Monica Castro v. USA

Filing 511129606

Monica Castro v. USA

Doc. 511129606

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Date Filed: 06/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 07-40416 June 2, 2010 Lyle W. Cayce Clerk

M O N IC A CASTRO, For Herself and as Next Friend of R.M.G., P l a i n t if f- A p p e l la n t , v ersu s U N I T E D STATES OF AMERICA, D e fe n d a n t-A p p e lle e .

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER, G A R Z A , DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, O W E N , ELROD, SOUTHWICK, and HAYNES, Circuit Judges. P E R CURIAM: I. M o n ic a Castro, for herself and as next friend of R.M.G., her minor child (jo in t ly "Castro"), sued the United States under the Federal Tort Claims Act (" F T C A " ), 28 U.S.C. § 2671 et seq., alleging, inter alia, that the government's

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No. 07-40416 n e g lig e n c e caused the wrongful deportation of R.M.G., a U.S. citizen. The gove r n m e n t moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) o r , alternatively, for summary judgment pursuant to Federal Rule of Civil Proc e d u r e 56. The district court held that the government is protected from suit by 2 8 U.S.C. § 2680(a), the discretionary function exception of the FTCA. In a comp r e h e n s iv e and well-reasoned opinion, the court entered a final judgment dism issin g Castro's tort claims for lack of subject matter jurisdiction and dismissing h e r constitutional and injunctive claims as moot. Castro v. United States, 2007 U .S . Dist. LEXIS 9440 (S.D. Tex. Feb. 9, 2007) (Jack, J.). A divided panel of this court reversed and remanded. Castro v. United S ta t e s , 560 F.3d 381 (5th Cir. 2009). The court granted rehearing en banc, thus v a c a tin g the panel opinion. Castro v. United States, 581 F.3d 275 (5th Cir. 2 0 0 9 ) . Concluding that the discretionary function exception applies, we affirm t h e judgment of the district court.

II. T h e pertinent facts are not in dispute and are cogently set forth in the dist r ic t court's and panel's opinions. Although, like the district court, we "[do] not c o n d o n e the Border Patrol's actions or the choices it made," Castro, 2007 U.S. D is t. LEXIS 9440, at *27, the district court was correct in concluding that, bec a u s e plaintiff's tort claims are barred by the discretionary function exception t o the FTCA, the court was without subject matter jurisdiction, and the governm e n t's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) should b e granted. C o r r e c t ly noting that the burden on a rule 12(b)(1) motion is on the party a ss e rtin g jurisdictionSShere, CastroSSthe court, in a comprehensive and convincin g order, carefully explained that the two prongs of United States v. Gaubert, 4 9 9 U.S. 315, 322-23 (1991), are satisfied: 2

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No. 07-40416 . . . [T]he Border Patrol Agents' decision to let R.M.G. accompany h e r father back to Mexico was the product of a judgment or choice, a n d the Border Patrol Agents' conduct in the situation was not mand a t e d by any statute, regulation or policy . . . . [T]he Border Patrol A g e n ts ' decision was unequivocally subject to policy analysis, as it in v o lv e d the use of government resources and necessarily involved a decision as to what the Border Patrol should do with a United S t a t e s citizen child in the unique circumstances presented by such a case. Castro, 2007 U.S. Dist. LEXIS 9440, at *22-*23, *33. We affirm, essentially for the reasons given by the district court, the dism is s a l of the FTCA claims for want of jurisdiction. We also agree with the distr ic t court's explanation that the constitutional claims are moot, as is the claim for injunctive relief. A F F IR M E D .

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H A R O L D R. DeMOSS, JR., Circuit Judge, dissenting: I concur in Judge Stewart's astute dissent. If the Border Patrol agents e x c e e d e d the scope of their authority, the discretionary function exception would n o t apply and Monica Castro's tort claims would not be barred by sovereign im m u n ity . But, even if the Border Patrol agents acted within the scope of their a u t h o r it y and the discretionary function exception applied, Castro's claims for fa ls e imprisonment, abuse of process, and assault would not be barred by s o v e r e ig n immunity. The law enforcement proviso waives sovereign immunity fo r those claims. "Generally, sovereign immunity bars suits against the Government." A s h f o rd v. United States, 511 F.3d 501, 504 (5th Cir. 2007). The Federal Tort C la im s Act waives "the Government's sovereign immunity for torts committed b y its employees in circumstances where, if the Government were a private p e r s o n , the Government would be liable under state law." Martin v. Halliburton, 6 0 1 F.3d 381, 390-91 (5th Cir. 2010) (citations omitted); see 28 U.S.C. §

