Amarsaikhan Tsolmon v. United States, 841 F.3d 378

Background

Tsolmon, a Mongolian national on a valid H‑1B visa, was stopped on a Greyhound bus by CBP agents for a routine immigration check; he lacked physical immigration papers.
Agent Wilson could not verify Tsolmon’s status after multiple database searches; records erroneously suggested an F‑2 overstay, so Wilson issued a Notice to Appear (NTA) charging unlawful presence.
CBP policy required detainment of anyone issued an NTA; Tsolmon was arrested, held at a correctional facility for about two days, and alleges poor conditions and deprivation of phone access and paperwork.
A supervisor, Agent Stanley, later located records verifying Tsolmon’s valid H‑1B status and Tsolmon was released the same day.
Tsolmon filed an administrative claim and then an FTCA suit against the United States asserting false arrest/false imprisonment and negligence under Louisiana law; the district court dismissed for lack of subject‑matter jurisdiction under the FTCA discretionary function exception.
On appeal, Tsolmon challenged only the district court’s conclusion that the agents’ conduct (investigation and issuance of the NTA) was discretionary and thus shielded by 28 U.S.C. § 2680(a).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether agents’ investigation and decision to issue the NTA were discretionary under the FTCA exception	Tsolmon: issuance of NTA and resultant detention flowed from an investigation but detention was mandated by CBP policy, so there was no protected choice	Government: investigation steps and decision whether to issue NTA involve judgment calls (which searches to run, whom to contact, whether to charge), so conduct is discretionary	Held: Conduct challenged (investigation and decision to issue NTA) is discretionary and falls within § 2680(a) exception
Whether CBP policy requiring detention upon issuance of an NTA removed discretion for purposes of the FTCA exception	Tsolmon: the mandatory CBP policy eliminated officer choice as to detention, making the act nondiscretionary	Government: the operative challenged acts are the investigative/charging decisions, not the later mandatory detention policy	Held: Court framed claims around the investigation/charging decision in the complaint and did not accept an after‑the‑fact attack on the policy; it did not decide whether following the policy itself would be discretionary
Whether 8 U.S.C. § 1357(a)(2) unlawfully limited the agents’ authority (i.e., no reasonable belief or likelihood of escape) so that their actions were not protected by the discretionary exception	Tsolmon: Wilson lacked “reason to believe” and no showing that Tsolmon was likely to escape, so arrest exceeded statutory authority and is non‑discretionary	Government: § 1357(a)(2) uses a judgmental “reason to believe” standard and does not eliminate discretion; Wilson’s inability to verify status and arrest at an interstate bus station supported a reasonable belief and flight risk	Held: Section 1357(a)(2) does not provide specific mandatory direction removing discretion; allegations did not show a statutory violation, so discretionary exception still applies
Whether the law‑enforcement proviso (28 U.S.C. § 2680(h)) preserves suit for false arrest/imprisonment	Tsolmon: claimed law‑enforcement proviso applies to permit FTCA claims for false arrest	Government: argued proviso inapplicable because discretionary conduct bars waiver	Held: District court concluded proviso did not apply; appeal limited to discretionary issue, and discretionary exception affirmed (proviso not a basis to avoid dismissal)

Key Cases Cited

United States v. Gaubert, 499 U.S. 315 (1991) (establishes two‑part test for discretionary function exception and instructs inquiry whether conduct is of the kind the exception protects)
Berkovitz v. United States, 486 U.S. 531 (1988) (discretionary function exception does not apply when a federal statute, regulation, or policy specifically prescribes a course of action)
Spotts v. United States, 613 F.3d 559 (5th Cir. 2010) (outlines the two inquiries for discretionary‑function analysis in this circuit)
Sutton v. United States, 819 F.2d 1289 (5th Cir. 1987) (decisions about when, where, and how to investigate/prosecute are classic discretionary functions)
Willoughby v. United States ex rel. U.S. Dep’t of the Army, 730 F.3d 476 (5th Cir. 2013) (waiver of sovereign immunity under FTCA is strictly construed)
Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) (standard of review and materials courts may consider on facial jurisdictional motions)
Guile v. United States, 422 F.3d 221 (5th Cir. 2005) (discretionary exception fails only where statute or regulation gives no room for policy judgment)
Collins v. United States, 783 F.2d 1225 (5th Cir. 1986) (example where a regulation left no discretion and thus could take conduct outside the discretionary exception)