              REVISED FEBRUARY 27, 2009
       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                             February 20, 2009

                                No. 07-40416               Charles R. Fulbruge III
                                                                   Clerk

MONICA CASTRO, For Herself and as Next Friend of R.M.G., a Minor Child

                                          Plaintiffs-Appellants
v.

UNITED STATES OF AMERICA

                                          Defendant-Appellee



                Appeal from the United States District Court
                     for the Southern District of Texas


Before SMITH, DeMOSS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
      Plaintiffs-Appellants Monica Castro for herself and as next friend of
R.M.G., a minor child (collectively “Castro”), brought suit against the United
States of America (“the Government”) under the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 2671 et seq.        Castro alleged, inter alia, that the
Government’s negligence caused the wrongful deportation of R.M.G., a U.S.
citizen. The Government filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1) or, alternatively, for summary judgment pursuant to
Rule 56. The district court held that the Government is protected from suit due
to 28 U.S.C. § 2680(a), the discretionary function exception of the FTCA.
                                     No. 07-40416

Subsequently, the district court entered a final judgment dismissing Castro’s
tort claims for lack of subject matter jurisdiction and dismissing her
constitutional claims as moot. Castro timely appealed.
                FACTUAL AND PROCEDURAL BACKGROUND
      The pertinent facts in this case are not in dispute. Castro, a United States
citizen, moved with her parents from Corpus Christi, Texas to Lubbock, Texas
when she was approximately fifteen years old. Around that time, Castro met
Omar Gallardo, an illegal alien and Mexican national. When Castro was
sixteen, she and Gallardo moved together into a trailer near the trailer that
Castro’s parents rented. On December 4, 2002, Castro gave birth to her and
Gallardo’s daughter, R.M.G. R.M.G., who was born at the University Medical
Center in Lubbock, is a citizen of the United States. Castro was seventeen at the
time of R.M.G.’s birth.
      Castro and Gallardo had a history of arguing with each other, and Castro
contends that Gallardo abused her during the course of their relationship,
although she informed neither her parents nor law enforcement authorities of
this abuse. Castro maintained that Gallardo was a good father to R.M.G., and
that he never abused their daughter.
      On November 28, 2003, Castro and Gallardo got into an argument, and as
a result, Castro called and asked her grandparents to come and pick her up.
They came the following day, and Castro left the trailer; R.M.G. remained with
Gallardo. Immediately thereafter, Castro commenced efforts to recover R.M.G.
from Gallardo.      Specifically, she contacted the Lubbock County Sheriff’s
Department, Texas Child Protective Services (“CPS”), and the Lubbock Police
Department. The agencies told her that since she was married to Gallardo
pursuant to a common-law marriage,1 and because Gallardo was the child’s


      1
        There is a dispute about whether Castro and Gallardo had a legally-established
common-law marriage at the time of R.M.G.’s birth. Before the district court, Castro argues

                                            2
                                      No. 07-40416

father, Gallardo had as much right to R.M.G. as she did. Further, Castro was
told that her issues with Gallardo constituted a civil dispute, and that she would
have to hire a private attorney to seek a custody order. CPS did tell Castro that
she could fill out an application to start the process for obtaining assistance from
CPS, but that the process would take one to two days. Castro did not fill out the
application because she said she did not want to wait one to two days.
       On December 1, 2003, Castro, along with her aunt, Sophia Rodriguez,
went to the Lubbock Border Patrol station to report that Gallardo was an illegal
alien. They spoke with Border Patrol Agent Manuel Sanchez, and they told
Sanchez that while Gallardo currently had R.M.G., Castro wanted to recover
R.M.G. from him.2 Agent Sanchez informed Castro that she needed to get a
court order for temporary custody of R.M.G. However, Agent Sanchez said that
if Castro was present when Border Patrol apprehended Gallardo and certain of
his relatives, who were also illegal aliens, Border Patrol would leave R.M.G. with
Castro, since they both were U.S. citizens. However, Castro did not wish to be
present when Border Patrol went to the trailer because she was afraid of what
Gallardo and his family would do to her. Accordingly, on the morning of
December 3, 2003, Castro was not present when Border Patrol Agents arrived
at the trailer Castro shared with Gallardo; rather, Castro watched the events
unfold from her relatives’ trailer across the street.
       Border Patrol took Gallardo, three of his brothers, and his cousin to the
Lubbock Border Patrol station. Since Gallardo had R.M.G. with him, R.M.G.




that she could not have agreed to a common-law marriage until her eighteenth birthday, which
was April 30, 2003. This issue was not resolved by the district court. However, there is no
dispute that Gallardo is R.M.G.’s biological father; accordingly, we need not resolve whether
there was a common-law marriage.
       2
          Agent Sanchez informed Castro that Amarillo law enforcement authorities wanted
to question Gallardo as a possible witness in connection with a homicide.

                                             3
                                       No. 07-40416

was also taken to the station. Gallardo, R.M.G., and Gallardo’s relatives were
all placed in a holding cell at the station.
       Shortly thereafter, Castro arrived at the station and requested that her
daughter be returned to her. However, Gallardo informed the Border Patrol
Agents that Castro had walked out on him and R.M.G. and that he wanted
R.M.G. to remain with him. At the direction of Greg Kurupas, who was the
agent-in-charge, Agent Sanchez contacted Debbie Perkins-McCall of the Texas
Department of Family and Protective Services (“DFPS”) in Lubbock. Since there
was no evidence that R.M.G. was abused or neglected, Agent Sanchez was
informed that DFPS would not get involved.3                  Meanwhile, Border Patrol
processed Gallardo and his relatives and prepared to repatriate them back to
Mexico. While in custody, Gallardo admitted he was in the United States
illegally and chose to reinstate an earlier deportation order. The transport to
Mexico from Lubbock left at 3:15 p.m. daily, and Border Patrol made plans to
send Gallardo and his relatives at that time.
       Around 1:30 in the afternoon, Castro and her relatives retained an
attorney, Lisa Trevino, in order to obtain a temporary custody order. Trevino
drafted the necessary paperwork and proceeded to the courthouse to get a
judge’s signature on the order. Trevino told Agent Kurupas that she was
working on obtaining a judge’s signature on a temporary custody order; however,
the agent told her that the repatriation transport had to leave by 3:15 p.m. By
the time the transport left, Trevino had been unable to obtain a judge’s