1 3 4 6 ( b ) (1 ) . This general waiver of sovereign immunity is circumscribed by a list o f exceptions in 28 U.S.C. § 2680. Ashford, 511 F.3d at 504. Pertinent to this a p p e a l are the discretionary function and intentional tort exceptions. Under § 2680 sovereign immunity is not waived when the claim is "based u p o n the exercise or performance or the failure to exercise or perform a d is c r e t io n a ry function or duty" (the discretionary function exception) or when the c la im arises "out of assault, battery, false imprisonment, false arrest, malicious p r o s e c u t io n , abuse of process, libel, slander, misrepresentation, deceit, or in te r fe r e n c e with contract rights" (the intentional tort exception). 28 U.S.C. § 2 6 8 0 (a) & (h). The law enforcement proviso in § 2680(h), however, provides an e x c e p tio n to these exceptions. See Nguyen v. United States, 556 F.3d 1244, 12555 6 (11th Cir. 2009); Sutton v. United States, 819 F.2d 1289, 1297 (5th Cir. 1987); s e e also § 2680(h). The proviso waives sovereign immunity "with regard to acts 4

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o r omissions of investigative or law enforcement officers" for "any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or m a lic io u s prosecution." § 2680(h). If the law enforcement proviso applies, sovereign immunity is waived and the discretionary function and intentional tort e x c e p tio n s will not bar a plaintiff's claims for relief. Nguyen, 556 F.3d at 12565 7 (effecting "the plain meaning and clear purpose of the statutory language by c o n c lu d in g that sovereign immunity does not bar a claim that falls within the p r o v is o to subsection(h), regardless of whether the acts giving rise to it involve a discretionary function"); see Sutton, 819 F.2d at 1297 (concluding that "the d is cr e tio n a r y function exception cannot be an absolute bar which one must clear to proceed under [the] § 2680(h)" law enforcement proviso). M o n ic a Castro alleged the following torts against the United States: n e g lig e n c e , intentional infliction of emotional distress, false imprisonment, a b u s e of process, and assault. The district court correctly found that the law e n fo r c e m e n t proviso applies to Castro's claims for false imprisonment, abuse of p r o c e s s , and assault. Neither party contests that finding. Because the law e n fo r c e m e n t proviso applies, sovereign immunity is waived. The court has s u b je c t matter jurisdiction over these claims and the district court's holding to th e contrary is in error. For these reasons and for the reasons stated by Judge Stewart, I dissent.

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C A R L E. STEWART, Circuit Judge, joined by HAROLD R. DeMOSS, JR., C ir c u it Judge, dissenting: W it h undisputed knowledge of the United States citizenship of baby girl R .M .G ., Border Patrol agents in Lubbock, Texas, took R.M.G. into custody with h e r undocumented father, Omar Gallardo, when he was detained for removal. M o n ic a Castro, R.M.G.'s United States citizen mother, pleaded with the Border P a t r o l to turn over her daughter and allow her to remain in the United States. C a s t ro also frantically sought to secure a temporary custody order in a matter o f hours. But on the very same day that R.M.G. and Gallardo were detained, and a lt h o u g h Gallardo did not have a custody order in his favor, the Border Patrol d e p o r te d R.M.G. and Gallardo to Mexico. Castro could not locate her daughter fo r the next three years. The majority acknowledges the novel facts of this case, but minimizes their im p o r t a n ce to the legal inquiry. The majority further erroneously applies the p r in c ip l e s of Rule 12(b) according to Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2 0 0 7 ) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and disregards the Supreme C o u r t 's instruction to "narrowly construe[ ] exceptions to waivers of sovereign im m u n it y . . . in the context of the sweeping language of the [FTCA]." Dolan v. U .S . Postal Serv., 546 U.S. 481, 492 (2006) (internal citations and quotation m a r k s omitted). I therefore respectfully dissent. I. O n behalf of herself and R.M.G., Castro brought state law claims of n e g lig e n c e , intentional infliction of emotional distress, and false imprisonment a g a in s t the United States under the Federal Tort Claims Act ("FTCA"). Castro p la u s i b ly alleged that the Border Patrol exceeded the scope of its authority u n d e r the Immigration and Nationality Act of 1953 ("INA"), 8 U.S.C. § 1101 et s e q ., and the Fourth and Fifth Amendments. The discretionary function e x ce p tio n to the FTCA does not shelter against liability for unauthorized actions 6

