Guadalupe Campos v. United States

Case: 16-51476 Document: 00514445529 Page: 1 Date Filed: 04/25/2018

REVISED April 25, 2018

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 16-51476 April 24, 2018
Lyle W. Cayce
GUADALUPE CHAIDEZ CAMPOS, Clerk

Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

Defendant - Appellee

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

Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Guadalupe Chaidez Campos sued the Government for false arrest and
false imprisonment under the Federal Tort Claims Act. The district court
dismissed her claims for lack of subject matter jurisdiction. We AFFIRM the
district court’s dismissal but VACATE and REMAND so that the court may
revise its final judgment to dismiss Campos’s claims without prejudice.

FACTUAL AND PROCEDURAL BACKGROUND
In December 2012, Campos entered the United States without legal
authority. United States Customs and Border Protection (“CBP”) officers
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issued her a Notice and Order of Expedited Removal. Prior to Campos’s
removal, though, she pled guilty to one count of attempted illegal reentry, in
violation of 8 U.S.C. § 1326. Campos was sentenced to 11 months of
imprisonment and three years of supervised release. While she was
incarcerated, Campos applied for and was granted U nonimmigrant status. We
will discuss the purpose and effect of that status later.
We will set out the factual events of the dispute by quoting from the first
amended complaint. We start here because of the district court’s statement
that it “has not considered the substance or value of any of the Government’s
exhibits” offered in its motion to dismiss: 1

On or about November 14, 2013, Ms. Chaidez Campos
reported to the federal probation office for the Western District of
Texas, El Paso Division, in El Paso, Texas with her one-year-old
child, Emmanuel Ochoa, and Emmanuel’s father, Jesus M. Ochoa
Perez.
At that time, Ms. Chaidez Campos was in the United States
in lawful immigration status because the Secretary of Homeland
Security, through the U.S. Citizenship and Immigration Services
(USCIS), granted her U nonimmigrant status as a victim of a
crime.
When Ms. Chaidez Campos arrived for her appointment
with her federal probation officer, she was made to wait and then
was met by a Customs and Border Protection (CBP) officer.
The CBP officer separated Ms. Chaidez Campos from her
child.
Ms. Chaidez Campos pleaded with the CBP officer, telling
the officer that Ms. Chaidez Campos was not deportable because
she had been granted U nonimmigrant status.
Ms. Chaidez Campos then presented the CBP officer with
proof of Ms. Chaidez Campos’ lawful temporary resident status in
the form of her Employment Authorization Document (EAD).

Omitted from our quotations of the factual section of the complaint are the paragraph
1

numbers and also the intermittent paragraphs that detail legal arguments.
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On its face, Ms. Chaidez Campos’ EAD contained the correct
spelling of her name, correct alien number (A#), correct birth date,
country of origin, and nonimmigrant status.
The CBP officer continued to detain Ms. Chaidez Campos
after she presented the officer the EAD showing that Ms. Chaidez
Campos was in the United States with lawful temporary residency
status.
The CBP took Ms. Chaidez Campos into custody and
transferred her to the Paso del Norte (PDN) Port-of-Entry in El
Paso Texas.
At the PDN Port-of-Entry, CBP searched Ms. Chaidez
Campos, held her in a cold room, and eventually removed her to
Mexico that same day, November 14, 2013.
Ms. Chaidez Campos attempted at least two times to return
to the United States but was denied admission. She remained
outside the United States until January 17, 2014.
What these allegations do not address is what the CBP officers did to
investigate Campos’s immigration status, what they found, and why they
decided to remove her. Though the district court in its order dismissing the
complaint stated that it did not consider the “substance or value” of the exhibits
the Government attached to its motion to dismiss, the court did indicate that
it considered “for context” that she pled guilty to attempted illegal re-entry
after being previously removed, was sentenced by this same district judge, and
served 11 months in prison.
Campos filed suit in the United States District Court for the Western
District of Texas against the United States, alleging violations of her civil
rights and requesting relief under the Federal Tort Claims Act (“FTCA”).
Campos claimed that she was falsely arrested and imprisoned by the CBP
officers because the officers detained her after she presented them with an
EAD, which in her view conclusively showed entitlement to remain in the
United States.

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The Government filed a motion to dismiss, contending that the district
court lacked subject matter jurisdiction over Campos’s FTCA claims because
the CBP officers’ actions fell within the “discretionary function exception” to
the FTCA’s waiver of sovereign immunity. The district court agreed and
dismissed. Campos timely appealed.

DISCUSSION
We are reviewing a district court’s dismissal of a suit due to the absence
of subject matter jurisdiction. See FED R. CIV. P. 12(b)(1). Our review of such
a dismissal is de novo, applying the same standard as the district court.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The party
asserting jurisdiction bears the burden of proof. Id. In resolving a motion
under Rule 12(b)(1), the district court
has the power to dismiss for lack of subject matter jurisdiction on
any one of three separate bases: (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.
St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d
307, 315 (5th Cir. 2009) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th
Cir. 1981)).
The district court did not resolve any disputed facts. As to undisputed
facts, the Government attached to its motion to dismiss affidavits of two CBP
officers involved with the investigation on the day of Campos’s removal and
three documents related to Campos’s 2013 conviction that sent her to prison
for 11 months and also led to an order for her removal that would be enforced
at the end of her incarceration. Some and perhaps most of the information in
those exhibits would have been undisputed. As mentioned earlier, though, the
court declared that it had not considered the “substance” of the exhibits.

