Monica CASTRO, For Herself and as Next Friend of R.M.G., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 07-40416.
United States Court of Appeals, Fifth Circuit.
Feb. 20, 2009.
560 F.3d 381
The insurer Defendants argue that this Court should affirm the dismissal of Branch‘s claims on the alternative ground of the FCA‘s public disclosure bar. As discussed above, the public disclosure bar is based upon the notion that a qui tam suit does not benefit the Government if the information about the fraud is already publicly known, unless the plaintiff is an original source. See United States ex rel. Reagan v. E. Tex. Med. Ctr. Reg‘l Healthcare Sys., 384 F.3d 168, 174 (5th Cir.2004). The district court did not reach this ground. Because the district court should have the opportunity to address the facts underpinning the claim of public disclosure and original source and make any necessary findings in the first instance, we do not reach this ground. Similarly, analysis of the Rule 9(b) challenge to Branch‘s complaint is customarily done in the first instance by the district court. We decline to address these issues for the first time on appeal, and we express no opinion on the outcome of these issues on remand.
III. CONCLUSION
We AFFIRM the district court‘s dismissal of Branch‘s claims against State Farm and Allstate. We REVERSE the dismissal of Branch‘s claims against all other Defendants based upon the ground of the first-to-file bar. Rather than address Defendants’ alternative grounds for affirmance, we REMAND the cause so the district court can consider those arguments in the first instance. See Breaux v. Dilsaver, 254 F.3d 533, 538 (5th Cir.2001) (“Although this court may decide a case on any ground that was presented to the trial court, we are not required to do so.“).
John Albert Smith, III (argued), Corpus Christi, TX, for Defendant-Appellee.
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),
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
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
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. 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 pro-
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 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
On November 14, 2006, the Government filed a motion to dismiss pursuant to
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, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (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 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, 114 S.Ct. 996, 127 L.Ed.2d 308 (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....”
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.”
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.
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, 111 S.Ct. 1267. 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 governmental action is considered discretionary and the first prong is satisfied.
Garza v. United States, 161 Fed.Appx. 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, 111 S.Ct. 1267 (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
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 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 exceed-
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 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.
[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 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.6 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“),
The Government makes two arguments for why the Agents were within their statutory grant of authority. First, it cites
Both of these arguments are unavailing. The Government‘s first argument fails because, as Castro highlights, Gallardo was removed in December 2003 pursuant to the reinstatement of a prior order of removal and not by voluntary departure; therefore
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
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.
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 occurs, some-one always must pay. Prodded by that misunderstanding, the majority eviscerates much of the discretionary function exception, holding that whenever a Border Patrol officer violates the Constitution—even if he has no reason to know he is doing so—he necessarily acts beyond his discretion. The majority‘s approach subjects the United States to substantial liability that is neither authorized by statute nor compelled by precedent. Second, even under
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,
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 astoundingly broad proposition that the FTCA‘s discretionary function exception does not apply whenever a federal official—even without good reason to know—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 between the discretionary function exception and the intentional tort exception‘s “law enforcement proviso,”2 with the entire matter remanded “because [the district 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, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), which holds that the discretionary function bars federal jurisdiction to review a federal officer‘s conduct unless “a federal statute, regulation, or policy specifically prescribe[d] a course of action,” provided that the decision was of the type that ought not be “second-guessed” 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 dispositive here.
This obvious reading of Gaubert finds additional support in FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), which says that “the United States simply has not rendered itself liable
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 invasion 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 United 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 violation, 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, Fed. Appx. -, No. 05-60237, 2006 WL 1050512 (5th Cir. Apr. 21, 2006) (per curiam) (unpublished), we affirmed the dismissal of a prisoner‘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, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),] against individual officers for a[n] alleged constitutional violation, but he may not bring an action against the United States, the [Bureau 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 whole-hearted 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, 114 S.Ct. 996, 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, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), but the majority‘s novel liability scheme against the United States apparently does not so require, because it reverses the district court
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 narrow the scope of the discretionary function exception so that it does not apply where the Constitution has been violated—a holding that would allow nearly every Bivens action also to be an action against the United States, contrary to Meyer—there has to be a limit. Before subjecting the United States to suit, at a minimum we ought to require that the constitutional “mandate” be clearly established 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 jurisdiction, 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 Mexico. This explicit parental consent means that R.M.G.‘s constitutional rights were not violated.7 Make no mistake, she
Castro also claims the agents acted beyond their statutory powers because the Border Patrol was never affirmatively authorized to allow non-citizen parents to consent to bringing their citizen children with them to detention centers and other countries by means of government deportation vehicles. This is equally unavailing, because the power to allow parents to consent to take their children 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 Constitution, 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 Mexico? To ask these questions is to answer them. Does anyone doubt that the Border 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 exactly 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 function exception protects. Gaubert, 499 U.S. at 323, 111 S.Ct. 1267. It seems that under the majority‘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 determination. 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 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 decides 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
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.
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, 111 S.Ct. 1267. The choices made, moreover, were constitutional, because R.M.G. was neither unlawfully detained 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-guessed,”
Because the district court was correct to dismiss for lack of subject-matter jurisdiction based on the discretionary function exception, I respectfully dissent.