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b y government agents, yet the majority nonetheless applies the discretionary f u n c t io n exception without any inquiry into whether the Border Patrol agents a ct e d in excess of their authority. In my view, the order granting the G o v e r n m e n t 's Rule 12(b)(1) motion to dismiss based on the discretionary fu n c tio n exception should be vacated and the case remanded for an evaluation o f whether the Border Patrol acted outside of its authority. II . The FTCA provides consent for suit against the United States "for injury . . . caused by the negligent or wrongful act or omission of any employee of the G o v e r n m e n t while acting within the scope of his office or employment, under c ir c u m s t a n c e s where the United States, if a private person, would be liable to t h e claimant in accordance with the law of the place where the act or omission o c c u r r e d ." 28 U.S.C. § 1346(b)(1). One exception to the FTCA's consent-tob e - s u e d is the discretionary function exception, 28 U.S.C. § 2680(a), the purpose o f which is "to prevent judicial `second-guessing' of legislative and administrative d e c i s io n s grounded in social, economic, and public policy. . . ." United States v. G a u b e r t, 499 U.S. 315, 323 (1991). The discretionary function exception applies w h e n : (1) the challenged government action involves "an element of judgment o r choice" by a government agent and (2) the complained-of choice is "the kind t h a t the discretionary function exception was designed to shield." Id. at 322-23 (c it in g Berkovitz v. United States, 486 U.S. 531, 536 (1988)). The discretionary function exception does not protect the unauthorized a c ts of government agents. See Berkovitz, 486 U.S. at 539 ("The discretionary fu n c tio n exception applies only to conduct that involves the permissible exercise o f policy judgment.") (emphasis added); Truman v. United States, 26 F.3d 592, 5 9 4 (5th Cir. 1994) ("Through the enactment of the FTCA, the government has g e n e r a lly waived its sovereign immunity from tort liability for the negligent or w r o n g fu l acts or omissions of its agents who act within the scope of their 7

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e m p l o y m e n t ." ). "[C]ourts have read the Supreme Court's discretionary function c a s e s as denying protection to actions that are unauthorized because they are u n c o n s t it u t io n a l, proscribed by statute, or exceed the scope of an official's a u t h o r i t y ." Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 254 (1 s t Cir. 2003) (internal citations omitted). This safeguard inherent in the d is c r e tio n a r y function exception has been recognized by seven other circuits,1 in a d d itio n to this circuit. See Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir. 1 9 8 7 ) (concluding that action by a government agent "does not fall within the d i s c re t io n a r y function exception of § 2680(a) when governmental agents exceed th e scope of their authority as designated by statute or the Constitution."). D e s p it e the overwhelming weight of authority and our own precedent, the m a jo r it y entirely ignores the principle that the discretionary function exception d o e s not encompass unauthorized actions. If the Border Patrol agents acted outside their scope of authority by v io la tin g R.M.G.'s constitutional rights, then those constitutional transgressions fo r e c lo s e the protection of the discretionary function exception. A Border Patrol

See 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.") (internal citations omitted); 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 [plaintiff] 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) (noting that the starting point of the discretionary function exception analysis is that "federal officials do not possess discretion to violate constitutional rights or federal statutes") (quoting U.S. Fid. & Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988)); Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000) ("governmental conduct cannot be discretionary if it violates a legal mandate"); Prisco v. Talty, 993 F.2d 21, 26 n.14 (3d Cir. 1993) (concluding that the discretionary function exception was inapplicable to an FTCA claim based on conduct that violated plaintiff's constitutional rights); Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1196 (D.C. Cir. 1986) ("An employee of the government acting beyond his authority is not exercising the sort of discretion the discretionary function exception was enacted to protect."); Birnbaum v. United States, 588 F.2d 319, 329 (2d Cir. 1978) ("An act that is clearly outside the authority delegated cannot be considered as an abuse of discretion.") (internal quotation marks and citations omitted).