       3
           Perkins-McCall testified before the district court: “In December of 2003, I received
a telephone call from a male Border Patrol Agent and he advised me that he had a Mexican
citizen father with possession of his child and that the father was to be returned to Mexico.
He further advised me that the mother sought possession of the child, but that the father did
not want to relinquish possession of the child. The agent asked me if this was a situation in
which our department would get involved. I asked the agent if there was any issue of abuse
of the child or harm to the child and he advised me there was not. I told him that absent any
issue of abuse of the child or harm to the child, the Texas Department of Family and Protective
Services would not get involved.”

                                              4
                                 No. 07-40416

signature. Trevino never filed any documents with the state court regarding the
custody of R.M.G., and she did not further pursue a custody order for Castro.
      The transport left Lubbock around 3:15 p.m. on December 3, 2003 with
Gallardo onboard, along with R.M.G. In September 2006, Gallardo was detained
in the Amarillo area on charges of illegal reentry. While he was in custody,
Gallardo and Castro came to an agreement whereby R.M.G., who was living in
Mexico with Gallardo’s parents, would be returned to the custody of Castro.
R.M.G. was returned to Castro’s custody on December 1, 2006.
      Castro filed a lawsuit on February 10, 2006, in the United States District
Court for the Southern District of Texas on her own behalf and as next friend of
her daughter, R.M.G. In her original complaint, Castro sought monetary
damages and injunctive relief pursuant to the Fourth, Fifth, and Tenth
Amendments of the United States Constitution, as well as claims of negligence,
intentional infliction of emotional distress, and false imprisonment against the
United States pursuant to the FTCA. The district court dismissed Castro’s
constitutional claims for monetary relief, holding that such claims were barred
by the doctrine of sovereign immunity. Castro then filed her First Amended
Complaint on May 19, 2006. In this complaint, Castro asserted claims for
injunctive relief under the Fourth and Fifth Amendments of the United States
Constitution as well as claims of negligence, intentional infliction of emotional
distress, false imprisonment, abuse of process, and assault pursuant to the
FTCA.    Castro also asserted a claim for injunctive and declaratory relief
pursuant to 8 U.S.C. § 1101, et. seq.
      On November 14, 2006, the Government filed a motion to dismiss
pursuant to Rule 12(b)(1), and in the alternative, motion for summary judgment
pursuant to Rule 56. The Government argued, inter alia, that the district court
did not have subject matter jurisdiction over Castro’s tort claims because they
are barred by the discretionary function exception to the FTCA. On February

                                        5
                                  No. 07-40416

9, 2007, the district court granted the Government’s motion to dismiss for lack
of subject matter jurisdiction; the court also held that Castro’s claims for relief
under the Fourth and Fifth Amendments and her claim for injunctive relief
pursuant to 8 U.S.C. § 1101, et. seq. were moot and therefore dismissed them as
well. On April 4, 2007, the district court dismissed Castro’s only remaining
claim which sought declaratory relief “in the form of determination of the
validity of any statute, regulation, policy or other procedure relied on to detain
and deport Plaintiff R.M.G.” for lack of standing. That same day, the district
court entered its final judgment dismissing the action in its entirety with
prejudice.
      Castro timely filed her notice of appeal. The only issue Castro raises on
appeal is whether the district court erred in dismissing her FTCA claims for lack
of subject matter jurisdiction.
                           STANDARD OF REVIEW
      “Whether the district court lacked jurisdiction to consider the
government’s conduct in this case is a question of law, subject to de novo review
by this court.” Buchanan v. United States, 915 F.2d 969, 970 (5th Cir. 1990)
(citing Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987)). The party
asserting jurisdiction bears the burden of proof for a Federal Rule of Civil
Procedure 12(b)(1) motion to dismiss. Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001).    A motion under 12(b)(1) should be granted only if it
appears certain that the plaintiff cannot prove a plausible set of facts that
establish subject-matter jurisdiction. See Lane v. Halliburton, 529 F.3d 548, 557
(5th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007)).
“[U]nder Rule 12(b)(1), the court may find a plausible set of facts supporting
subject matter jurisdiction by considering any of the following: ‘(1) the complaint
alone; (2) the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus the court’s

                                        6
                                      No. 07-40416

resolution of disputed facts.’” Lane, 529 F.3d at 557 (quoting                    Barrera-
Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996) (internal citations
omitted)).
                                      DISCUSSION
       “As the sovereign, the United States is immune from suit unless, and only
to the extent that, it has consented to be sued.” Truman v. United States, 26
F.3d 592, 594 (5th Cir. 1994) (citing Fed. Deposit Ins. Corp. v. Meyer, 510 U.S.
471 (1994)). Through the FTCA, the United States has consented to suits “for
injury or loss of property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment . . . .” 28 U.S.C. § 1346(b)(1); see also
Truman, 26 F.3d at 594 (“Through the enactment of the FTCA, the government
has generally waived its sovereign immunity from tort liability for the negligent
or wrongful acts or omissions of its agents who act within the scope of their
employment.”)
       There are a number of statutory exceptions to the FTCA, two of which are
relevant to the resolution of this appeal. First, the “intentional tort” exception
provides that the FTCA does not apply to “[a]ny claim arising out of assault,
battery, false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference with contract
rights.”   28 U.S.C. § 2680(h).        However, that same provision also waives
sovereign immunity for the intentional torts of law enforcement and
investigative officers. Id. (explaining that the FTCA shall apply “to acts or
omissions of investigative or law enforcement officers of the United States
Government . . . [for] any claim arising . . . out of assault, battery, false
imprisonment, false arrest, abuse of process, or malicious prosecution.”).4

       4
        This court has previously addressed the congressional intent of § 2680(h): “Congress,
in response to ‘no knock’ raids conducted by federal narcotic agents on the wrong dwellings,

                                             7
                                    No. 07-40416

      The other relevant exception is the “discretionary function” exception,
which provides that the United States is not liable for:
      Any claim based upon an act or omission of an employee of the
      Government, exercising due care, in the execution of a statute or
      regulation, whether or not such statute or regulation be valid, or
      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.

