CIVIL RIGHTS-BIVENS-FBI MISCONDUCT

Xiaoxing Xi v. Haugen, 2023 U.S. App. LEXIS 12784 (3d Cir. May 24, 2023) (Krause, C.J.). 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, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), directed at FBI Special Agent Andrew Haugen, the lead agent, and other unnamed officials involved in the investigation, 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 “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. 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. 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. 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. 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, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (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, 837 F.2d 116, 120 (3d Cir. 1988) (citation omitted). And that is where we take issue with the District Court’s reasoning. 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. 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 constitutional violation. The discretionary function exception provides no bar to the pursuit of his FTCA claims premised on the conduct. 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.