entered and searched Bivens’ home

without a warrant, then arrested him on federal drug charges

without probable cause. See 403 U.S. at 389.

In the fifty-two years since Bivens was decided,

however, the Supreme Court has pulled back the reins to what

appears to be a full stop and no farther. Initially, the Court

5

Xi originally asserted his malicious prosecution and

fabrication of evidence claims under both the Fourth and Fifth

Amendments, but they implicate only the Fourth Amendment

because they are founded on allegations that Xi was deprived

of pretrial liberty without probable cause. See Manuel v. City

of Joliet, 580 U.S. 357, 367 (2017) (“If the complaint is that a

form of legal process resulted in pretrial detention unsupported

by probable cause, then the right allegedly infringed lies in the

Fourth Amendment.”); Geness v. Cox, 902 F.3d 344, 354 n.5

(3d Cir. 2018) (observing that a claim for reckless investigation

under the Due Process Clause “could only arise under the

Fourth Amendment”) (citing Manuel, 580 U.S. at 367).

11

extended Bivens to two other contexts: a Fifth Amendment sex-

discrimination claim brought by a former congressional staffer

whose Congressman terminated her explicitly because he felt

it “essential” that her position be held by “a man,” Davis v.

Passman, 442 U.S. 228, 230 (1979), and a claim for inadequate

prison medical care brought under the Eighth Amendment’s

Cruel and Unusual Punishment Clause, Carlson v. Green, 446

U.S. 14 (1980).

Since then, however, it has repeatedly refused to extend

the Bivens remedy to any other amendment, context, or

category of defendant. Instead, it has clearly communicated

that Bivens is a “disfavored judicial activity,” Ziglar v. Abbasi,

582 U.S. 120, 135 (2017) (internal quotation marks omitted)

(quoting Iqbal, 556 U.S. at 675), impinging on “separation-of-

powers principles,” id. at 133. Indeed, on no fewer than twelve

occasions since Bivens, the Court has expressly considered and

declined to apply a Bivens remedy,6 and we, too, have refused

6

See Egbert v. Boule, 142 S. Ct. 1793 (2022) (First and

Fourth Amendment suit against Border Patrol agent);

Hernandez v. Mesa, 140 S. Ct. 735 (2020) (Fourth and Fifth

Amendment suit against Border Patrol agent); Minneci v.

Pollard, 565 U.S. 118 (2012) (Eighth Amendment suit against

prison guards at a private prison); Hui v. Castaneda, 559 U.S.

799 (2010) (suit under the Fifth, Eighth, and Fourteenth

Amendments against United States Public Health Service

personnel); Wilkie v. Robbins, 551 U.S. 537 (2007) (claim of

retaliation by Bureau of Land Management officials against

plaintiff for his exercise of Fifth Amendment property rights);

Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (Eighth

Amendment suit against private halfway house operator under

contract with the Bureau of Prisons); F.D.I.C. v. Meyer, 510

U.S. 471 (1994) (procedural due process suit against federal

12

to extend Bivens except in one of these three established

contexts.7

Most recently, in Egbert v. Boule, 142 S. Ct. 1793

(2022), the Court went so far as to suggest that any extension

to a new context may be ultra vires. The plaintiff in Egbert

was a bed-and-breakfast operator and Border Patrol

confidential informant, who claimed that a Border Patrol agent

violated his Fourth Amendment rights by using excessive force

while conducting a search of his property. Id. at 1801–02.

Because that plaintiff’s claims, like Xi’s, implicated national

agency for wrongful termination); Schweiker v. Chilicky, 487

U.S. 412 (1988) (procedural due process suit against Social

Security officials); United States v. Stanley, 483 U.S. 669

(1987) (substantive due process suit against military officers);

Bush v. Lucas, 462 U.S. 367 (1983) (First Amendment suit

against federal employer); Chappell v. Wallace, 462 U.S. 296

(1983) (race discrimination suit against military officers).

7

See, e.g., Dongarra v. Smith, 27 F.4th 174 (3d Cir.

2022) (declining to extend Bivens to Eighth Amendment

failure-to-protect claim arising in different context than

Carlson); Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018)

(applying a Bivens remedy to Fifth Amendment failure-to-

protect claim, but not to Fifth Amendment punitive detention

claim or First Amendment retaliation claim); Davis v. Samuels,

962 F.3d 105 (3d Cir. 2020) (declining to extend Bivens

remedy to right-to-marry claim); Mack v. Yost, 968 F.3d 311

(3d Cir. 2020) (declining to extend Bivens remedy to First

Amendment retaliation claim); Vanderklok v. United States,

868 F.3d 189 (3d Cir. 2017) (same).

13

security interests, the Supreme Court’s reasoning bears

particular significance for this appeal, so we summarize it here.

At the start, the Court recited its well-established two-

part test for implying a Bivens remedy: first, we must ask

“whether the case presents ‘a new [] context’—i.e., is it

‘meaningful[ly]’ different from the three cases in which the

Court has implied a damages action,” id. at 1803 (quoting

Abbasi, 582 U.S. at 139), and if it is a new context, we ask,

second, whether “there are ‘special factors’ indicating that the

Judiciary is at least arguably less equipped than Congress to

‘weigh the costs and benefits of allowing a damages action to

proceed,’” id. (quoting Abbasi, 582 U.S. at 136). But the Court

observed that these steps “often resolve to a single question:

whether there is any reason to think that Congress might be

better equipped to create a damages remedy”; if so, it may not

expand Bivens to cover the claim. Id.

