This сase concerns the tragic death of Antonio Vélez-García (“Vélez”), an undercover Federal Bureau of Investigation (“FBI”) cooperating witness, who was murdered by a gang member while assisting the FBI in a criminal investigation into Puerto Rico gang-related drug trafficking involving the use of firearms.
Vélez’s parents, Antonio Vélez-Díaz and Santa García-Hernández, his widow, Ya-haira Fajardo-Correa, and his minor daughter, Antoneeha Vélez-Fajardo (“Vé-lez’s relatives”), brought an action for money damages in the United States District Cоurt for the District of Puerto Rico against the individual law enforcement agents with whom Vélez was cooperating at the time of his death — FBI agents Amado Vega-Irizarry, Miguel A. Marrero, and Jane Erickson, and Puerto Rico police officers Víctor M. López and Teodoro Le-brón — in their individual capacities. Vé-lez’s relatives seek over ten million dollars in damages based on two principal claims for monetary relief: (1) a claim pursuant to
Bivens v. Six Unknown Federal Narcotics Agents,
The United States and the individual defendants now bring the present interlocutory appeal challenging the district court’s opinion and order, which denied a motion to substitute the United States as defendant for the state law claim pursuant to the Westfall Act, 28 U.S.C. § 2679, and to dismiss the Bivens claim.
I.
A. Factual Background
On or about January 16, 2003, federal agents arrested Vélez for possession of controlled substances and informed him that he might serve a long prison sentence fоr his criminal activity. Vélez told the agents that he did not want to go to prison, and the agents asked Vélez if he was interested in cooperating with them. Vé-lez later accepted the offer to cooperate and worked with the FBI as a cooperating witness for nearly two months until he was *74 killed in the early morning of March 5, 2003.
On the evening of March 4, 2003, Vélez was working with the defendant agents to set up large-scale transactions of controlled substances and/or firearms in Guaynabo, Puerto Rico. The agents installed a video camera in the van Vélez used for the transaction and attached a recording device to Vélez’s body. Vélez remained in constant communication with the agents via the recording device. After about four hours of contact with the gang members, including David Gómez-Ohneda, Vélez repeatedly stated through the body-recording device that he was tired and wanted to leave. Shortly thereafter, Gó-mez, without warning, shot Vélez approximately eight times at close range and killed him.
In their complaint, plaintiffs aver thаt Vélez’s murder was the direct result of the failure of the defendant agents to follow unspecified FBI and Puerto Rico police regulations, policies and directives in the handling of informants and witnesses cooperating with the government. In particular, plaintiffs contend that the agents were reckless in failing to protect Vélez, “because they left [Vélez], by himself, far away from themselves.” Compl. ¶ 21. Plaintiffs thus claimed damages pursuant to the Fifth Amendment of the United States Constitution as well as Article II, Sections 8 and 10 of the Constitution of the Commonwealth of Puerto Rico and the Puerto Rico statutory law of negligence, P.R. Laws Ann. Tit. 31, § 5141. 1
B. Procedural History
The individual defendants and the United States moved to dismiss both the state law and federal constitutional claims. With respect to the claims arising under Puerto Rico statutory and constitutional law, the United States moved to substitute itself for the individual defendants pursuant to Section 6 of the Westfall Act, 28 U.S.C. § 2679(d), by certifying that the defendants were acting within the scope of their federal employment. At thе same time, the individual defendants moved to dismiss the federal constitutional claim on the grounds that plaintiffs’ complaint did not state a constitutional violation and, alternatively, that the officers were entitled to qualified immunity. Plaintiffs did not oppose the motion to dismiss. On March 25, 2004, the district court issued an opinion and order denying the motion for substitution and dismissal.
The issues before us in this interlocutory appeal are (1) whether the district court erred by not substituting the United States as the defendant for plaintiffs’ damages claim based on Puerto Rico law, and (2) whether the district court erred in denying the individual agents qualified immunity from this Bivens claim; this encompasses, as the first part of the immunity test, whether a constitutional claim has been stated at all.
