M.D.C.G., Individuаlly, as next friend N.L.M.C., A Minor, Plaintiff - Appellant v. UNITED STATES OF AMERICA, Defendant - Appellee
No. 19-40076
United States Court of Appeals for the Fifth Circuit
April 21, 2020
Appeal from the United States District Court for the Southern District of Texas
E. GRADY JOLLY, Circuit Judge:
This appeal has its beginnings on a horrific day from hell. After apprehending MDCG, her fifteen-year-old daughter NLMC, and their fourteen-year-old family friend JMAE for entering the United States without authorization, and after loading them into his vehicle, Border Patrol Agent Esteban Manzanares drove around to various locations in the South Texas countryside where he physically and sexually abused the three helpless immigrants. This abuse included rape, beatings, knife body-carvings, strangulations, and the attempted burial of a living victim. The day from hell climaxed with suicide—of the Border Patrol Agent who was found dead, with JMAE tied to his bed, when alerted law enforcement arrived at his apartment.
MDCG and the two minors brought suit against the United States under the Federal Tort Claims Act (FTCA), asserting claims of assault and battery, false imprisonment/false arrest, intentional and negligent infliction of emotional distress, negligence, and negligent hiring, retention, and supervision. Under
Alas, the FTCA does not extend a helping hand to the victims of Agent Manzanares. We conclude that Manzanares‘s conduсt was outside the scope of his employment, and accordingly, we AFFIRM the district court‘s dismissal of MDCG and NLMC‘s claims based on Manzanares‘s conduct. We further hold that the FTCA‘s discretionary function exception deprived the district court of subject matter jurisdiction over MDCG and NLMC‘s negligent supervision claims. We thus VACATE the portion of the district court‘s judgment which addressed the merits of the negligent supervision claims and REMAND those claims to the district court to DISMISS for lack of jurisdiction.
I.
Manzanares told MDCG that he would be taking her to a facility for mothers and their children. He then drove around with the plaintiffs making sеveral stops. At the second stop, Manzanares placed black restraint bands on the plaintiffs’ wrists and put them in the back of his Border Patrol kilo unit truck. He then drove the plaintiffs to what is alleged to have been the McAllen duty station, a Border Patrol processing facility. But instead of taking the plaintiffs inside the facility, Manzanares left them in his vehicle, entered the duty station alone, and returned to his vehicle two to three minutes later. Manzanares then drove the plaintiffs to an unpopulated area where he taped their mouths and wrists, which he said wаs due to receiving a secondary order.
Manzanares eventually stopped his vehicle and forcibly removed MDCG and her daughter from his truck. Manzanares then struck MDCG‘s face and body, forcibly dragged her up a hill, strangled her, and twisted her neck. Manzanares then pulled out a knife and began to cut MDCG‘s arms and wrists. MDCG believed she was going to be killed and, at some point, lost consciousness. Manzanares then turned to NLMC. NLMC struggled while Manzanares strangled, choked, and twisted her neck. During the assault, Manzanares provocatively touched NLMC‘s breasts and vaginal areа and used his knife to cut her left arm. Manzanares also took pictures of NLMC‘s semi-midpage-ps n=“4“/>unclothed body. When Manzanares was taking these pictures, NLMC played dead.
While Manzanares was assaulting NLMC, MDCG regained consciousness and ran for help. Following her escape, MDCG encountered a Border Patrol agent who asked her why she was disheveled and covered in blood. MDCG told the agent that she had been assaulted by someone “dressed just like you.” After the agent radioed for help, MDCG was transported to the hospital. Meanwhile, apрarently thinking NLMC was dead, Manzanares covered her with dirt and debris and left the area with JMAE in the vehicle. NLMC recovered, ran away, and began to look for her mother. She then encountered another Border Patrol agent, was placed in an ambulance, and was transported to the hospital. Manzanares eventually took JMAE to his apartment where he forcibly bathed her, tied her to a bed, sexually assaulted her, and took nude photos of her. JMAE‘s abuse ended when Manzanares committed suicide as law enforcement closed in on his аpartment, hours after he first arrested his victims.
Manzanares‘s field supervisor was Luis Solis. Although Solis had made initial contact with Manzanares on the morning of March 12, 2014, he did not have any further conversations with Manzanares during his shift. In fact, Solis left his shift without confirming Manzanares‘s whereabouts, even though there is evidence that Manzanares failed to call in foot traffic in his zone and that it was a slow day for the Border Patrol agents. Manzanares‘s supervisors further failed to inspect the interior of Manzanares‘s vehicle when he returned from his shift.
II.
