     Case: 15-20609   Document: 00513748719     Page: 1   Date Filed: 11/07/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                 No. 15-20609                        FILED
                                                              November 7, 2016

AMARSAIKHAN TSOLMON,
                                                                Lyle W. Cayce
                                                                     Clerk

             Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

             Defendant - Appellee




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


Before KING, SMITH, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      The Federal Tort Claims Act (FTCA) waives sovereign immunity for
many torts committed by federal employees.        The statute’s “discretionary
function” exception preserves the federal government’s immunity, however,
when an employee’s acts involve the exercise of judgment or choice. United
States v. Gaubert, 499 U.S. 315, 322 (1991). We must decide whether an
investigation into someone’s immigration status is considered discretionary
when that investigation culminates in a detainment mandated by agency
policy.
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                                      No. 15-20609
                                             I.
       Late one Friday evening, Amarsaikhan Tsolmon was riding on a
Greyhound bus to visit his mother in northern Louisiana. The bus was stopped
in Lake Charles, Louisiana by Customs and Border Protection (CBP) agents
Robert Wilson and Michael Lewandowski, who boarded the bus to perform a
routine check of the passengers’ immigration status. 1
       When Wilson reached Tsolmon’s seat, Tsolmon stated that he was a
“Temporary Visitor.” This was correct, as Tsolmon is a Mongolian citizen
lawfully in the United States on an H-1B temporary worker visa. But Tsolmon
did not have a physical copy of his immigration papers, despite a law requiring
registered aliens eighteen or over to carry identifying documents. 8 U.S.C.
§ 1304(e). Instead, he could only produce a Texas identification card.
       After being unable to verify Tsolmon’s status through CBP’s New
Orleans dispatch, Wilson escorted him off the bus to continue the investigation.
While Wilson contacted CBP to run additional searches, Tsolmon called his
roommate in Houston to try to get more identifying information on his
immigration status.       The roommate provided Wilson information over the
phone and emailed Tsolmon a photo of his I-94 form and Mongolian passport.
But for reasons disputed by the parties Wilson was still unable to verify
Tsolmon’s status.       The records check from other CBP offices incorrectly
indicated that Tsolmon was an F-2 visa overstay, with no mention of his H-1B
temporary worker visa.
       With no information validating Tsolmon’s legal status, Wilson arrested
Tsolmon, took him to the Lake Charles CBP station, and conducted further



       1Given that this case was dismissed at the pleading stage, the recitation of facts is
based on Tsolmon’s allegations, which must be taken as true at this stage. The recitation is
also supplemented with undisputed facts from the government’s motion to dismiss.

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                                No. 15-20609
computer searches to find a record of Tsolmon’s visa. Wilson also contacted his
Supervisory Patrol Agent Daniel Stanley, who recommended continuing the
computer searches and contacting Tsolmon’s relatives to see if anyone had
identifying numbers or documents on Tsolmon’s status. Tsolmon and Wilson
spoke on the phone with Tsolmon’s mother, but Wilson was still unable to
locate records verifying Tsolmon’s claimed status.       After several hours of
searching, Wilson decided to process Tsolmon as a nonimmigrant overstay and
issued him a Notice to Appear on the charge that Tsolmon was in violation of
his F-2 visa—the only documentation Wilson uncovered through his record
search at the time.
      Tsolmon was taken to the Southwest Louisiana Correctional Center
early Saturday morning, pursuant to CBP policy requiring the detainment of
anyone who is issued a Notice to Appear.        Tsolmon asserts that at the
Correctional Center he was subjected to a medical exam and tuberculosis test,
confined in an overcrowded cell without access to clean drinking water, not
given access to a phone, and not given paperwork documenting his detainment.
      On Sunday, Stanley arrived at the CBP station and conducted a more
extensive search for all persons with the last name Tsolmon in a database that
Wilson had previously searched. After a few hours, Stanley at last found a
record verifying that Tsolmon held a valid H-1B visa. Later that evening,
Tsolmon was taken to the Lake Charles CBP station to be released. Soon after,
his brother arrived from Houston and drove him home.
      Tsolmon filed an administrative claim with CBP alleging that the
incident violated his Fourth Amendment rights and constituted false arrest,
false imprisonment, intentional infliction of emotional distress, and negligent
infliction of emotional distress. After CBP denied his claim, Tsolmon filed the
present suit. He originally asserted FTCA claims against the government and
Bivens claims against the individuals involved in his detention.
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                                      No. 15-20609
       His amended complaint asserts only two causes of action against the
United States under the FTCA.              The first alleges false arrest and false
imprisonment under Louisiana tort law based on his “forty-eight hour arrest,
detention and imprisonment . . . [that] was unlawful because it was done
without a warrant and without probable cause” in violation of the Fourth
Amendment and 8 U.S.C. § 1347(b). The second alleges negligence under
Louisiana law, based on allegations that both Wilson and Stanley were
“negligent in not verifying Plaintiff’s immigration status for almost two days
despite having the necessary information to do so.” The government moved to
dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction.
       The district court granted the government’s motion, concluding that (1)
the alleged conduct falls within the discretionary function exception to the
FTCA’s waiver of sovereign immunity, 28 U.S.C. § 2680(a), and (2) that the law
enforcement proviso, 28 U.S.C. § 2680(h), does not apply. 2 Tsolmon appeals
only the district court’s decision that the discretionary function exception
applies.
                                            II.
       We review de novo a dismissal for lack of subject matter jurisdiction.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). In deciding such
a motion, courts can consider: “(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 resolution of disputed facts.”
Id. The district court considered the well-pleaded fact from the amended
complaint, undisputed facts in the record, and disputed facts viewed in the
light most favorable to Tsolmon; it did not resolve disputed facts.