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a g e n t's authority is also limited by statutory mandates, therefore any actions o f the Border Patrol agents in contravention of specific provisions of the INA or o t h e r statutes preclude the application of the discretionary function exception. S e e Gaubert, 499 U.S. at 324 ("If the employee violates the mandatory r e g u l a tio n , there will be no shelter from liability because there is no room for c h o ic e and the action will be contrary to policy."). The majority errs by c o n c lu d i n g that the discretionary function exception deprived the district court o f jurisdiction and dismissing Castro's claims without an evaluation of whether t h e actions of the Border Patrol agents exceeded the scope of their authority. II I. A. "Whether the district court lacked jurisdiction to consider the

g o v e r n m e n t 's conduct in this case is a question of law, subject to de novo review b y this Court." Buchanan v. United States, 915 F.2d 969, 970 (5th Cir. 1990) (in te r n a l citations omitted); see also Limone, 579 F.3d at 101 ("We afford de novo r e v ie w to a district court's determination that the discretionary function e x ce p tio n does or does not apply."). To survive a motion to dismiss, a complaint n e e d only contain sufficient factual matter to "state a claim for relief that is p la u s i b le on its face." Cornerstone Christian Schs. v. Univ. Interscholastic L e a g u e , 563 F.3d 127, 133 (5th Cir. 2009) (citing Twombly, 550 U.S. at 544 ); see a l so Iqbal, 129 S. Ct. at 1950 (reiterating the Twombly holding that "a complaint t h a t states a plausible claim for relief survives a motion to dismiss."). All factual a lle g a tio n s contained in the complaint must be accepted as true. Iqbal, 129 S. Ct. a t 1949. B. T h e majority acknowledges that we have before us a Rule 12(b)(1) d i s m i s s a l , but it erroneously concludes that Castro has not met her burden u n d e r Twombly and Iqbal. To the contrary, based on the allegations contained 9

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in Castro's complaint, the Border Patrol agents' actions in detaining and d ep orting R.M.G. implicate both statutory and constitutional concerns. The facts in c lu d e d in the complaint--in particular the undisputed fact that the Border P a t ro l agents knew R.M.G's citizenship status and did not doubt that she was a United States citizen--support a plausible claim that the Border Patrol agents e x c e e d e d the scope of their statutory and constitutional authority and their a c t io n s were therefore non-discretionary. C a s t r o 's complaint alleged a plausible violation of specific constitutional m a n d a t e s : the Fourth Amendment right to be free from unreasonable seizure a n d the Fifth Amendment right to due process. See United States v. BrignoniP o n c e , 422 U.S. 873, 884 (1975) (explaining that the Fourth Amendment "forbids s to p p in g or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens"); Hernandez v. Cremer, 913 F.2d 2 3 0 , 237 (5th Cir. 1990) (observing that "the right of a United States citizen to e n t e r the country is a right which the fundamental law has conferred upon him" a n d "is a part of the `liberty' of which the citizen cannot be deprived without due p r o c e s s of law under the Fifth Amendment.") (internal citations and quotation m a r k s omitted). In her complaint, Castro alleged the following: Defendant United States' detention of Plaintiff R.M.G. w it h o u t due process violated her Fourth Amendment constitutional in t e r e s t in remaining free from bodily seizure. . . . Detention of P la in t iff R.M.G. was not due to an act of wrongdoing that warranted d e t e n t io n nor was detention based on an emergency. The United S t a te s did not and cannot show that seizure of the minor child was n e c e s sa r y to protect Plaintiff R.M.G.'s health, safety and welfare; in d e ed , Defendant United States placed R.M.G. in imminent danger b y deporting her with a man it knew was wanted in connection with a homicide. 10

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. . . Plaintiff Castro made a claim of citizenship to Defendant U n it e d States on behalf of her minor child, Plaintiff R.M.G. Despite t h a t claim, and despite Defendant's recognition of Plaintiff R.M.G.'s s ta t u s as a U.S. citizen, Defendant United States intentionally, m a lic io u s ly , and recklessly violated Plaintiffs' right to procedural d u e process guaranteed by the Fifth Amendment. . . . Defendant United States willfully detained R.M.G. w it h o u t her consent or the consent of her U.S. citizen parent, and t h e detention was without legal authority or justification. . . . From t h e moment Defendant United States knew or should have known t h a t R.M.G. was a U.S. citizen and that a U.S. citizen parent was p r e s e n t to take possession of her and did not release her, Defendant U n it e d States had no legal authority or justification to continue its d e te n tio n of the child. Castro's complaint additionally alleged that the Border Patrol agents acted o u tsid e of their statutory grant of authority under the INA, averring that "[n]o s e c t io n of [the INA] provides authority for the United States to detain or remove a U.S. citizen." The Border Patrol is an agency of the Department of Homeland S e c u r ity , and subject to the INA. See 8 C.F.R. § 1.1. The INA's scope is limited t o regulating the entry of aliens, as well as their detention, removal, and n a tu r a liz a tio n . See, e.g., 8 U.S.C. §§ 1101(a)(23), 1103(a)(1), 1231(a). Within this s t a tu to r y grant of authority, Border Patrol agents have discretion in making d e te r m i n a tio n s in matters such as the detention or removal of aliens illegally p r e s e n t in the United States. See, e.g., 8 U.S.C. § 1226; 8 C.F.R. §§ 236.1-236.7; I N S v. Yueh-Shaio Yang, 519 U.S. 26, 30, 117 (1996) (explaining the broad INS d i s c re t io n "in determining who, among a class of eligible aliens, may be granted r e l ie f " from removal). No statute grants Border Patrol agents the power to 11