As applied to the law enforcement officer in Egbert, an

agent carrying out U.S. Customs and Border Protection’s

mandate to “interdic[t] persons attempting to illegally enter or

exit the United States or goods being illegally imported into or

exported from the United States” pursuant to 6 U.S.C.

§ 211(e)(3)(A), the Supreme Court framed its inquiry as

“whether a court is competent to authorize a damages action

not just against Agent Egbert but against Border Patrol agents

generally.” Id. at 1806. And because such an action would

implicate sensitive matters of foreign policy and national

security that are “rarely proper subjects for judicial

intervention,” the Court declined to extend Bivens to the

plaintiff’s claim, even though it “present[ed] almost parallel

circumstances to Bivens itself.” Id. at 1805 (citations omitted).

Instead, it cautioned: “the Judiciary’s authority” to imply

14

additional causes of action under the Constitution “is, at best,

uncertain.” Id. at 1803.

Guided by Egbert, we now consider whether Xi’s

claims present a “new context,” and if so, whether special

factors counsel against allowing a Bivens remedy.

2. Whether Xi’s Claims Arise in a New

Context

Even before Egbert, the Supreme Court had made clear

that the category of “new contexts” is “broad,” Hernandez v.

Mesa, 140 S. Ct. 735, 743 (2020), and this threshold test is

“easily satisfied,” Abbasi, 582 U.S. at 149. A context may be

regarded as new if it is different in any “meaningful way” from

the three contexts where the Court has recognized a Bivens

remedy, id. at 139, and even “a modest extension is still an

extension,” id. at 147. Below, we apply this test to Xi’s Fourth

Amendment and Fifth Amendment claims.

i. Fourth Amendment Claims

Xi points to factual parallels with Bivens, where federal

narcotics agents forcibly entered and searched the plaintiff’s

home without a warrant, handcuffed and arrested him in front

of his wife and children, and subjected him to a strip search.

403 U.S. at 389. But Egbert tells us that “almost parallel

circumstances” are not enough, and here, distinctions abound.

142 S. Ct. at 1805.

For one, Xi’s claims concern a different breed of law

enforcement misconduct. While Bivens involved a claim

against federal agents for an illegal arrest and warrantless

search, see 403 U.S. at 389, Xi alleges that federal agents made

15

false statements and material omissions of exculpatory

evidence that led the Government to investigate, arrest, and

prosecute him. Such “case-building activities are a different

part of police work than the apprehension, detention, and

physical searches at issue in Bivens.” Farah v. Weyker, 926

F.3d 492, 499 (8th Cir. 2019). And under Egbert, that

difference is material because it provides a “potential” reason

to think that judicial intrusion in this context would be harmful

or inappropriate. 142 S. Ct. at 1805. Specifically, evaluating

Xi’s claims would “invite a wide-ranging inquiry” into the

agent’s state of mind and “the evidence available to

investigators, prosecutors, and the grand jury.” Farah, 926

F.3d at 500.

Another distinction is that Xi seeks to hold accountable

a “new category of defendant[]”: a federal counterintelligence

agent. Egbert, 142 S. Ct. at 1803 (citations omitted). We have

considered the significance of this distinction before in

Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017).

There, we analyzed “whether a First Amendment claim against

a TSA employee for retaliatory prosecution . . . exists in the

context of airport security screenings.” Id. at 194. In

concluding it does not, we observed that “TSA employees . . .

are tasked with assisting in a critical aspect of national

security—securing our nation’s airports and air traffic.” Id. at

207. The same is true here because counterintelligence agents

like Haugen protect the nation from threats of foreign

espionage.

Nor does it matter that Haugen is a “line-level” agent,

like the officers in Bivens, rather than a “high-ranking or

supervisory official.” Opening Br. 45. While the “rank of the

officers involved” is one way in which a case “might” differ

from Bivens, it is hardly dispositive. Abbasi, 582 U.S. at 139–

16

40. Indeed, the claim in Egbert was likewise against a rank-

and-file officer, yet the Court concluded that other factual

distinctions—most notably, the national security interests—

rendered the context “new.” 142 S. Ct. at 1804–07; see also

Hernandez, 140 S. Ct. at 743 (concluding that although the

claim involved a rank-and-file border patrol agent, it was

“glaringly obvious” that his use of force in a cross-border

shooting presented a new context).

In short, the differences between Bivens and this case

make clear that Xi’s Fourth Amendment claims arise in a

context the Supreme Court has not previously countenanced.

ii. Fifth Amendment Claim

The context of Xi’s Fifth Amendment claim is even

further afield. Xi contends that he was denied Equal Protection

because he was investigated by “a Special Agent employed by

the FBI working on Chinese counterintelligence” based “on the

fact that . . . Xi is racially and ethnically Chinese.” Thus,

Davis, 442 U.S. 228, provides the closest analog, but even at a

high level, the cases are materially different.

