Xiaoxing Xi; Joyce Xi; Qi Li v. Fbi Special Agent 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

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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

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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.

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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.

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“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 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
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).

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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.

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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

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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

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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.

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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.

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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).

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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

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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).

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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

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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

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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–

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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).

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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”).

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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

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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

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21
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

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22
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.

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23
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,

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24
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).

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25
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

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26
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.”).

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27
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).

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28
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

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29
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.

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30
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

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31
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

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District Court, and that may provide alternative bases for
dismissal.
32

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1
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

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2
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

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3
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

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4
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

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5
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.

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