28 U.S.C. § 2680(a); see also Sutton v. United States, 819 F.2d 1289, 1293 (5th
Cir. 1987) (“[T]he government is not liable for any claim arising from the
exercise of discretion in the performance of governmental functions or duty
whether or not the discretion involved be abused.” (citing Dalehite v. United
States, 346 U.S. 15, 33 (1953) (internal quotation marks omitted)).               “The
exception only covers acts that are discretionary in nature, acts that ‘involve an
element of judgment or choice.’” Gaubert, 499 U.S. at 322 (citing Berkovitz v.
United States, 486 U.S. 531, 536 (1988)). In United States v. S.A. Empresa De
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984), the
Supreme Court explained that it is the nature of the conduct and not the status
of the government actor that governs whether the exception applies.
      In Gaubert, the Supreme Court laid out a two-step test for determining
whether the discretionary function exception applies to a federal employee’s act
or omission. First, the challenged government action must be “the product of
judgment or choice.” Gaubert, 499 U.S. at 322. This Court has explained:
      Under this prong, we determine whether a statute, regulation, or
      policy mandates a specific course of action. If such a mandate exists,
      the discretionary function exception does not apply and the claim
      may move forward. When no mandate exists, however, the



passed the 1974 amendment to the Federal Tort Claim Act to provide compensation [for the
victims].” Solomon v. United States, 559 F.2d 309, 310 (5th Cir. 1977).

                                           8
                                 No. 07-40416

      governmental action is considered discretionary and the first prong
      is satisfied.

Garza v. United States, 161 F. App’x 341, 343 (5th Cir. 2005) (internal citation
omitted). Second, the court must decide whether the complained of judgment or
choice “is of the kind that the discretionary function exception was designed to
shield” because the purpose of the exception “is to prevent judicial ‘second-
guessing’ of legislative and administrative decisions grounded in social,
economic, and public policy through the medium of an action in tort.” Gaubert,
499 U.S. at 322-23 (internal quotation marks and citations omitted). This Court
has written that for this prong, “the appropriate inquiry is whether the act in
question is susceptible to policy analysis.” Baldassaro v. United States, 64 F.3d
206, 211 (5th Cir. 1995) (internal citation omitted).
      As already noted, in the proceedings below, the district court granted the
Government’s motion to dismiss pursuant to Rule 12(b)(1). While the district
court stated that the aforementioned “law enforcement provision” of § 2680(h)
applied to Castro’s assault, abuse of process, and false imprisonment claims, the
court ultimately concluded that it lacked subject matter jurisdiction because her
FTCA claims could not survive the discretionary function exception. The district
judge first determined that the first prong of the Gaubert test was satisfied
because the Border Patrol Agents’ actions were the product of judgment or
choice. In reaching that determination, she highlighted that Castro failed to
obtain a custody order granting her custody of R.M.G., and because of that, she
placed the Agents in a “difficult situation”—namely, they had to either forcibly
remove R.M.G. from Gallardo’s custody even though there was no court order
directing them to do so, or let Gallardo continue with possession of R.M.G., even
though Gallardo was being repatriated to Mexico. After concluding that there
were no statutes, regulations, or policies mandating that the Agents take a



                                        9
                                      No. 07-40416

certain course of action in this situation5 and rejecting Castro’s argument that
the Agents had made an unauthorized custody determination as to R.M.G., the
district judge concluded that the Agents “were left to make a difficult decision,
one that was a product of judgment or choice . . . .” She also held that the Border
Patrol Agents’ actions satisfied the second prong of the Gaubert test because
their “decision was unequivocally subject to policy analysis, as it involved the use
of government resources and necessarily involved a decision as to what the
Border Patrol should do with a United States citizen child in the unique
circumstances presented by such a case.” See, e.g., Baum v. United States, 986
F.2d 716, 724 (4th Cir. 1993) (a decision as to the best allocation or use of
resources is “inherently bound up in considerations of economic and political
policy, and accordingly is precisely the type of governmental decision that
Congress intended to insulate from judicial second-guessing . . . .”).
       On appeal, Castro argues that the district court unduly narrowed the
coverage of the FTCA by improperly expanding the scope of the discretionary
function exception. She contends that the district court wrongly interpreted and
applied the holdings of Gaubert and related precedent, because, while the Border
Patrol Agents’ actions were the product of choice or judgment, their actions not
only exceeded the scope of their authority, but also violated the federal
Constitution. Further, according to Castro, the Agents’ actions lacked any
connection to the social or economic policy of the regulatory regime that
establishes the authority of the Border Patrol. The Government urges this court
to affirm the district court’s determination, contending that the Agents’ actions
in this case are clearly covered by the discretionary function exception of the
FTCA. It argues that the district court properly applied Gaubert, and that its

       5
           The Government submitted evidence before the district court that: “there are no
policies, rules or statutes governing the apprehension and detention of a foreign national in
lawful custody of his or her U.S. juvenile child . . . .” Castro does not disagree with that
assessment.