Whereas Davis involved a claim of federal workplace

sex discrimination brought by a congressional staffer, id. at

230, here, the claim is racial discrimination brought by the

target of a federal counterintelligence investigation. These

distinctions, on their own, establish “a[] new context [and]

category of defendant[].” Abbasi, 582 U.S. at 135 (quotation

marks omitted); see also Tun-Cos v. Perrotte, 922 F.3d 514,

525 (4th Cir. 2019) (holding that Plaintiffs’ claims that ICE

agents discriminated against them on the basis of their Latino

ethnicity while enforcing the INA had “no analogue” in the

Supreme Court’s prior Bivens cases).

17

In addition, the plaintiff’s injury in Davis resulted

directly from the individual discriminatory attitude and actions

of her Congressman-employer. Xi, on the other hand, does not

allege that Haugen harbored personal animus against the

Chinese. Rather, to the extent Xi alleges that Haugen’s

investigation was “predicated at least in part on the fact that

[he] is racially and ethnically Chinese,” App. 90, he attributes

it solely to the FBI’s counterintelligence policy and the mission

of its Chinese counterintelligence unit.

The conduct that Xi challenges is also of a far broader

scope than the discrete action in Davis. The plaintiff there

challenged a specific employment decision: her termination

based on the view it was “essential” for a man to be hired. 442

U.S. at 230. Cf. Strickland v. United States, 32 F.4th 311, 372–

74 (4th Cir. 2022) (concluding that Plaintiff’s sex-

discrimination claim, brought under a retaliation theory, arose

in a new Bivens context for this reason).8 Xi, in contrast,

contests “Haugen’s investigation and initiation of

prosecution . . . based on impermissible racial and ethnic

factors” that Xi believes informed the FBI’s investigative

priorities and charging recommendation. App. 98.

8

Xi attempts to circumvent these distinctions by

arguing that his claim shares Davis’s “central feature” of

intentional discrimination based on membership in a protected

class and Bivens’s setting of a search and seizure. Reply Br.

21. But neither the Supreme Court nor this Court has adopted

this piecemeal approach, and we decline to do so now. Cf.

Perrotte, 922 F.3d at 525 (rejecting Plaintiffs’ analogous

efforts to “wed the Fifth Amendment equal protection claim of

Davis . . . with the Fourth Amendment claim of Bivens”).

18

In short, Xi’s Fifth Amendment claim—like his Fourth

Amendment claims—presents a new context that requires us to

advance to the next step: whether special factors preclude a

Bivens extension.

3. Special Factors Counseling Against

Extending Bivens

Because we are confronting claims in new contexts, we

proceed to consider at step two whether “special factors

counsel[] hesitation” in extending a Bivens remedy. Abbasi,

582 U.S. at 136 (quotation marks omitted). At this step, the

existence of “even a single reason to pause before applying

Bivens” forecloses relief, Egbert, 142 S. Ct. at 1803 (quotation

marks and citation omitted), because “in all but the most

unusual circumstances, prescribing a cause of action is a job

for Congress, not the courts,” id. at 1800. Such is the case here,

where one overriding special factor counsels against the

creation of a judicially-implied Bivens remedy: the implication

of national security interests.

In arguing that malicious prosecution and other law

enforcement misconduct claims are “standard and well

recognized,” Xi’s focus is misplaced. Opening Br. 50. Xi is

seeking relief against a federal counterintelligence official for

alleged misconduct during an investigation into potential

espionage. While malicious prosecution and civil rights claims

may commonly follow the dismissal of charges, Egbert

instructs us to concentrate not on the substance of a particular

claim, but on the context in which it is brought. Put differently,

the question is not “whether Bivens relief is appropriate in light

of the balance of circumstances in the particular case,” but

whether “[m]ore broadly . . . there is any reason to think that

judicial intrusion into a given field might be harmful or

19

inappropriate.” Egbert, 142 S. Ct. at 1805 (quotation marks

and citation omitted). And we see three reasons to think that

judicial intrusion would be both harmful and inappropriate in

the context of a case like Xi’s, with “unquestionabl[e] national

security implications.” Id. at 1804 (citation omitted).

First, as a practical matter, counterintelligence officials,

like Border Patrol agents, are on the front lines of responding

to national security threats where the prospect of damages

liability could cause them to “second-guess difficult but

necessary decisions” with significant consequences for public

safety and foreign policy. Abbasi, 582 U.S. at 142; see also

Vanderklok, 868 F.3d at 207 (concluding that “[t]he threat of

damages liability could indeed increase the probability that a

TSA agent would hesitate in making split-second decisions

about suspicious passengers”). In addition, the resolution of

such claims might well require judicial review of executive

counterintelligence policies and priorities—even in cases, like

Xi’s, where the plaintiff sues not the agency’s policy makers,

but rather those “employed by the [agency]” to implement its

directives. App. 90.

Second, implying a Bivens remedy is a “significant step

under separation-of-powers principles,” Abbasi, 582 U.S. at

133, and an overstep when it comes to “[m]atters intimately

related to foreign policy and national security,” Egbert, 142 S.

