UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-2798 _____________

XIAOXING XI; JOYCE XI; QI LI, Appellants

v.

FBI SPECIAL AGENT ANDREW HAUGEN; JOHN DOES; UNITED STATES OF AMERICA; DIRECTOR OF FEDERAL BUREAU OF INVESTIGATION; ATTORNEY GENERAL UNITED STATES OF AMERICA; DIRECTOR NATIONAL SECURITY AGENCY AND CHIEF OF THE CENTRAL SECURITY SERVICE _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cv-02132) District Judge: Hon. R. Barclay Surrick _______________

Argued September 14, 2022 Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges.

(Filed May 24, 2023) David Rudovsky [ARGUED] Jonathan H. Feinberg Susan M. Lin Kairys, Rudovsky, Messing, Feinberg & Lin LLP 718 Arch Street Suite 501 South Philadelphia, PA 19106 Patrick Toomey Ashley Gorski Sarah Taitz American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 Jonathan Hafetz Seton Hall Law School One Newark Center Newark, NJ 07102 Counsel for Appellants Beth S. Brinkmann Covington & Burling 850 10th Street NW One City Center Washington, DC 20001 Lawrence S. Lustberg

2 Gibbons One Gateway Center Newark, NJ 07102 Robert McNamara Institute for Justice 901 N Glebe Road Suite 900 Arlington, VA 22203 Adam Shelton Goldwater Institute 500 East Coronado Road Phoenix, AZ 85004 Counsel for Amicus Appellants Leif Overvold [ARGUED] Brian M. Boynton H. Thomas Byron III Sharon Swingle Attorneys, Appellate Staff Civil Division, Room 7226 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Counsel for Appellees _______________

OPINION OF THE COURT _______________ KRAUSE, Circuit Judge.

3 Not all rights have remedies, even when they are enshrined in the U.S. Constitution. So where Congress has opted to remedy specific rights in specific circumstances, we hesitate to interfere with that judgment by implying our own remedies or restricting those provided by Congress in ways it never intended. Here, we consider whether Appellant Xiaoxing Xi has a remedy available for two types of claims, both of which arise from the government’s investigation, arrest, and later-dismissed indictment alleging—mistakenly— that he was a “technological spy” for China. Xi, joined by his co-Appellants, his wife, Qi Li, and daughter, Joyce Xi, filed a complaint that raised two types of claims: (1) federal constitutional claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), directed at FBI Special Agent Andrew Haugen, the lead agent, and other unnamed officials involved in the investigation, 1 and (2) malicious prosecution and other torts under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671–2680, asserted against the United States. The District Court dismissed both categories of claims on the Government’s motion, and we agree, but only in part.

In view of evolving Supreme Court precedent declining to extend Bivens into the national security realm and the limited circumstances in which Congress has opted to provide a remedy, we will affirm the District Court’s dismissal of Xi’s Bivens claims. But his FTCA claims are another matter. The District Court held the Government immune from those claims because it determined that Xi and his family had failed to allege

1 For ease of reference, this opinion refers to the claims against Haugen and the unnamed officials, collectively, as claims against Haugen.

4 “clearly es