After exhausting their administrative remedies, the plaintiffs filed this FTCA suit in federal district court, asserting claims against the United States for: (1) assault and battery; (2) false imprisonment/false arrest; (3) negligent
The district court then allowed discovery on the plaintiffs’ remaining claims. After discovery, the government moved for summary judgment. The district court, rejecting the government‘s jurisdictional argument that the discretionary function exception to the FTCA applied, addressed the merits of the plaintiffs’ negligent supervision claims.3 Nevertheless, addressing the merits, it granted the government summary judgment on MDCG and NLMC‘s negligent supervision claims, holding that there was no evidence Solis, Manzanares‘s supervisor, breached a duty owed the mother and daughter when he failed to monitor Manzanares. But it held that JMAE‘s negligent
To recap: the dismissed claims subject to this appeal are MDCG and NLMC‘s claims for assault and battery, false imprisonment/false arrest, negligent and intentional infliction of emotional distress, negligence, and negligent supervision.
III.
We begin with the fundamentals. The United States has sovereign immunity from any lawsuit, unless that sovereign immunity has been waived. See Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006). Here, the FTCA waives that immunity when an injury is
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, undеr circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
It is important to note, however, that there are several statutory exceptions to thе FTCA‘s waiver of sovereign immunity. The discretionary function exception is such an example. This exception excludes tort claims
A.
We will first turn our attention to the district court‘s dismissal of MDCG and NLMC‘s claims based on Manzanares‘s tortious conduct. We review a dismissal for lack of subject matter jurisdiction and a district court‘s legal conclusions regarding scope of employment de novo. See Musselwhite v. State Bar of Tex., 32 F.3d 942, 945 (5th Cir. 1994); Counts v. Guevara, 328 F.3d 212, 214 (5th Cir. 2003). We also “review[ ] de novo the legal issue of whеther the district court has discretion to resolve disputed facts dispositive of subject matter jurisdiction, applying the same standard used by the district court.” Montez v. Dep‘t of Navy, 392 F.3d 147, 149 (5th Cir. 2004).
1.
Before discussing the merits of the district court‘s scope of employment ruling, we must first turn to MDCG‘s argument that the district court applied the wrong legal standard to the scope of employment inquiry. As noted earlier, the district court addressed these claims under a 12(b)(1) motion, attacking the subject matter jurisdiction of the court over the claims. Typically, “[a] district court may dispose of a motion to dismiss for lack оf subject matter jurisdiction based ‘on (1) the complaint alone; (2) the complaint supplemented by
But, as MDCG points out, when the issue of jurisdiction is intertwined with the merits, district courts should “deal with the objection as a direct attack on the merits of the plaintiff‘s case under either Rule 12(b)(6) or Rule 56.” Montez, 392 F.3d at 150 (internal quotations omitted) (quoting Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981)). To be certain, in resolving whether a government employee was acting within the scоpe of his employment under the FTCA, we have held that a 12(b)(6) or summary judgment standard, not the Rule 12(b)(1) standard, should be applied. See id. at 150–51. Thus, to the extent the district court applied the 12(b)(1) standard, it was in error.4 Nonetheless, because the government moved for dismissal under both Rule 12(b)(1) and Rule 12(b)(6), we will proceed with our de novo review of the dismissal of MDCG and NLMC‘s claims based on Manzanares‘s conduct. See Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1348 (5th Cir. 1985).
2.
We now turn to the merits of the district court‘s ruling relating to the conduct of Officer Manzanares. “The issue of whether an employee is acting within the scope of his employment for purposes of the FTCA is governed by
At oral argument, MDCG‘s counsel conceded that Manzanares‘s sexual assault of NLMC fell outside the scope of his employment. We agree and further conclude that Manzanares‘s physical assaults of MDCG and NLMC also fell outside the scope of his employment. In Texas, an employer may be vicariously liable for intentional torts, such as assаult and false imprisonment, “when the act, although not specifically authorized by the employer, is closely connected with the employee‘s authorized duties.” G.T. Mgmt., Inc. v. Gonzalez, 106 S.W.3d 880, 884 (Tex. App.–Dallas 2003, no pet.). In other words, respondeat superior liability exists only “if the intentional tort is committed in the accomplishment of a duty entrusted to the employee, rather than because of personal animosity.” Id. Here, the only inference to be drawn from MDCG‘s allegations is that Manzanares‘s assaults served a personal, rather than work-related, purpose. Border Patrol‘s purpose is to detect and prevent the illegal entry of aliens into the United States. When Manzanares drove MDCG and NLMC away from the duty station, took them to a remote
Nor can it be said, even in a remotely tangential way, that Manzanares‘s conduct “was so connected with and immediately arising out of authorized employment tasks as to merge the task and the assaultive conduct into one indivisible tort imputed to the employer.” See Buck v. Blum, 130 S.W.3d 285, 289 (Tex. App.–Houston [14th Dist.] 2004, no pet.). To be sure, as a Border Patrol agent, Manzanares had the authority to detain suspected unauthorized aliens and to use force in effectuating an arrest. See
Nonetheless, MDCG argues that Manzanares committed torts for which the United States can be held liable prior to his departure from the duty station with MDCG, NLMC, and JMAE. Specifically, MDCG argues that Manzanares acted unlawfully, but within the scope of his employment, when he: (1) placed black restraint bands on the plaintiffs’ wrists; (2) put them in the back of his kilo unit truck; and (3) left them unattended at the duty station.