       2The law enforcement proviso extends the FTCA’s waiver of sovereign immunity to
claims against law enforcement officers “arising . . . out of assault, battery, false
imprisonment, false arrest, abuse of process, or malicious prosecution.” 28 U.S.C. § 2680(h).
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                                       III.
        The FTCA is a limited waiver of sovereign immunity that allows
plaintiffs to bring state law tort actions against the federal government. 28
U.S.C. § 2674. Courts consider whether the FTCA applies via a Rule 12(b)(1)
motion, because whether the government has waived its sovereign immunity
goes to the court’s subject matter jurisdiction. Willoughby v. United States ex
rel. U.S. Dep’t of the Army, 730 F.3d 476, 479 (5th Cir. 2013); see also 28 U.S.C.
§ 1346(b)(1). Waiver of sovereign immunity is strictly construed, meaning
uncertainty is decided in favor of the government. Willoughby, 730 F.3d at
480.
        The discretionary function exception is one of several limitations on the
FTCA’s waiver. The exception preserves the government’s sovereign immunity
when the plaintiff’s claim is based on an act by a government employee that
falls within that employee’s discretionary authority.       28 U.S.C. § 2680(a).
Whether an official’s actions fall within the exception involves two inquiries:
(1) “the conduct must be a ‘matter of choice for the acting employee,’” Spotts v.
United States, 613 F.3d 559, 567 (5th Cir. 2010) (quoting Berkovitz ex rel.
Berkovitz v. United States, 486 U.S. 531, 536 (1988)); and (2) “the judgment
[must be] of the kind that the discretionary function exception was designed to
shield,’” id. at 568 (quoting United States v. Gaubert, 499 U.S. 315, 322–23
(1991)). The plaintiff has the burden of establishing that the discretionary
function exception does not apply. Spotts, 613 F.3d at 569.
        Tsolmon appeals only the district court’s determination that the
challenged conduct involved judgment or choice.            He invokes case law
recognizing that if “a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow,” then the government
employee does not truly have a choice (or at least a choice that the law will
recognize as falling within the discretionary function exception). Berkovitz,
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486 U.S. at 536. One example a court has recognized is when a government
agent lies or mischaracterizes evidence in a criminal complaint, as the Federal
Rules of Criminal Procedure require allegations in a criminal complaint to be
sworn as true. Camacho v. Cannella, 2012 WL 3719749, at *10 (W.D. Tex.
Aug. 27, 2012) (citing FED. R. CRIM. P. 3). Tsolmon argues that his case also
involves a mandate that eliminated the officer’s discretion, citing the CBP
policy requiring officers to detain all aliens issued a Notice to Appear.
Although the allegedly negligent actions of the officers led to the issuance of
the Notice to Appear, Tsolmon argues that the decision to detain him after that
Notice was issued was nondiscretionary because CBP policy required it.
          But the district court determined that the conduct at issue is “the
conclusions the CBP agents drew from their investigation of Tsolmon’s
immigration status and the basis and timing of Agent Wilson’s decision to issue
[a Notice to Appear] charging Tsolmon with being an alien illegally present in
the United States, which [ ] resulted in Tsolmon’s arrest and [ ] incarceration.”
The court based that conclusion largely on the amended complaint, which
focuses on the steps the officers took to try to verify Tsolmon’s immigration
status.
          The district court’s framing of the relevant conduct is more consistent
with Tsolmon’s allegations. The amended complaint speaks at length about
Wilson’s investigation into Tsolmon’s immigration status, but never mentions
the CBP policy he now asserts is at issue. Nor did Tsolmon raise the CBP
policy in his administrative complaint.       See 28 U.S.C. § 2675 (requiring
administrative exhaustion for FTCA claims). Tsolmon’s false arrest claim also
demonstrates the difficulty of his attempt to separate the policy from the
investigative steps. The policy standing alone did not mandate Tsolmon’s
detention; the preliminary determination to issue a Notice to Appear was a
crucial step in the chain of events. We thus evaluate the application of the
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                                       No. 15-20609
discretionary function exception with respect to the conduct challenged in
Tsolmon’s amended complaint, not in the context of a challenge to the CBP
policy on which he now focuses. 3
       Having identified the relevant allegations as Wilson’s investigation into
Tsolmon’s immigration statute and decision to issue the Notice to Appear, the
remaining analysis is straightforward. “[D]ecisions on when, where, and how
to investigate and whether to prosecute” have long been found to be core
examples of discretionary conduct for which the United States maintains its
immunity. Sutton v. United States, 819 F.2d 1289, 1294–95 (5th Cir. 1987).
We have applied that not just to officials enforcing the criminal laws, but also
to officials enforcing the immigration laws. Nguyen v. United States, 2003 WL
1922969, at *1–2 (5th Cir. Mar. 31, 2003). The investigation into Tsolmon’s
status demonstrates the numerous choices involved in conducting such an
inquiry. Wilson had to decide: whether to further investigate Tsolmon after
discovering he did not have his immigration papers; which searches to run in
the CBP database; with whom to communicate to try to verify Tsolmon’s
status; and whether to ultimately issue a Notice to Appear when he was unable
to verify Tsolmon’s status.
       Tsolmon relies on a statute to avoid a holding that the agents’ conduct
falls within the discretionary function exception.                 This time making an
argument that is contained in his pleadings, he contends that the officers