II.
A. Westfall Act Substitution
In the case below, the United States certified that the individual defendants were acting within the scope of their federal employment and moved to substitute itself for the individual defendants pursuant to Section 6 of the Westfall Act, 28 U.S.C. § 2679(d).
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“Under the Westfall Act, the Attorney General can certify thаt a federal employee named as a defendant in a civil case was ‘acting within the scope of his office or employment at the time of the incident’ that serves as the basis for a tort claim against that employee.”
Lyons v. Brown,
1. Jurisdiction
At the threshold, plaintiffs-appellees argue that the United States does not have standing to appеal the district court’s denial because the United States is not a party to the suit and has not attempted to intervene. We disagree. In addition to recognizing “an exception to the only a party may appeal rule that allows a non-party to appeal the denial of a motion to intervene,”
Microsystems Software, Inc. v. Scandinavia Online AB,
Plaintiffs also argue that the district court’s order denying substitution is not yet ripe for appeal because the government’s certification is not conclusive and plaintiffs require discovery to challenge the certification.
While wе agree that the government’s certification is subject to judicial review such that the individual agents might be later re-instated as defendants in this case,
see Davric,
Plaintiffs contend that the word “shall” in 28 U.S.C. § 2679(d)(1), is not mandatory, citing
Gutiérrez de Martinez,
Plaintiffs’ stated intent to challenge the filing and service of a certification in the appropriate form, and their need for discovery to mount this challenge are irrelevant to this interlocutory appeal. The United Stаtes and individual defendants challenge the substance of the district court’s denial of the initial substitution of the United States upon certification, as provided for in § 2679(d)(1). The possibility that the district court may later determine that a federal employee was acting outside the scope of his or her employment, contrary to the government’s certification and should be “re-substituted,” has no bearing on the fact that the district court should have initially substituted the United States as defendant “[u]pon certificаtion.” Id.
For these reasons, we find that the United States has standing to appeal the denial of Westfall Act substitution along with the individual defendants.
2. Merits
The district court denied the motion to substitute the United States on the basis of its conclusion that an exception to substitution applied in this case because the plaintiffs asserted a Bivens cause of action under the federal Constitution, in addition to the state law claims. We find that the fact that this case raises both state law and federal constitutional claims does not render inapplicable the Westfall Act’s requirement for the substitution of the United States for the defendants with respect to the state law claims.
Section 5 of the Westfall Act, 28 U.S.C. § 2679(b), provides that the remedy against the United States under the Federal Tort Claims Act (FTCA) for “personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter” and shall “preclude [ ]” any other damages action “arising out of or relating to the same subject matter.” 28 U.S.C. § 2679(b)(1) (emphases added). The second paragraph of Section 5 then provides two exceptions to the exclusiveness of the remedy and preclusion of other damage suits, including that “[pjaragraph (1) does not extend or apply to a civil action against an employee of the Government ... which is brоught for a violation of the Constitution of the United States.” Id. at § 2679(b)(2).
This exception for federal constitutional violations, however, applies only to paragraph (1) of Section 5,
id.
§ 2679(b)(1), and not to the provision for substitution of the United States “[ujpon certification by the Attorney General,” which appears in § 2679(d). Indeed, courts routinely order Westfall Act substitution of the United States as the defendant for state law claims when both state law and federal constitutional damage claims are asserted аgainst federal employees.
See, e.g., Davric,
Thus, we find that the district court’s failure to make a partial substitution of the *77 United States as party defendant as to the state law claims was error. 2
B. Bivens claim
The individual agents contend that the district court should have dismissed plaintiffs’ federal Bivens claim against the agents because the individual agents are entitled to qualified immunity. See Fed. R.Civ.P. 12(b)(6). We review the denial of a motion to dismiss de novo, assuming plaintiffs’ allegations are true and making all reasonable inferences in favor of the plaintiffs. See Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir.2002).