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d e p o r t United States citizens, however, and the power of Border Patrol agents to detain United States citizens is quite limited. See 8 U.S.C. § 1357(a)(5). Nor d o Border Patrol agents have statutory authority to make child custody d e c i s io n s . Johns v. Dep't of Justice, 653 F.2d 884, 894 n.26 (5th Cir. 1981) ("F e d e r a l immigration authorities lack authority to determine custody of a child o r to enforce the custodial rights of others."). D e sp ite the Border Patrol agents' conceded knowledge of R.M.G.'s c it iz e n s h ip and Castro's plausible allegations of constitutional and statutory v i o l a t io n s , the district court opinion--relied upon by the majority--failed to a d d r e s s whether the Border Patrol agents exceeded their scope of authority. This c r u c ia l omission in the district court's Rule 12(b)(1) analysis allows any actions t a k e n by the Border Patrol agents in excess of their authority to nonetheless b e n e f it from the protection of the discretionary function exception. The majority o p i n io n therefore effectively bestows immunity from FTCA liability upon even th e most egregious constitutional and statutory violations by government agents, w h ic h may reach far beyond their actual authority. This outcome contravenes t h e fundamental purpose of the FTCA; such an "unduly generous interpretation [ ] of the exception[ ] run[s] the risk of defeating the central purpose of the s t a tu te , which waives the Government's immunity from suit in sweeping la n g u a g e ." Dolan, 546 U.S. at 492 (internal citations and quotation marks o m itted ). IV . The majority opinion weakens a critical, inherent safeguard of the d is c r e tio n a r y function exception and neglects Castro's patently plausible a lle g a t io n s of unauthorized actions by the Border Patrol agents in addressing t h e 12(b)(1) dismissal. I therefore respectfully dissent from the holding of the c o u r t . I would vacate the order of the district court and remand for a ruling on w h e th e r the Border Patrol agents acted within the scope of their authority. 12

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D E N N IS , Circuit Judge, concurring in the judgment in part and dissenting in p art. I agree with the dissents of Judges DeMoss and Stewart concerning the s c o p e of the federal government's waiver of sovereign immunity under the F e d e r a l Tort Claims Act, the law enforcement proviso, and the discretionary fu n c tio n exception. However, I partially disagree with them regarding the legal s ig n ific a n c e of the underlying facts in this case. Therefore, I concur in the result a s to the majority's affirmance of the dismissal of most of the plaintiffs' claims, b u t I dissent as to the claims for abuse of process and assault, which should be r e m a n d e d to the district court for further proceedings. F ir s t , I agree with Judge DeMoss's dissent that the federal courts have s u b je c t matter jurisdiction over the plaintiffs' claims for abuse of process, a s s a u lt , and false imprisonment, because the federal government has waived its s o v e r e ig n immunity as to those claims through the FTCA's law enforcement p ro v iso , 28 U.S.C. § 2680(h).1 See Nguyen v. United States, 556 F.3d 1244, 12555 6 (11th Cir. 2009). The district court therefore erred by dismissing these claims u n d e r Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. I t is not clear to me whether the plaintiffs' claims for abuse of process and a s s a u lt can survive a Rule 12(b)(6) motion to dismiss. The district court did not d e c id e whether these claims are viable because it erroneously dismissed the c la im s for lack of subject matter jurisdiction under Rule 12(b)(1). I would

r e m a n d those claims to be resolved in the first instance by the district court. H o w e v e r , with respect to false imprisonment, the plaintiffs have clearly fa ile d to state a claim on which relief can be granted. The elements of false

"[W]ith regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of [the FTCA] shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." 28 U.S.C. § 2680(h).