Ct. at 1804–05 (quoting Haig v. Agee, 453 U.S. 280, 292

(1981)). Those matters are “committed to the other branches,”

and courts are comparatively ill-suited to weigh the

consequences of personal damages liability on our national

security apparatus. Abbasi, 582 U.S. at 142 (citation omitted).

Xi counters that this should not count as a special factor

because he did not, in fact, pose a national security threat. But

20

as the Supreme Court explained in Hernandez, that argument

“misses the point.” 140 S. Ct. at 746. Whether Haugen had a

bona fide national security justification for his investigation of

Xi is no more relevant to this inquiry than whether the “federal

agent supposedly did not act pursuant to his law-enforcement

mission” in Egbert, 142 S. Ct. at 1808, or whether the cross-

border shooting of the Mexican national was actually justified

by national security in Hernandez, 140 S. Ct. at 746. As the

Court has explained, the question in such cases “is not whether

national security requires such conduct—of course, it does

not,” but rather, “whether the Judiciary should alter the

framework established by the political branches for

addressing” that conduct. Id.

The third counterweight to a Bivens action here is the

availability of alternative remedies. An alternative remedy “is

reason enough to limit the power of the Judiciary to infer a new

Bivens cause of action.” Egbert, 142 S. Ct. at 1804 (quotation

marks and citation omitted). And Congress allowed two such

remedies in this context: 28 U.S.C. § 1495 and the Hyde

Amendment, 18 U.S.C. § 3006A. The former permits an

award of damages to “any person unjustly convicted of an

offense against the United States and imprisoned.” 28 U.S.C.

§ 1495. The latter allows courts to award attorney’s fees and

litigation costs to a prevailing criminal defendant “when the

court finds that the position of the United States was vexatious,

frivolous, or in bad faith.” Pub. L. No. 105-119, tit. VI, § 617,

111 Stat. 2440, 2519 (1997) (codified at 18 U.S.C. § 3006A

note).

Understandably, Xi is not satisfied with these

alternatives—presumably because he was never convicted and

can only be made whole by monetary damages. But Egbert

instructs that an alternative remedy need not provide “complete

21

relief” or be as “effective as an individual damages remedy” to

foreclose Bivens relief. 142 S. Ct. at 1804, 1807 (quotation

marks and citations omitted). In fact, the focus is not on the

individual’s recovery at all. It is on deterrence, and we must

respect its decision when “Congress or the Executive has

created a remedial process that it finds sufficient to secure an

adequate level of deterrence.” Id. at 1807. Congress created

such a remedial process for the kinds of claims brought by Xi

and found sufficient deterrence in providing a remedy to one

class of plaintiff—i.e., convicted defendants—and not to

another—i.e., those whose indictments were dismissed. As a

result, we will not “second-guess that calibration by

superimposing a Bivens remedy.” Id.

***

Having found that Xi’s Fourth and Fifth Amendment

claims arise in a new context and implicate special factors

counseling against a Bivens remedy, we will affirm the District

Court’s dismissal of Xi’s Bivens claims.9

B. Xi, Qi Li, and Joyce Xi’s Claims Under the

Federal Tort Claims Act

That leaves us with Xi and his family’s FTCA claims.

The FTCA waives the federal government’s sovereign

immunity for the negligent actions of its employees. See

Berkovitz v. United States, 486 U.S. 531, 535 (1988); 28 U.S.C.

§§ 2671–2680. That waiver, however, is subject to certain

exceptions, including the discretionary function exception, at

9

Having so concluded, we need not decide whether Xi’s

Fourth and Fifth Amendment claims are also barred by

qualified immunity.

22

issue in this case. This exception effectively retains the

Government’s immunity for “[a]ny claim . . . based upon the

exercise or performance or the failure to exercise or perform a

discretionary function or duty . . . whether or not the discretion

involved be abused.” 28 U.S.C. § 2680(a). As a result, a claim

concerning conduct that falls within this exception must be

dismissed for lack of subject matter jurisdiction. Berkovitz,

486 U.S. at 533.

The Supreme Court has enunciated a two-part test for

determining if the discretionary function exception applies.

First, we consider the nature of the conduct and decide whether

it “involv[es] an element of judgment or choice.” United States

v. Gaubert, 499 U.S. 315, 322 (1991) (citation omitted).

Where it does not involve judgment or choice—such as where

“a ‘federal statute, regulation, or policy specifically prescribes

a course of action for an employee to follow’”—the inquiry is

at an end and the exception is inapplicable because the conduct

is not discretionary; “the employee has no rightful option but

to adhere to the directive.” Id. (citation omitted). But where

the employee does have a choice, we consider, at step two

“whether that judgment is of the kind that the . . . exception

was designed to shield.” Id. at 322–23 (quotation marks

omitted).

Essential for today’s purposes, we—and nearly every

circuit to have considered the issue—have held that “conduct

cannot be discretionary if it violates the Constitution” because

“[f]ederal officials do not possess discretion to violate

constitutional rights.” U.S. Fid. & Guar. Co. v. United States,

23

837 F.2d 116, 120 (3d Cir. 1988) (citation omitted).10 And that

is where we take issue with the District Court’s reasoning.