                                             10
                                   No. 07-40416

judgment dismissing Castro’s FTCA claims for lack of subject matter jurisdiction
should be affirmed.
      We first observe that we agree with the district court that the law
enforcement proviso applies to some of Castro’s FTCA claims since Border Patrol
Agents are federal law enforcement officers for purposes of the FTCA. See Ysasi
v. Rivkind, 856 F.2d 1520, 1524-25 (Fed. Cir. 1988) (explaining that Border
Patrol Agents are federal law enforcement officers for the purposes of the FTCA).
However, we disagree with the lower court’s conclusions regarding the
discretionary function exception. Even though an argument can be made that
the district court properly analyzed the two Gaubert factors, that court erred by
not first considering whether the Border Patrol Agents exceeded the scope of
their authority. In Sutton, we explained: “[W]e have not hesitated to conclude
that such action does not fall within the discretionary function exception of
§ 2680(a) when governmental agents exceed the scope of their authority as
designated by statute or the Constitution.” 819 F.2d at 1293. This principle of
law has been recognized by a majority of other circuits as well. See, e.g., 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 analysis is that “federal
officials do not possess discretion to violate constitutional rights or federal
statutes” (quoting United States 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)
(holding the Constitution limits the discretion of federal officials such that the
discretionary function exception will not apply); 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

                                         11
                                  No. 07-40416

constitutional rights); Red Lake Band of Chippewa Indians v. United States, 800
F.2d 1187, 1196 (D.C. Cir. 1986) (“A corollary to these principles, and our basis
for affirming the district court’s holding on this issue, is that a decision cannot
be shielded from liability if the decisionmaker is acting without actual authority.
. . . An employee of the government acting beyond his authority is not exercising
the sort of discretion the discretionary function exception was enacted to
protect.”); Birnmaum v. United States, 588 F.2d 319, 329 (2d Cir. 1978) (“A
discretionary function can derive only from properly delegated authority.
Authority generally stems from a statute or regulation, or at least from a
jurisdictional grant that brings the discretionary function within the competence
of the agency. Discretion may be as elastic as a rubber-band, but it, too, has a
breaking point. An act that is clearly outside the authority delegated cannot be
considered as an abuse of discretion.” (internal quotation marks and citations
omitted)); but see Kiiskila v. United States, 466 F.2d 626, 627-28 (7th Cir. 1972)
(holding that conduct by commanding officer of military base, although
“constitutionally repugnant,” fell within the discretionary function exception).


      Admittedly, this court and others have been less than clear about where
this “scope of authority” analysis fits within the Gaubert factors: arguably some
courts have treated it as a prerequisite, see, e.g., Nurse, 226 F.3d at 1001-02,
while others have seemingly integrated it into the first Gaubert factor. See, e.g.,
McElroy v. United States, 861 F. Supp. 585, 593 (W.D. Tex. 1994). Nevertheless,
it is overwhelmingly clear that, as the First Circuit has written, “courts have
read the Supreme Court’s discretionary function cases as denying protection to
actions that are unauthorized because they are unconstitutional, proscribed by
statute, or exceed the scope of an official’s authority.” Thames Shipyard &
Repair Co. v. United States, 350 F.3d 247, 254 (1st Cir. 2003) (internal citations
omitted). Because the Constitution can limit the discretion of federal officials

                                        12
                                       No. 07-40416

such that the FTCA’s discretionary function exception will not apply, if the
Agents acted in violation of R.M.G.’s constitutional rights, and therefore outside
their scope of authority, that conclusion would eclipse the district court’s
analysis under the Gaubert framework.
       We now turn to consider whether Castro sufficiently alleged that the
Border Patrol Agents violated the scope of their authority here.                       In her
complaint, Castro states that the Agents violated R.M.G’s Fourth and Fifth
Amendment rights when they detained her in immigration custody with
Gallardo and his relatives even though they knew she was a U.S. citizen, and
that such actions not only went beyond the scope of their authority, but also
violated the constitution.6         While it is well-recognized that violations of
constitutional mandates are not actionable under the FTCA, see Meyer, 510 U.S.
at 478 (“The United States simply has not rendered itself liable under § 1346(b)
for constitutional tort claims.”), the occurrence of such a violation would involve
the performance of a non-discretionary function for jurisdictional purposes, if the
constitutional tort is also cognizable as an intentional tort under state law. As
a federal district court explained:
      [A] court must determine whether there is a specific and intelligible
      constitutional mandate that involves or is related to the alleged
      intentional torts of the accused officer(s). If such a mandate exists,
      the Court will conclude, for jurisdictional purposes only, that the
      alleged torts occurred during the performance of a non-discretionary
      function. Upon reaching such a conclusion, the Court may determine



       6
         See, e.g., First Amended Complaint at paragraphs 36 (“despite Defendant’s recognition
of Plaintiff R.M.G.’s status as a U.S. citizen, Defendant United States intentionally,
maliciously, and recklessly violated Plaintiffs’ right to procedural due process guaranteed by
the Fifth Amendment”), 69 (border officials “willfully detained R.M.G. without her consent or
the consent of her U.S. citizen parent, and the detention was without legal authority or
justification”), and 70 (once border officers “knew or should have known that R.M.G. was a U.S.
citizen and that a U.S. citizen parent was present to take possession of her and did not release
her, Defendant United States had no legal authority or justification to continue its detention
of the child”).

                                              13
                                  No. 07-40416

     the merits of the section 2680(h) intentional tort claims under the
     applicable state tort law.