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im p r is o n m e n t under Texas law are "(1) willful detention; (2) without consent; a n d (3) without authority of law." Bossin v. Towber, 894 S.W.2d 25, 29 (Tex. A p p . 1994) (citing Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1 9 8 5 )). When Omar Gallardo, the father, was arrested, R.M.G., the baby girl, w a s with him. Gallardo wanted to keep his daughter with him while he was b e in g detained (for less than a day) and deported, and the Border Patrol a cq u ie s c e d . R.M.G. was a baby and therefore lacked the ability to consent in d e p e n d e n t ly , but her father could and did consent on her behalf to her r e m a in in g with him. Because R.M.G.'s presence in the Border Patrol station w a s not without consent, it did not amount to false imprisonment. The false im p r is o n m e n t claim should therefore be dismissed for failure to state a claim on w h ich relief can be granted, under Rule 12(b)(6). A s to the plaintiffs' remaining claims, which do not fall within the law e n fo r c e m e n t proviso, I agree with the legal framework set forth in Part II of J u d g e Stewart's dissent. As Judge Stewart explains, the discretionary function e x ce p tio n to the FTCA, 28 U.S.C. § 2680(a),2 does not encompass actions by g o v e r n m e n t agents that are "unconstitutional, proscribed by statute, or exceed t h e scope of an official's authority." Thames Shipyard & Repair Co. v. United S ta t e s , 350 F.3d 247, 254 (1st Cir. 2003); see also Sutton v. United States, 819 F .2 d 1289, 1293 (5th Cir. 1987) ("[W]e have not hesitated to conclude that [an] a c t io n does not fall within the discretionary function [exception] of § 2680(a) w h e n governmental agents exceed the scope of their authority as designated by s t a tu te or the Constitution."). I therefore agree with Judge Stewart that the d i s tr ic t court erred in its reasoning by failing to consider whether the Border

Section 2680(a) excludes from the FTCA "[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Such claims are excluded from the FTCA's waiver of sovereign immunity, and the federal courts therefore lack subject matter jurisdiction over them.

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P a t r o l agents' actions violated any statutory or constitutional requirements b e f o r e it decided that the plaintiffs' claims were barred by the discretionary fu n c t io n exception. N e v e r t h e le s s , I believe that the plaintiffs' claims -- except for those c o v e r e d by the law enforcement proviso, as discussed above -- must be dismissed fo r lack of subject matter jurisdiction because they are barred by the FTCA's d i s c re t i o n a r y function exception. The facts as alleged by the plaintiffs do not d is c lo s e any constitutional or statutory violations that would make the d i s c re t io n a r y function exception inapplicable. Again, Gallardo had his daughter, R .M .G ., with him when he was arrested. By permitting Gallardo to keep R.M.G. w it h him, the Border Patrol agents did not improperly make a custody d e t e r m in a t io n ; rather, they left the status quo in place and refrained from m a k in g a custody determination, in that they declined to take R.M.G. away from G a lla r d o against his will. The Border Patrol agents cannot be meaningfully said t o have "detained" or "deported" R.M.G., because it was Gallardo, and not the B o r d e r Patrol, who decided that the baby should go with him to Mexico. Monica C a s t r o , R.M.G.'s mother, disagreed with Gallardo's decision and wanted the B o r d e r Patrol to transfer the baby to her, but she lacked a court order or any o t h e r source of legal authority requiring the Border Patrol to take such action. T h e Border Patrol, by accepting Gallardo's decision to keep R.M.G. with him, did n o t violate any constitutional or statutory requirement that the plaintiffs have id e n tifie d . B e c a u s e there was no constitutional or statutory violation, the Border P a tr o l's alleged actions fall within the FTCA's discretionary function exception, a n d the federal courts therefore lack jurisdiction over the plaintiffs' claims, e x c e p t for those that are covered by the law enforcement proviso as discussed a b o v e . Accordingly, I concur in the judgment except as to the claims for abuse o f process and assault. I would remand those two claims to the district court to 15

Case: 07-40416

Document: 00511129606 07-40416

Page: 16

Date Filed: 06/02/2010

a llo w it to decide in the first instance whether they should be dismissed under R u le 12(b)(6).

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