10

See Nieves Martinez v. United States, 997 F.3d 867,

877 (9th Cir. 2021) (“Even if the agents’ actions involved

elements of discretion, agents do not have discretion to violate

the Constitution.”); Loumiet v. United States, 828 F.3d 935,

943 (D.C. Cir. 2016) (“[T]he FTCA’s discretionary-function

exception does not provide a blanket immunity against tortious

conduct that a plaintiff plausibly alleges also flouts a

constitutional prescription.”); Limone v. United States, 579

F.3d 79, 101 (1st Cir. 2009) (“It is elementary that the

discretionary function exception does not immunize the

government from liability for actions proscribed by federal

statute or regulation. . . . Nor does it shield conduct that

transgresses the Constitution.”); Raz v. United States, 343 F.3d

945, 948 (8th Cir. 2003) (“We must also conclude that the

FBI’s alleged surveillance activities fall outside the FTCA’s

discretionary-function exception because Raz alleged they

were conducted in violation of his First and Fourth

Amendment rights.”); Medina v. United States, 259 F.3d 220,

225 (4th Cir. 2001) (quotation marks and citations omitted)

(“[W]e begin with the principle that federal officials do not

possess discretion to violate constitutional rights or federal

statutes.”); Myers & Myers, Inc. v. USPS, 527 F.2d 1252, 1261

(2d Cir. 1975) (citations omitted) (“It is, of course, a tautology

that a federal official cannot have discretion to behave

unconstitutionally or outside the scope of his delegated

authority.”); but see Shivers v. United States, 1 F.4th 924 (11th

Cir. 2021); Linder v. United States, 937 F.3d 1087 (7th Cir.

2019).

24

The District Court acknowledged that officials lack

discretion to violate the Constitution, but it seems to have

assumed, nonetheless, that the discretionary function exception

immunized all but “clearly established” constitutional

violations. After observing that judgments about whether and

how to investigate a suspect are generally discretionary, the

District Court harkened back to its alternative ground for

dismissing Xi’s Bivens claims—that Haugen also would be

entitled to qualified immunity because any constitutional rights

he violated were not “clearly established.” On that basis, and

without further discussion, the District Court held Xi’s FTCA

claims “fall squarely within the discretionary function

exception.” App. 61.

Below we consider (1) whether the discretionary

function exception excludes all constitutional violations or

only violations that are “clearly established,” and (2) whether

the allegations in Xi’s Complaint were sufficient to state a

constitutional claim.

1. The District Court’s “Clearly Established”

Requirement

In finding dispositive that Haugen’s conduct, even if

unconstitutional, did not violate “clearly established” rights,

the District Court imported a requirement for qualified

immunity into the discretionary function analysis. See App. 49

(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (other

citations omitted). As we clarify today, however, that “clearly

established” requirement has no place there, where it is

unmoored from both precedent and purpose.

As for precedent, over thirty years of binding circuit

precedent holds that the discretionary exception does not apply

25

to conduct that violates the Constitution regardless of whether

the constitutional rights at issue were “clearly established.”

See, e.g., U.S. Fid. & Guar. Co., 837 F.2d at 120 (“[C]onduct

cannot be discretionary if it violates the Constitution, a statute,

or an applicable regulation. . . .”); Pooler v. United States, 787

F.2d 868, 871 (3d Cir. 1986), abrogated on other grounds by

Millbrook v. United States, 569 U.S. 50, 57 (2013) (“[I]f the

complaint were that agents of the government in the course of

an investigation had violated constitutional rights or federal

statutes, the outcome would be different since federal officials

do not possess discretion to commit such violations.”).11 The

reason is simple: because government officials never have

discretion to violate the Constitution, unconstitutional

11

Defendants’ argument that our ruling in Bryan v.

United States, 913 F.3d 356 (3d Cir. 2019), broke this line of

precedent is unpersuasive. There, the plaintiffs argued that

certain border searches were impermissible under United

States v. Whitted, 541 F.3d 480 (3d Cir. 2008)—a decision

issued the day before the searches occurred. We held that the

officers were entitled to qualified immunity because they could

not reasonably have been informed about Whitted, and

resolved Plaintiffs’ FTCA claims in a single sentence stating

“the CBP officers did not violate clearly established

constitutional rights, [so] the FTCA claims also fail.” Bryan,

913 F.3d at 364. We did so without briefing, analysis, or

discussion of the issue. We did not adopt a new test for the

discretionary exception or qualify the reach of our prior

precedent—which did not impose a clearly established

requirement. See Holland v. N.J. Dep’t of Corr., 246 F.3d 267,

278 n.8 (3d Cir. 2001) (“[T]o the extent that [a case within the

circuit] is read to be inconsistent with earlier case law, the

earlier case law . . . controls.”).