McElroy, 861 F. Supp. at 593-94. As the McElroy court recognized, “[t]he
Gaubert test merely instructs the reviewing court to determine whether the
alleged conduct ‘involve[s]’ mandatory compliance with a federal statute,
regulation, or policy, not whether the statute, regulation, or policy was violated.”
Id. at 593 n.16; see also Garcia v. United States, 896 F. Supp. 467, 475-76 (E.D.
Pa. 1995) (“Because we cannot at this point preclude the possibility that the
inspectors’ conduct was unconstitutional, we cannot hold that the challenged
conduct falls within the discretionary function exception.”). Accordingly, the
issue before us is whether the complaint and any properly-considered facts could
support a finding that the Border Patrol Agents’ alleged conduct exceeded the
scope of their statutory or constitutional authority, not determining whether
such a violation actually occurred.
      We hold that Castro’s complaint does sufficiently allege that the Border
Patrol Agents’ actions exceeded the scope of their authority. The Border Patrol,
officially called The Bureau of Customs and Border Protection, is an agency of
the Department of Homeland Security, and is specifically included as a defined
agency subject to the Immigration and Nationality Act of 1953 (“INA”), 8 U.S.C.
§ 1101 et seq. See 8 C.F.R. § 1.1. Fundamentally, the INA’s scope is limited to
regulating the entry of aliens as well as their detention, expulsion/removal, and
naturalization. See, e.g., 8 U.S.C. § 1103(a)(1); 8 U.S.C. § 1101(a)(23). Within
this statutory grant of authority, Border Patrol Agents have, inter alia, broad
discretion in making determinations in matters such as the detention, parole,
or deportation of foreign nationals illegally present in the United States. See,
e.g., 8 U.S.C. § 1226; 8 C.F.R. §§ 236.1-236.7; INS v. Yueh-Shaio Yang, 519 U.S.
26, 30 (1996) (explaining the broad INS discretion in determining who, along a
class of eligible aliens, may be granted relief from removal). However, the power

                                        14
                                 No. 07-40416

of Border Patrol Agents to detain U.S. citizens is quite limited. While Border
Patrol Agents possess a general arrest authority for crimes committed in their
presence, 8 U.S.C. § 1357(a)(5), generally speaking they do not have authority
to arrest or detain U.S. citizens. See, e.g., United States v. Brigoni-Ponce, 422
U.S. 873, 884 (1975) (writing that the Fourth Amendment “forbids stopping or
detaining persons for questioning about their citizenship on less than a
reasonable suspicion that they may be aliens”).
      The Government makes two arguments for why the Agents were within
their statutory grant of authority. First, it cites 8 C.F.R. § 240.25(b) which
states that immigration officials “may attach to the granting of voluntary
departure any conditions [they] deem[ ] necessary to ensure the alien’s timely
departure from the United States . . . .” The Government contends that this is
simply all the Agents did here. Second, it cites 8 U.S.C. § 1103(a)(3) which
provides that the Secretary of Homeland Security “shall establish such
regulations; prescribe such forms of bond, reports, entries, and other papers;
issue such instructions; and perform such other acts as he deems necessary for
carrying out his authority under the provisions of this chapter.”            The
Government then relies on language from Gaubert to make the argument that
the Agents’ actions were all planning-level decisions that are covered by the
discretionary function exception. See 499 U.S. at 323 (“Where Congress has
delegated the authority to an independent agency or to the Executive Branch to
implement the general provisions of a regulatory statute and to issue regulations
to that end, there is no doubt that planning-level decisions establishing
programs are protected by the discretionary function exception, as is the
promulgation of regulations by which the agencies are to carry out the
programs.”).
      Both of these arguments are unavailing. The Government’s first argument
fails because, as Castro highlights, Gallardo was removed in December 2003

                                       15
                                     No. 07-40416

pursuant to the reinstatement of a prior order of removal and not by voluntary
departure; therefore 8 C.F.R. § 240.25(b) is simply irrelevant. The Government’s
second argument is without merit because even though governmental actors
have wide discretion to carry out their statutory and regulatory obligations,
courts have never interpreted delegated authority so broadly as to infringe upon
constitutionally-protected rights and freedoms. See, e.g., Hernandez v. Cremer,
913 F.2d 230, 237 (5th Cir. 1990) (explaining that courts should “construe
narrowly all [Congressionally-]delegated powers that curtail or dilute
[constitutional protections.]” (citing Kent v. Dulles, 357 U.S. 116, 129 (1958))).
The Government’s contention that 8 U.S.C. § 1103(3) could be interpreted so
broadly as automatically to override R.M.G.’s Fourth Amendment right from
unreasonable seizure or her Fifth Amendment right to due process is simply
untenable.
      We are cognizant of the challenging circumstances in which Border Patrol
Agents undoubtedly often find themselves because of the complexities of
immigration enforcement, and we agree with the district court that, particularly
in this instance, they were faced with a “difficult situation.”7 As such, we
emphasize the narrowness of our holding. Had the Border Patrol Agents not
known R.M.G.’s citizenship status or if they had doubted Castro’s assertions that
R.M.G. was a U.S. citizen, their decision to detain the child with her father
would likely not be intertwined with the constitutional strands that are
prominent in this appeal of a 12(b)(1) dismissal for lack of subject matter
jurisdiction. However, here the Agents concede that they knew R.M.G. was a
U.S. citizen.



      7
        Of course, while it is true that this entire situation could have been avoided had
Castro obtained a custody order before the repatriation transport carrying Gallardo and
R.M.G. left, ultimately Castro’s actions are irrelevant in determining whether the Border
Patrol Agents’ actions are covered by the discretionary function exception.

                                           16
                                     No. 07-40416

      Castro alleges a plausible set of facts supporting subject matter
jurisdiction because based on her complaint, the Border Patrol Agents’ actions
in detaining R.M.G. implicate constitutional concerns and, therefore, may have
been non-discretionary.       We hold that the district court legally erred in
concluding that the discretionary function exception to the FTCA deprived it of
jurisdiction without first determining whether the Agents’ conduct was outside
their scope of authority.8 We remand this case for the district court to consider
in the first instance to what extent the alleged constitutional violations are
cognizable under Castro’s FTCA claims. We highlight that our holding is limited
to the jurisdictional question presented on appeal; nothing we have written
should be interpreted to speak to the merits of either Castro’s allegations of
constitutional violations or her FTCA claims.


                                   CONCLUSION
      For the foregoing reasons, the judgment of the district court as to Castro’s
FTCA claims is REVERSED, and this case is REMANDED for proceedings not
inconsistent with this opinion.




