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
No. 21-2798
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
(Filed May 24, 2023)
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges.
PRECEDENTIAL. 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.
Opinions of the United States Court of Appeals for the Third Circuit
5-24-2023
Xiaoxing Xi v. Andrew Haugen
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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
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
KRAUSE, Circuit Judge.
Not all rights have remedies, even when they are enshrined in the
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
I. Factual and Procedural Background2
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
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,
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
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
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 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.
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
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under
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.
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
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
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
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
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
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
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 139–40.
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).
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.
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
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
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:
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
* * *
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);
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,
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
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
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
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
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.
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
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
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 applies. 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 immense amount of precedent“). Similar facts have led to opposite conclusions. To give just a few examples, courts have disagreed about whether the discretionary-function exception covers 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 federal property. Compare Rosebush v. United States, 119 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. Compare 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. Water 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 disagreements, 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
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 applies 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. Compare 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) (proviso “does not automatically trump” exception), Linder, 937 F.3d at 1089 (same), Medina, 259 F.3d at 224–26 (same), Gasho v. United States, 39 F.3d 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, 486 U.S. at 536–37. But the text speaks of a discretionary “function or duty.”
This higher-level approach is confirmed by the ordinary legal 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 government 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 “assessment of property for taxation,” were discretionary. Id. at 1076. So an officer was immune from suit even if he did those activities 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
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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.