Whatever the merits of these arguments, MDCG waived them by failing to assert such claims before the district court. “[I]f a litigant desires to preserve
Nor did the brief in response to the government‘s motion to dismiss allege that the plaintiffs’ claims were based on Manzanares‘s pre-duty station conduct. Instead, it too focused on the post-duty station assaults and detention. Although it is true that the government‘s motion to dismiss conceded that Manzanares acted within the scope of his employment up until he left the duty station, the plaintiffs’ response failed to аssert that
Thus, we can only but conclude that the plaintiffs’ argument on appeal—that these pre-duty station actions were tortious conduct within Manzanares‘s scope of employment—has been waived. We therefore AFFIRM the district court‘s dismissal of MDCG and NLMC‘s claims based on Manzanares‘s conduct.5
B.
We will now turn to MDCG and NLMC‘s negligent supеrvision claims, which primarily focus on Luis Solis, Manzanares‘s immediate supervisor.
Whether a government employee‘s actions fаll within the discretionary function exception “involves two inquiries: (1) the conduct must be a matter of choice for the acting employee; and (2) the judgment [must be] of the kind that the discretionary function exception was designed to shield.” Tsolmon v. United States, 841 F.3d 378, 382 (5th Cir. 2016) (internal quotations and citations omitted). If either one of these conditions is not met, the discretionary function exception fails to protect the United States from suit. See Spotts v. United States, 613 F.3d 559, 567–68 (5th Cir. 2010).
Thus, we first ask whether Solis had a choice in how to supervise Manzanares. The discretionary function exception is inapplicable if the government employee‘s challenged conduct violated a specific directive in a federal statute, regulation, or policy. See id. at 567. We reach that result because an employee has no choice but to adhere to a mandatory rule. Id. at
The second prong asks whether Solis‘s judgment in choosing how to supervise Manzanares is the kind of judgment “that the discretionary function exception was designed to shield.” See Tsolmon, 841 F.3d at 382. Congrеss created the discretionary function exception to protect legislative and administrative decisions from judicial second-guessing. See United States v. Gaubert, 499 U.S. 315, 323 (1991). Thus, decisions that are susceptible to legislative or administrative considerations are the type of judgments that fall within the discretionary function exception‘s scope. See id. at 325.
We agree with other circuits that have held that federal employees’ supervision of subordinates involves the kind of judgment that the discretionary function exception was meant to protect. See, e.g., Gordo Gonzalez v. United States, 873 F.3d 32, 37 (1st Cir. 2017); Snyder v. United States, 590 F. App‘x 505, 509–10 (6th Cir. 2014); Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997); see also Tonelli v. United States, 60 F.3d 492, 496 (8th Cir. 1995)
In sum, MDCG points us to no directive that specifically prescribed how Solis was to oversee Manzanares, and supervisory judgments are the type of judgments that the discretionary function exception protects. The discretionary function exception to the FTCA therefore bars MDCG and NLMC‘s negligent supervision claims. It follows that the district court erred when it reached the merits of those claims, and we reverse and vacate its decision in this respect.9
IV.
We recap: Although MDCG and NLMC suffered grievous personal injuries by the criminal hands of Agent Manzanares, they cannot recover
With respect to the plaintiffs’ claims that the United States is liable for Solis‘s negligent supervision of Manzanares, we have held that we have no jurisdiction over the merits of those claims because the supervision of Manzanares was а matter within the agency‘s discretion and is excepted from the government‘s liability as a discretionary function under the FTCA. Given that the district court had no jurisdiction to decide the merits of MDCG and NLMC‘s negligent supervision claims, we VACATE the portion of its judgment that reached the merits of those claims and REMAND those claims to the district court to DISMISS for lack of jurisdiction.10 Accordingly, the judgment of the district court is:
AFFIRMED in part, VACATED in part, and REMANDED.