      8
         Accordingly, we need not address Castro’s argument that the Agents also exceeded
their authority by making a de facto custody determination.

                                           17
                                  No. 07-40416

JERRY E. SMITH, Circuit Judge, dissenting:

      And the king said, Bring me a sword. And they brought a sword before the
king. And the king said, Divide the living child in two, and give half to the one,
and half to the other. 1 Kings 3:24-25.
       We face a situation at least as old as the one faced by King Solomon, and
one requiring his wisdom: what to do when two parents claim a child. I am no
Solomon, and neither is the majority. I do not know the right answer, if there
is one, and neither do my able colleagues. It is not the job of the federal courts
to make that choice or to second-guess the decision of those to whom the heavy
responsibility is given.
       For two reasons, I respectfully dissent. First, the majority fundamentally
misunderstands sovereign immunity and the Federal Tort Claims Act (“FTCA”),
falling for the alluring but empty belief that if something really unfortunate oc-
curs, someone always must pay. Prodded by that misunderstanding, the majori-
ty eviscerates much of the discretionary function exception, holding that when-
ever a Border Patrol officer violates the ConstitutionSSeven if he has no reason
to know he is doing soSShe necessarily acts beyond his discretion. The majority’s
approach subjects the United States to substantial liability that is neither au-
thorized by statute nor compelled by precedent. Second, even under the majori-
ty’s misguided theory, the United States should not be liable, because, under
Castro’s complaint, the Border Patrol agents did not violate R.M.G.’s constitu-
tional rights or otherwise exceed their lawful authority.

             I. The Majority Misunderstands Sovereign Immunity.
       Because of sovereign immunity, matters of the federal fisc are left to the
political branches unless the government has explicitly waived its immunity.
See Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). Under the FTCA,
the United States has consented to certain types of suits, 28 U.S.C. § 1346(b),
but the waiver of immunity is far from complete, and there are a number of ex-
ceptions, including the discretionary function exception, 28 U.S.C. § 2680(a),
which denies subject-matter jurisdiction to the federal courts over a great deal



                                       18
                                         No. 07-40416

of potentially unlawful conduct.1 Likewise, consistently with the purposes and
history of sovereign immunity, “the exceptions that do appear in the FTCA must
be strictly construed in favor of the government.” Truman, 26 F.3d at 594 (citing
Atorie Air, Inc. v. Fed. Aviation Admin., 942 F.2d 954, 958 (5th Cir. 1991)).
These basic principles of sovereign immunity are not contested.
      The majority nonetheless cites dictum from Sutton v. United States, 819
F.2d 1289, 1293 (5th Cir. 1987), and opinions from other circuits, for the as-
toundingly broad proposition that the FTCA’s discretionary function exception
does not apply whenever a federal officialSSeven without good reason to knowSS
violates someone’s constitutional rights. Nothing in Sutton, however, turned on
whether a constitutional right was violated; the defendants did not plead any
such violation. See id. at 1291. Rather, the case concerned the interplay be-
tween the discretionary function exception and the intentional tort exception’s
“law enforcement proviso,”2 with the entire matter remanded “because [the dis-
trict court] decided [it] on inadequate factual allegations which prevent[ed] us
from evaluating the appellants’ cause of action in light of the differing statutory
policies” of the two exceptions. Id. at 1292.
      Thus, until now, Sutton’s outlier and truncated musing that constitutional
rights are somehow categorically outside of the discretionary function exception
has not been the law of the Fifth Circuit. It is, first and foremost, irreconcilably
inconsistent with Supreme Court precedent. For instance, it contravenes United
States v. Gaubert, 499 U.S. 315, 322-23 (1991), which holds that the discretion-
ary function bars federal jurisdiction to review a federal officer’s conduct unless
“a federal statute, regulation, or policy specifically prescribe[d] a course of ac-
tion,” provided that the decision was of the type that ought not be “second-
guess[ed]” because it is “grounded in social, economic, and political policy . . . .”
The omission of “Constitution” from the Court’s explicit list of sources that can
create a “mandate” that nullifies the discretionary function exception should be


        1
         The discretionary function exception bars “[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).
        2
            28 U.S.C. § 2680(h). Castro does not allege that § 2680(h) has any bearing on this
case.

                                               19
                                   No. 07-40416

dispositive here.
        This obvious reading of Gaubert finds additional support in FDIC v. Meyer,
510 U.S. 471, 478 (1994), which says that “the United States simply has not ren-
dered itself liable under § 1346(b) [i.e., the FTCA] for constitutional tort claims.”
If all violations of the federal constitution render the discretionary function ex-
ception inapt, Meyer is effectively voided. In sum, the majority’s strained at-
tempt to “eclipse the district court’s analysis under the Gaubert framework” ut-
terly fails.
       It is difficult to conceive of a violation of a constitutional right that does
not also give rise to a state cause of action. For instance, many violations of the
Eighth Amendment by prison officials likely also constitute negligence under
state law. Unconstitutional searches theoretically can be cognizable as trespass.
Violations of the Third Amendment can be characterized as a trespass or an in-
vasion of privacy. Until now, under Meyer, we lacked jurisdiction to consider
these “constitutional tort claims.”
      Under the majority’s framework, by a plaintiff’s artful pleading, the Unit-
ed States can be liable whenever the Constitution is violated even though, under
Meyer, the sovereign is not subject to liability for constitutional torts. The
majority’s two-step rubric would go like this: First, allege a constitutional viola-
tion, thereby avoiding the discretionary function exception. Second, plead a
state cause of action that overlaps with that constitutional violation, then seek
damages under that state cause of action. Voila! No more sovereign immunity.
    Properly understood, however, federal sovereign immunity is more robust
than that. In Santos v. United States, No. 05-60237, 2006 WL 1050512 (5th Cir.
Apr. 21, 2006) (per curiam) (unpublished), we affirmed the dismissal of a prison-
er’s state law negligence claim that overlapped with his contention that the
Eighth Amendment had been violated. The plaintiff argued that his negligence
claims should go forward, despite the discretionary function exception, because
“no one has discretion to violate another’s constitutional rights.” Id. at *3. We
promptly rejected that argument, holding that

      an inmate may bring a[n] . . . action [under Bivens v. Six Unknown
      Agents of the Federal Bureau of Narcotics, 40 U.S. 388 (1971),]
      against individual officers for a[n] alleged constitutional violation,

                                         20
                                        No. 07-40416

       but he may not bring an action against the United States, the [Bur-
       eau of Prisons, or its] officers in their official capacities as such
       claims are barred by the doctrine of sovereign immunity.”