1. Jurisdiction
Before reaching the merits, however, we must consider the threshold issue of jurisdiction. This court would not normally have interlocutory jurisdiction over the district court’s denial of the motion to dismiss for failure to state a constitutional violation because it is not a “final decision” in the sense required by 28 U.S.C. § 1291 (conferring appellate jurisdiction over “final decisions” of the district courts). This issue, however, is the first question courts must answer when cоnsidering a claim qualified immunity. We will, therefore, address this issue in our qualified immunity analysis.
Appellate courts have jurisdiction over interlocutory appeals from denials of qualified immunity where “the denial rests on purely legal questions and not on disputed issues of fact.”
Riverdale Mills Corp. v. Pimpare,
Plaintiffs contend that the individual defendants do not have standing to appeal the district court’s denial of defendants’ motion to dismiss because the district court found that material questions of fact remain on the issue of whether the defendants should be granted qualified immunity. The district court dеtermined that there is a disputed factual issue as to whether defendants’ actions were sufficiently reckless to rise to the level of a constitutional violation and thus declined to grant qualified immunity without further fact-finding.
Defendants appeal the district court’s rejection of their argument that, as a matter of law, the facts alleged by the plaintiffs cannot amount to a violation of substantive due process under clearly established law. In other words, defendants-appellants frame the issuе of whether plaintiffs have stated a claim upon which relief may be granted as a purely legal rather than factual issue. We therefore find that appellate jurisdiction exists over the qualified immunity issue.
*78 2. Merits
The justification for the qualified immunity doctrine is that “public officials performing discretionary functions should be free to act without fear of retributive suits for damages except when they should have understood that particular conduct was unlawful.”
Limone v. Condon,
Determining whether officials are entitled to qualified immunity involves a three-part test.
See Rivera-Jiménez v. Pierluisi,
Defendants’ qualified immunity defense was brought pursuant to Federal Rule of Civil Procedure 12(b)(6) in a motion for failure to state a claim upon which relief may be granted. The qualified immunity analysis must, therefore, be based solely on the facts stated in plaintiffs’ complaint.
Riverdale Mills,
At the threshold, we consider whether the allegations, taken in the light most favorable to the plaintiffs, could support a conclusion that the individual agents violated Yélez’s constitutional rights. At this stage of the inquiry, “courts must not define the relevant constitutional right in overly general terms, lest they strip the qualified immunity defense of all meaning.”
Butera v. District of Columbia,
Plaintiffs alleged that Vélez’s murder was a direct result of defendants’ failure to follow unspecified FBI and local police regulations concerning the handling of informants and witnesses cooperating with the government. Thus, plaintiffs asserted a
Bivens
claim alleging a violation of Fifth Amendment substantive due process. Defendants countered that there can be no Due Process violation when the government fails to protect an individual from private violence and, therefore, the
Bivens
claim should be dismissed. The district court acknowledged that “negligent or even wilfully reckless state action will not create a constitutional violation when the government was only causally connected to the hаrm.”
Vélez-Díae v. Vegai-Irizarry,
No. 04-1773, slip op. at 10 (D.P.R. Mar 25, 2004) (citing
Monahan v. Dorchester Counseling Ctr., Inc.,
The Due Process Clause applies only to governmental deprivations of life,
*79
liberty, or property and thus provides no guarantee of government protection from harms caused by private parties.
See
U.S. Const, amend. V. (“No person shall ... be deprived of life, liberty, or property, without due process of law.”). This court has held that to establish a substantive due process claim plaintiffs must first establish a deprivation of a “protected interest” in life, liberty, or property.
Rivera v. Rhode Island,
Plaintiffs must also show that the deprivation of the protected right was caused by government conduct. It is well-settled that the due process provision of the Fifth Amendment serves as a limitation only on governmental, not private, action.