26

government conduct is per se outside the discretionary function

exception.12

Nor, in the discretionary function context, would such a

requirement serve a purpose. The Supreme Court excluded

clearly established constitutional violations from the

protections of qualified immunity because it would be unfair

to hold individual officers liable for “conduct not previously

identified as unlawful,” Harlow, 457 U.S. at 818, and the Court

was mindful of the chilling effect and “social costs” of that

liability. Id. at 813–15. But these concerns are absent in the

FTCA context, where only the federal government—not

individual officers—can be liable. See 28 U.S.C. § 2674; see

also Owen v. City of Independence, 445 U.S. 622, 655–56

(1980) (holding that government entities are not entitled to

qualified immunity and justifying qualified immunity for

individual officers based on “the concern that the threat of

personal monetary liability will introduce an unwarranted . . .

consideration into the decisionmaking process . . . .”).

Thus, the District Court erred in dismissing Xi’s FTCA

claims on the ground that Xi failed to demonstrate a violation

of “clearly established” constitutional rights. At the motion-

to-dismiss stage, all a plaintiff must do to negate the

discretionary function exception is plausibly allege a

12

While every action that violates a clearly established

constitutional right violates the Constitution, the converse is

not true. See, e.g., Pearson v. Callahan, 555 U.S. 223, 236

(2009) (acknowledging it is “often beneficial” to break up

these inquiries).

27

constitutional violation. We consider, then, whether Xi has

done so here.

2. Whether Xi Has Plausibly Alleged a

Constitutional Violation

To determine whether Xi has plausibly alleged a

constitutional violation, we accept the facts alleged in the

Complaint as true and draw all inferences in Xi’s favor. Rivera

v. Monko, 37 F.4th 909, 914 (3d Cir. 2022). For the reasons

set forth below, we conclude that the District Court correctly

dismissed Xi’s Fifth Amendment claim but erred in holding he

failed to state a Fourth Amendment claim.

i. Xi’s Fifth Amendment Claim

To state a Fifth Amendment claim for selective

enforcement, a plaintiff must demonstrate that the defendant

targeted him “not for a neutral, investigative reason but for the

purpose of discriminating on account of race, religion, or

national origin.” Iqbal, 556 U.S. at 677. “[B]are assertions”

that the defendant acted with discriminatory purpose will not

suffice. Id. at 681. The plaintiff must set forth “sufficient

factual matter” to show that the defendant acted “‘because of,’

not merely ‘in spite of’” a protected characteristic. Id. at 677,

681 (citation omitted); see also Jewish Home of E. Pa. v. Ctrs.

for Medicare and Medicaid Servs., 693 F.3d 359, 363 (3d Cir.

2012) (citation omitted) (to maintain selective enforcement

claim, plaintiff must provide “evidence of discriminatory

purpose, not mere unequal treatment or adverse effect”); PG

Publ’g Co. v. Aichele, 705 F.3d 91, 115 (3d Cir. 2013)

(concluding plaintiffs failed to allege equal protection claim

where allegations showed “no sign of ‘clear and intentional

28

discrimination’” (quoting Snowden v. Hughes, 321 U.S. 1, 8

(1944))).

Here, the Complaint’s allegations of discriminatory

purpose are wholly conclusory and the circumstantial evidence

to which Xi points does not support an inference of

discrimination. The only direct allegations of discriminatory

intent are that Haugen’s “investigation . . . was predicated at

least in part on the fact that Professor Xi is racially and

ethnically Chinese,” App. 90, and that Haugen “considered

Professor Xi’s race and ethnicity in providing false

information” with the “intent to secure false charges,” App. 91.

But such “conclusory . . . allegations” are “not entitled to be

assumed true.” Iqbal, 556 U.S. at 681 (citations omitted). Xi

also posits that the government had dismissed the indictments

of three other Chinese-American scientists prior to trial, but the

Complaint does not allege that Haugen had any involvement in

those indictments, let alone explain the basis for their

dismissal, so it sheds no light on the intent of the particular

agent in this particular case.

We may not fill this gap in Xi’s pleading with

speculation. Xi posits that because “there was no factual basis”

to indict him, “what motivated Haugen to ignore the lack of

probable cause and falsify information” must have been racial

or ethnic bias. Reply Br. 8. But there also may be non-

discriminatory explanations for Haugen’s investigation, and

the possibility of a discriminatory motive is insufficient.

Where, as here, the allegations are merely consistent with

liability, the claim “stops short of the line between possibility

and plausibility of entitlement to relief,” Iqbal, 556 U.S. at 678

(quotation marks and citation omitted), so Xi’s Fifth

Amendment claim was properly dismissed.

29

ii. Xi’s Fourth Amendment Claims

Xi fares better with his Fourth Amendment claims,

however. Those claims—brought under the rubrics of

malicious prosecution, fabrication of evidence, and

unreasonable search and seizure—all turn on whether the

Government investigated, searched, and prosecuted him

without probable cause. Because a grand jury indictment

“constitutes prima facie evidence of probable cause to

prosecute,” Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989),

and the search and seizure here were conducted pursuant to

duly authorized warrants, we begin with the presumption that

Haugen acted with probable cause, see United States v. Yusuf,

461 F.3d 374, 383 (3d Cir. 2006). But that presumption may

be rebutted by a plausible allegation that the indictment was

“procured by fraud, perjury or other corrupt means,” Rose, 871

F.2d at 353 (citations omitted), or that Haugen “knowingly and

deliberately, or with a reckless disregard for the truth, made

[materially] false statements or omissions” in the warrant

application, Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir.