Id. (some alterations in original) (internal quotation omitted). Contrary to the
reasoning in Santos, the majority’s wholehearted invocation of Sutton’s dictum
reads much of the discretionary function exception out of the federal code.
       Under the majority’s view, the United States may be liable for conduct
even where its officers cannot be. This turns Bivens on its head. In Meyer, 510
U.S. at 485, the Court explained that it had “implied a cause of action against
federal officials in Bivens in part because a direct action against the Government
was not available.” In light of Meyer, it makes no sense to treat FTCA claims
against the United States more liberally than we treat Bivens actions against
individual federal officers, but that is exactly what the majority’s holding means:
Because of qualified immunity, Bivens at least requires that constitutional rights
be “clearly established” before liability ensues against federal officers, see, e.g.,
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), but the majority’s novel liability
scheme against the United States apparently does not so require, because it re-
verses the district court without even pointing to what clearly established rights
could have been violated under the facts Castro pleaded.3
       Even if the Border Patrol violated R.M.G.’s constitutional rights, it did not
violate any clearly established right.4 Thus, even assuming that we should nar



       3
         The majority is confused on this point. Quoting a district court, it states that the con-
stitutional mandate must be “specific and intelligible.” It then summarily states that “[w]e
hold that Castro’s complaint does sufficiently allege that the Border Patrol Agents’ actions ex-
ceeded the scope of their authority.” The majority does not explain, however, how a reasonable
agent could have known that his conduct was violating a “specific and intelligible” constitution-
al mandate when he was exercising his discretion.
       4
         Castro alleges that R.M.G.’s clearly established Fourth Amendment right to be free
from unreasonable seizure was violated, but it is not clearly established that leaving a minor
with his parent, in the absence of any court order dictating otherwise, is an unreasonable seiz-

                                               21
                                         No. 07-40416

row the scope of the discretionary function exception so that it does not apply
where the Constitution has been violatedSSa holding that would allow nearly ev-
ery Bivens action also to be an action against the United States, contrary to Mey-
erSSthere has to be a limit. Before subjecting the United States to suit, at a min-
imum we ought to require that the constitutional “mandate” be clearly estab-
lished with particularity, something that cannot be shown here.5


               II. No Constitutional or Statutory Rights Were Violated.
       Even if one accepts the majority’s erroneous understanding of sovereign
immunity, the district court was correct to dismiss for lack of subject-matter jur-
isdiction, because no constitutional rights were violated. The notion that the
Border Patrol agents unconstitutionally “placed in custody” or “detained”
R.M.G., a baby less than one year old, is false on its face. We routinely allow
parents to make decisions that affect their children’s constitutional rights,6 and
it is not contested that Gallardo consented to R.M.G.’s being taken with him to
the Border Patrol station, just as he consented to the baby’s going with him to


       4
           (...continued)
ure.
       5
         The concern that constitutional rights at least be clearly established before the United
States can be liable is in line with the direction taken in Nurse v. United States, 226 F.3d 996,
1002 n.2 (9th Cir. 2000), which expressly reserved the issue: “[W]e do not make any decision
regarding the level of specificity with which a constitutional proscription must be articulated
in order to remove the discretion of a federal actor.”
       6
          Indeed, parents can consent to conduct that would otherwise constitute a violation of
a child’s core Fourth Amendment rights. See, e.g., Roe v. Tex. Dep’t of Protective & Regulatory
Servs., 299 F.3d 395, 407-08 (5th Cir. 2002) (holding that a social worker must demonstrate
probable cause and obtain a court order, obtain parental consent, or act under exigent circum-
stances to justify the visual body cavity search of a juvenile in the residence); Dubbs v. Head
Start, Inc., 336 F.3d 1194, 1207 (10th Cir. 2003) (stating, in deciding whether a government
program that gave children physical exams, which included blood tests and examination of
genitalia, violated the Constitution, that “if the trier of fact concluded that the parents in this
case, on behalf of their minor children, actually consented to the examinations, there would
be no Fourth Amendment violation”).

                                               22
                                       No. 07-40416

Mexico. This explicit parental consent means that R.M.G.’s constitutional rights
were not violated.7 Make no mistake, she was not arrested, detained, held in
custody, or deportedSSshe was with her father and with his consent.
       Castro also claims the agents acted beyond their statutory powers because
the Border Patrol was never affirmatively authorized to allow non-citizen par-
ents to consent to bringing their citizen children with them to detention centers
and other countries by means of government deportation vehicles. This is equal-
ly unavailing, because the power to allow parents to consent to take their chil-
dren with them is ancillary to the government’s power to detain and deport.8
       To make the matter straightforward, what if both of R.M.G.’s parents were
illegal aliens? Would the Border Patrol be forbidden, by a statute or the Consti-
tution, from allowing her parents to consent to take her to the detention center
while they waited to be deported? Would the agents be forbidden to allow them
to consent to carry her with them on the government transport vehicle to Mexi-
co? To ask these questions is to answer them. Does anyone doubt that the Bor-
der Patrol is authorized, as part of its discretionary authority, to allow families
to stay together while it detains and deports?
       The question of what to do with a child who is an American citizen, when
one or both parents are not, is part of how the Border Patrol implements our
immigration regime’s “general provisions,” and such difficult decisions are exact-
ly the type that “involv[e] the necessary element of choice and [are] grounded in
the social, economic, or political goals of the statute” that the discretionary func-



       7
         The majority accurately quotes paragraph 36 of the First Amended Complaint, but
that paragraph says nothing to explain what alleged actions were taken in supposed violation
of the Constitution. Accordingly, the issue is waived and was properly dismissed. See Stewart
Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000)
(noting that arguments raised for the first time on appeal will not be considered).
       8
         Castro acknowledges some ancillary powers, such as the power to take R.M.G. to the
station in a Border Patrol vehicle.