See Gerena v. P.R. Legal Servs., Inc.,
Nevertheless, in scenarios in which government officials actively direct or assist private actors in causing harm to an individual, some courts have treated the government’s involvement as amounting to government сonduct. For example, “if the police had handed [Gómez] the gun with instruction to shoot [Vélez],
cf. Hemphill v. Schott,
Outside contexts in which the action of government officials (or their joint tortfea-sors) injure citizens, this court has been careful to limit substantive due process to the parameters articulated by the Supreme Court in
DeShaney v. Winnebago County Department of Social Services,
The
DeShaney
Court also recognized a limited exception to this rule which applies to circumstances in which the government has a “special relationship” with the individual because government action has deprived that individual of the liberty needed to protect himself.
Id.
at 200.- In
*80
such situations a constitutional duty to protect may arise. “The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposеd on his freedom to act on his own behalf.”
Id.
“This court has recognized that this [special] relationship, and thus a constitutional duty, may exist when the individual is incarcerated or is involuntarily committed to the custody of the state.”
Rivera,
Plaintiffs in this case, however, have not identified a custodial relationship between Vélez and the agents that constitutes a “special relationship” creating an affirmative constitutional duty to protect. Vélez was not in custody or involuntarily committed while he was acting as аn informant for the federal agents, but rather was free to decline to cooperate further with the agents at any point.
In addition to the special “custodial” relationships, the
DeShaney
Court suggested, but never expressly recognized, the possibility that liability might arise where the state creates or substantially contributes to the creation of a danger. Specifically, the Supreme Court stated that “fw]hile the State may have been aware of the dangers
... it played no part in their creation, nor did it do anything to render him more vulnerable to them.” DeShаney,
Most of the circuit courts have now acknowledged that the existence of a constitutional violation is possible, on particular facts, under a “state-created danger” theory of liability.
See Butera,
The Fifth Circuit, however, has flatly rejected the “state-created danger” theory of liability.
See Beltran v. City of El Paso,
“This court has, to date, discussed the state created danger theory, but never found it actionable on the facts alleged.”
Rivera,
In determining whether Vélez’s relatives have alleged a substantive due process violation, we keep in mind that “in a state creation of risk situation, where the ulti
*81
mate harm is caused by a third party, ‘courts must be careful to distinguish between conventional torts and constitutional violations, as well as between state inaction and action.’”
Id.
at 36 (quoting
Soto v. Flores,
We hold that plaintiffs have not alleged facts to support a claim based on the state created danger theory. Plaintiffs’ theory may be that the government owes a duty to all cooperating witnesses to protect them from harm. There are risks inherent in being a cooperating witness, but the state does not create those dangers, others do, and thе witness voluntarily assumes those risks.
See Summar v. Bennett,
We leave open the question whether, nonetheless, the state may violate substantive due process as to cooperating witnesses if it takes certain actions, such as sending a cooperating witness to what the state knows would be his certain death. Such action may shock the conscience by demonstrating “deliberate indifference.”
See Butera,
Plaintiffs have therefore failed to carry their burden under the threshold inquiry for qualified immunity. Absent a showing that the agents’ conduct violated a constitutional right, qualified immunity applies.
III.
For the reasons stated, the order of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.
Reversed and Remanded.
Notes
. Plaintiffs also made a claim against Puerto Rico police officers López and Lebrón pursuant to 42 U.S.C. § 1983, but that claim was dismissed by the district court on the ground that these defendants were acting under color of federal law, rather than state law, as federally deputized agents. That ruling is not at issue in this interlocutory appeal.
. While the United States argued below that the FTCA claim against it should be dismissed once the government is substituted as the defendant party, that issue is not before this court. Our jurisdiction over this interlocutory appeal extends only to the collateral order denying the United States’ request for party status through substitution.
. This court recently noted that
[i]t is not clear from the "creation of danger" language in DeShaney whether a state action which enhances or creates danger to an individual would provide a separate exception to the general rule of no duty to protect, or whether the language is simply in service of the special relationship exception and provides a set of circumstances where the state's actions might create a "special relationship” and thus a duty to protect.
Rivera,