1997).

Xi has met that pleading standard here because the

Complaint alleged at least seven discrete instances of Haugen

intentionally, knowingly, and/or recklessly providing false

information that led to Xi’s prosecution. It alleged, for

example, that before charges were filed, the inventor of the

pocket heater informed Haugen that the emails in question

described an “entirely different” device from the pocket

heater—one that Xi himself had invented, App. 83; and that the

pocket heater technology was not “revolutionary,” but “widely

known,” App. 84. It also alleged that Haugen accused Xi of

“a scheme to obtain the pocket heater technology” at a point in

time when, as Haugen knew or recklessly disregarded, that

30

technology did not yet exist, id., and that Haugen knew or

recklessly disregarded that Xi never sent samples or test results

from the pocket heater to colleagues in China, but only

engaged with them in normal academic collaboration. Such

detailed allegations are hardly the “naked assertion[s] devoid

of further factual enhancement” that would justify dismissal.

George v. Rehiel, 738 F.3d 562, 581 (3d Cir. 2013) (quotation

marks and citation omitted).

In concluding otherwise, the District Court reasoned

that the allegations were inadequate because Haugen may not

have become aware of these falsehoods until after he conveyed

them to prosecutors, and after the indictment was returned.

But at this stage, we are required to accept plaintiff’s

allegations as true and draw all inferences in his favor, see

Univ. of the Scis., 961 F.3d at 208; and here, Xi has explicitly

alleged that Haugen knew or recklessly disregarded evidence

of Xi’s innocence even “[b]efore the Indictment was sought

and returned.” App. 73. In other words, Xi has rebutted the

presumption of probable cause and plausibly alleged a Fourth

Amendment violation. So the discretionary function exception

provides no bar to the pursuit of his FTCA claims premised on

the same conduct.

IV. Conclusion

For the foregoing reasons, we will affirm the District

Court’s dismissal of Xi’s Bivens claims, reverse its dismissal

of Appellants’ FTCA claims, and remand for further

proceedings in accordance with this opinion.13

13

Given the narrow issues before us, we have no

occasion to reach other questions that may be raised before the

31

District Court, and that may provide alternative bases for

dismissal.

32

BIBAS, Circuit Judge, concurring.

I join the Court’s opinion in full. I write separately only to

flag that it might be time for the Supreme Court to revisit the

test for when the FTCA’s discretionary-function exception ap-

plies. The Court last addressed this test more than thirty years

ago. See United States v. Gaubert, 499 U.S. 315 (1991). Before

that, courts were having “difficulty in applying [it].” Id. at 335

(Scalia, J., concurring). So Gaubert sought to clarify things.

See id. at 322–25 (majority opinion).

But courts are still struggling. See, e.g., 14 Charles Alan

Wright, Arthur R. Miller & Helen Hershkoff, Federal Practice

& Procedure § 3658.1 (4th ed. 2023) (noting that the “exact

boundaries of the exception remain unclear, despite an im-

mense amount of precedent”). Similar facts have led to oppo-

site conclusions. To give just a few examples, courts have dis-

agreed about whether the discretionary-function exception co-

vers the following conduct:

• The government’s failure to maintain a road. Compare

Walters v. United States, 474 F.3d 1137, 1140 (8th Cir.

2007) (exception applies), Mitchell v. United States,

225 F.3d 361, 366 (3d Cir. 2000) (same), and Baum v.

United States, 986 F.2d 716, 722, 724 (4th Cir. 1993)

(same), with Bolt v. United States, 509 F.3d 1028,

1033–35 (9th Cir. 2007) (exception does not apply),

Williams v. United States, 2018 WL 3655901, at *6 (D.

Md. Aug. 2, 2018) (same), and Quigley v. United States,

927 F. Supp. 2d 213, 224 (D. Md. 2012) (same).

• The government’s failure to post warning signs on fed-

eral property. Compare Rosebush v. United States, 119

1

F.3d 438, 444 (6th Cir. 1997) (exception applies), and

Valdez v. United States, 56 F.3d 1177, 1180 (9th Cir.

1995) (same), with Duke v. Dep’t of Agric., 131 F.3d

1407, 1412 (10th Cir. 1997) (exception does not apply),

and Parrish v. United States, 157 F. Supp. 3d 434, 447

(E.D.N.C. 2016) (same).

• The government’s management of tree hazards. Com-

pare Merando v. United States, 517 F.3d 160, 174 (3d

Cir. 2008) (exception applies), and Autery v. United

States, 992 F.2d 1523, 1531 (11th Cir. 1993) (same),

with Walen v. United States, 246 F. Supp. 3d 449, 466

(D.D.C. 2017) (exception does not apply).

• The government’s failure to provide clean water at

Camp Lejeune. Compare In re Camp Lejeune N.C. Wa-

ter Contamination Litig., 263 F. Supp. 3d 1318, 1356–

57 (N.D. Ga. 2016) (exception applies), aff’d, 774 F.