       3 We thus do not decide whether detainment under the policy itself is an act of
discretion. To frame that question, however, is to identify the unusual posture of this
argument. Indeed, Tsolmon’s argument is different from what is typically seen when an
FTCA plaintiff invokes a regulation or statute in trying to avoid the discretionary function
exception. Those cases involve the allegation that a government employee is violating the
statute, not that she is following it. The difference seems to matter at least at the liability
stage. Acting in contravention of a statute not only takes conduct outside the permissible
scope of discretion, it also often establishes negligence per se. In contrast, acting pursuant
to a statute is not likely to be negligent.
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                                      No. 15-20609
exceeded their authority under 8 U.S.C. § 1357(a)(2) when they detained him.
That statute provides that to make an arrest without a warrant, an officer
must: (1) have “reason to believe” that a person is in the United States in
violation of immigration law or regulation and (2) think that the person “is
likely to escape before a warrant can be obtained for his arrest.” Id. Tsolmon
argues that Wilson did not have reason to believe that he was in violation of
immigration law or likely to escape before a warrant could be issued.
       Tsolmon is correct that the discretionary function exception does not
protect officers who break the law or exceed their authority. Sutton, 819 F.2d
at 1293. As the district court correctly noted, however, the exception fails to
protect officers only when the statute governing the action “giv[es] specific
direction as to any of these functions in a way that would make [the acts] non-
discretionary.” Guile v. United States, 422 F.3d 221, 231 (5th Cir. 2005). In
other words, officers are unprotected only when they use their discretion to act
in violation of a statute or policy that specifically directs them to act otherwise.
See, e.g., Collins v. United States, 783 F.2d 1225, 1230–31 (5th Cir. 1986)
(noting that a regulation at issue provided “no room for policy judgment or
decision” once certain conditions were met).              Section 1357(a)(2), with its
judgment-laden “reasonable belief” standard, is not such a statute. 4
                                           ***
       The judgment of the district court is AFFIRMED.




       4   Tsolmon’s allegations also do not establish that the agents violated section
1357(a)(2). Wilson was unable to confirm Tsolmon’s legal status after multiple attempts to
verify it. Tsolmon was arrested at a bus station while travelling between states, which could
plausibly give rise to the fear that Tsolmon would not remain in the jurisdiction before a
warrant could be obtained.

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