                                              23
                                         No. 07-40416

tion exception protects. Gaubert, 499 U.S. at 323. It seems that under the ma-
jority’s view, the Border Patrol violates both constitutional and statutory law
when it “detains” a citizen child along with the child’s Mexican-national parents,
especially when it permits the child’s parents to take him with them to Mexico.
       Likewise, if we accept the proposition that if Border Patrol agents make
a custody determination, they act beyond their statutory authority, Castro’s
claim should still be dismissed, because the agents did not make a custody deter-
mination. Instead, they elected not to interfere with the status quo as R.M.G.’s
parents had left it. If the government had forcibly taken R.M.G. and given her
to Castro, that would be picking Castro over Gallardo; if Castro had R.M.G., and
the government physically took R.M.G. and gave her to Gallardo, that would be
picking him over Castro. Preserving the status quo, however, was not making
a custody determination, but instead was merely respecting the parents’ private
ordering.9
       In fact, it is the majority that now makes an ex post custody determination
by establishing the rule that custody of a child born to an American citizen and
an illegal alien is presumptively granted to the American-citizen parent. That
may be a fine default rule, but it is not for a federal court of appeals to delve into
family law, traditionally the exclusive province of the states.10
       Furthermore, because this new custody rule does not actually affect Castro


       9
        Nor did the government make a de facto custody determination, a doctrine recognized
in another context in Suboh v. Dist. Attorney’s Office, 298 F.3d 81 (1st Cir. 2002). The agents
had to do something with R.M.G.; they called the Texas Department of Family and Protective
Services, which responded that it “would not get involved,” because R.M.G. was not being
abused. The majority acknowledges the dilemma the agents faced.
       10
         See Ex parte Burrus, 136 U.S. 586, 593-94 (1890) (“The whole subject of the domestic
relations of husband and wife, parent and child, belongs to the laws of the states, and not to
the laws of the United States.”); see also Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)
(“We conclude, therefore, that the domestic relations exception, as articulated by this Court
since Barber [v. Barber, 62 U.S. 582 (1858)], divests the federal courts of power to issue divorce,
alimony, and child custody decrees.”).

                                               24
                                       No. 07-40416

but will affect prospective custody determinations, it is more akin to a policy.
And when state custody law is silent, the relevant state agency says it will not
get involved, and the Border Patrol is confronted with a custody matter and de-
cides to retain the status quo as the parents left it, it is not the role of the federal
courts to second-guess and decide which policy is best. Castro alleges the Border
Patrol acted without authority and rendered a de facto custody determination,
but in fact it is the majority that acts without authority and announces a de
jure custody policy.
       The agents were faced with the following unfortunate situation: Gallardo
was detained; Castro had left the home days before; R.M.G., a baby, could not be
left alone; Gallardo wanted R.M.G. to go with him; Gallardo had legal right to
R.M.G., and no court order had deprived Gallardo of that right; Castro also
wanted to take the child, but she had no court order and thus no superior right;
Texas officials expressly said that the state would not take R.M.G., because she
was not being abused; Texas law is opaque on what to do when two parents with
equal right disagree about where a child should live, but the better reading of
Texas law is that the parent with possession is authorized to choose11; Gallardo
had actual possession of R.M.G., and he wanted her to go with him to Mexico.
       In this difficult dilemma, the agents did the best that they could, and the
choice they made was the one that least enmeshed the federal government in
state custody issues. It is hard to imagine a more appropriate case for invoking
the discretionary function exception.

       11
          Castro repeatedly refers to Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), which states
the factors that Texas courts consider in deciding custody and which does not expressly include,
as a factor, which parent has actual possession. From this Castro argues that possession does
not matter under Texas law.

       This misses something important. Without first obtaining a court order, the parent
seeking custody cannot call the police and require them to transfer possession of the child. In
other words, in the absence of an order, Texas does recognize the status quo, at least as to
whether the formal power of the state will be exercised.

                                              25
                                       No. 07-40416

                                     III. Conclusion.
       No one is pleased that Castro did not see her daughter for three years,12
but as a legal matter, the discretionary function exception applies. The first
prong of Gaubert was satisfied, because the Border Patrol agents’ decisions were
“the product of judgment or choice.” Gaubert, 499 U.S. at 322. The choices
made, moreover, were constitutional, because R.M.G. was neither unlawfully de-
tained nor deported, but instead was properly held by her father’s consent. The
second prong of Gaubert was also satisfied, because the agents’ decisions were
not of the sort that should be “second-guess[ed],” id. at 323, given that the ques-
tion of what to do with a citizen child when the parent with possession is deport-
ed, and state and federal law are silent, is a policy matter best left to the agency.
Faced with a bad situation, the agents decided to retain the status quo as be-
tween the parents.
       Because the district court was correct to dismiss for lack of subject-matter
jurisdiction based on the discretionary function exception, I respectfully dissent.




       12
         If the Border Patrol agents had taken possession from Gallardo, the facts would have
been hard, too; it is unfair to a father to say that he must leave his daughter merely because
his wife is a citizen and he is not. Faced with a Solomon-splitting-the-baby situation, the
agents decided to leave matters as the parents had left them.

                                             26