App’x 564 (11th Cir. 2019), Snyder v. United States,

504 F. Supp. 2d 136, 141 (S.D. Miss. 2007) (same),

aff’d, 296 F. App’x 399 (5th Cir. 2008), and Tate v.

Camp Lejeune, 2019 WL 7373699, at *2 (E.D.N.C.

Dec. 30, 2019) (same), with Pride v. Murray, 595 F.

Supp. 3d 453, 463 (W.D.N.C. 2022) (exception does not

apply), and Washington v. Dep’t of the Navy, 446 F.

Supp. 3d 20, 29 (E.D.N.C. 2020) (same).

Though case-specific differences may partly explain these dis-

agreements, there is also significant confusion about how to

apply the test. Compare, e.g., Merando, 517 F.3d at 172–75

(finding that tree management involves policy judgment), with

2

Walen, 246 F. Supp. 3d at 465–66 (finding that tree manage-

ment involves professional rather than policy judgment).

And there are at least three longstanding, recurring circuit

splits involving the discretionary-function exception:

• First, there is the split we weigh in on today: whether

unconstitutional conduct necessarily falls outside the

exception. See Maj. Op. 24 n.10.

• Second, there is a split over whether the exception ap-

plies when the challenged act was careless rather than a

considered exercise of discretion. Compare Willis v.

Boyd, 993 F.3d 545, 549 (8th Cir. 2021) (carelessness

covered by exception), Lam v. United States, 979 F.3d

665, 682 (9th Cir. 2020) (same), and Ball v. United

States, 967 F.3d 1072, 1077 (10th Cir. 2020) (same),

with Coulthurst v. United States, 214 F.3d 106, 111 (2d

Cir. 2000) (carelessness outside exception), Rich v.

United States, 811 F.3d 140, 147 (4th Cir. 2015) (same),

and Palay v. United States, 349 F.3d 418, 432 (7th Cir.

2003) (same).

• Finally, there is a split over whether claims that fall

within the FTCA’s law-enforcement proviso must also

fall outside the discretionary-function exception. Com-

pare Nguyen v. United States, 556 F.3d 1244, 1260

(11th Cir. 2009) (proviso trumps exception), with Joiner

v. United States, 955 F.3d 399, 406 (5th Cir. 2020) (pro-

viso “does not automatically trump” exception), Linder

v. United States, 937 F.3d 1087, 1089 (7th Cir. 2019)

(same), Medina v. United States, 259 F.3d 220, 224–26

(4th Cir. 2001) (same), Gasho v. United States, 39 F.3d

3

1420, 1433 (9th Cir. 1994), and Gray v. Bell, 712 F.2d

490, 507–08 (D.C. Cir. 1983) (same).

This longstanding confusion shows the need for more guidance

on how to apply the exception.

The current test also seems divorced from the exception’s

text. The test asks whether the challenged “action” involved

the “permissible exercise of policy judgment.” Berkovitz v.

United States, 486 U.S. 531, 536–37 (1988). But the text

speaks of a discretionary “function or duty.” 28 U.S.C.

§ 2680(a). Compare id., with id. § 2680(e) (referencing an “act

or omission”). These words suggest that courts should look at

the kind of activity the officer was performing when the chal-

lenged action occurred, not the action itself.

This higher-level approach is confirmed by the ordinary le-

gal meaning of the phrase “discretionary function” when the

FTCA was enacted. The phrase was used to describe a public

officer’s immunity when sued for torts in his personal capacity.

See William L. Prosser, Handbook of the Law of Torts § 108,

at 1075–79 (1941 ed.). Courts categorized certain kinds of gov-

ernment activities as either “ministerial” or “discretionary.” Id.

For example, the “care of prisoners” and “driving of vehicles”

were ministerial. Id. at 1077. So a public officer could be held

liable for any negligence or wrongdoing in their performance.

Id. Other activities, like the “routing of a highway” or “assess-

ment of property for taxation,” were discretionary. Id. at 1076.

So an officer was immune from suit even if he did those activ-

ities negligently. Id.

This approach is not only more consistent with the text, but

can be applied earlier in a suit. The current test is fact- and

4

time-intensive. Courts must comb through and interpret federal

regulations and policies, looking for anything that forbids the

challenged conduct. See, e.g., S.R.P. ex rel. Abunabba v.

United States, 676 F.3d 329, 334–36 (3d Cir. 2012) (reviewing

various National Park Service policies). Sometimes, plaintiffs

need discovery. See Berkovitz, 486 U.S. at 547–48. These bur-

dens are particularly concerning because the application of the

exception goes to whether the United States has waived its sov-

ereign immunity; thus, the government must go through a

mini-trial just to figure out whether it is in fact immune from

suit. By contrast, the relevant category of officer activity

should be apparent from the face of the complaint. And for

guidance on how to categorize an activity, courts can look to

how that activity (or an analogous one) was categorized in suits

against public officials when the FTCA was enacted.

* * * * *

With Bivens sharply limited, the stakes of clarifying the

scope of the discretionary-function exception grow ever

greater. Plaintiffs like Xi must increasingly rely on the FTCA

to vindicate their constitutional rights. They, the government,

and the courts would all benefit from clearer guidance.

5