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Instead, it considered for contextual reasons only the evidence of Campos’s
prior conviction, about which the complaint was completely silent.
We conclude that the district court, by its reference to using the
conviction information for context, necessarily meant that it considered the
undisputed record of Campos’s conviction and its effects. This included the
order for removal that gave the CBP officers a basis for a reasonable belief that
she was impermissibly in the country and was subject to being removed. 2 We
reach that conclusion due to the district court’s explaining in its order
dismissing the case that a CBP officer has statutory authority to arrest without
a warrant when “the agent has ‘reason to believe’ that the person is in the
United States in violation of any immigration laws or regulations and is ‘likely
to escape before a warrant can be obtained for [her] arrest.’” See 8 U.S.C.
§ 1357(a)(2). When the court then held that these CBP officers had used this
authority, there must have been information that provided a reason to believe,
even if incorrectly, that Campos was present improperly. CBP officers do not
have discretion to conduct an investigation, find nothing, and deport anyway.
When a district court does not detail the factual determinations it made
to support its ruling, “an appellate court may determine for itself, on the basis
of the record and any statements made by the district court . . . what, if any,
implicit factual findings it made.” Williamson, 645 F.2d at 414. As will become
clear, the only implied factual findings in the district court’s order deal with
Campos’s prior conviction that led to an order that she be removed at the end
of her prison term. Our analysis of the district court’s ruling does not reveal
any reliance on the affidavits of the CBP officers.

2 Campos filed a motion to strike some but not all of the exhibits. One exhibit that
she urged be used by the district court was the removal order itself, saying it would “assist
the [c]ourt in determining whether it ha[d] jurisdiction.” Thus, both as a matter of seeking
the contextual information and because Campos sought the order’s consideration, the 2012
order for Campos’s removal is properly considered on appeal.
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Thus, this dismissal was based on the complaint plus the undisputed
facts of Campos’s criminal history and of the removal order. “In such a
circumstance, our review is limited to determining whether the district court’s
application of the law is correct and whether the facts are indeed undisputed.”
Ynclan v. Dep’t of Air Force, 943 F.2d 1388, 1390 (5th Cir. 1991).
Campos presents three arguments. First, she argues the district court
erred in concluding that her claims fell within the discretionary function
exception because the law enforcement proviso controls over the exception.
Second, Campos asserts the district court erred in applying the discretionary
function exception because it is inapplicable here. Finally, Campos contends
the district court erred in not applying the law enforcement proviso to her
FTCA claims.
We first discuss the pertinent statutory provisions and then address each
of Campos’s arguments.

I. The Federal Tort Claims Act
“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.” Tsolmon v. United States, 841 F.3d
378, 382 (5th Cir. 2016).
The FTCA waives the Government’s sovereign immunity and permits
suit against it for certain tort claims “in the same manner and to the same
extent as a private individual under like circumstances.” 28 U.S.C. § 2674.
The Act also provides federal district courts with exclusive jurisdiction over
monetary damage claims against the Government for “personal
injury . . . 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.”
Id. § 1346(b)(1).
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The Government’s liability for such claims is not absolute. Section 2680
of the FTCA outlines exceptions that block the FTCA’s waiver of the
Government’s sovereign immunity. If an exception applies, a plaintiff’s FTCA
claim is barred, and a federal court is without subject matter jurisdiction over
the claim. See, e.g., Castro v. United States, 608 F.3d 266, 268 (5th Cir. 2010)
(en banc).
Two subsections of Section 2680 are relevant. One is Section 2680(a),
commonly referred to as the “discretionary function exception,” which excepts
any claim that is based upon a Government employee’s performance of a
“discretionary function or duty . . . whether or not the discretion involved be
abused.” The other is Section 2680(h). It excepts from the waiver of immunity
certain tort claims, including false arrest and false imprisonment, committed
by a Government investigative or law enforcement officer. Section 2680(h),
though, does allow suits based on “[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). This second quoted portion of Section 2680(h) is often labeled
the “law enforcement proviso.” See Tsolmon, 841 F.3d at 381.

II. Relationship between the exception and the proviso
Campos contends the district court erred in considering the discretionary
function exception. Campos argues the district court’s consideration of the
exception was error because “properly alleged claims under the law
enforcement proviso always trump the discretionary function exception and
thus, there is no need to determine whether the discretionary function
[exception] shields the government from liability.”
Campos’s argument is foreclosed by this court’s precedent. Neither the
discretionary function exception nor the law enforcement proviso “exist[s]
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independently of the other nor does one predominate over the other.” Sutton
v. United States, 819 F.2d 1289, 1295 (5th Cir. 1987). “[I]t is both impossible
and certainly inappropriate for us to declare categorically — or try to state in
a principled way — the circumstances in which either the discretionary
function exception or the law enforcement proviso governs to the exclusion of
the other.” Id. at 1298.
Thus, we turn to the circumstances here to resolve how the two parts of
Section 2680 function in this case.

III. Applicability of the discretionary function exception
We use a two-part test to determine whether government officials’
actions fall within the discretionary function exception. See Tsolmon, 841 F.3d
at 382. The plaintiff has the burden of establishing that the test is not
satisfied. See id. First, the relevant employees’ conduct must be a “matter of
choice.” Id. (quoting Spotts v. United States, 613 F.3d 559, 567 (5th Cir. 2010)).
Second, the choice or “judgment must be of the kind that the discretionary
function exception was designed to shield.” Id. (alterations and citation
omitted).
The district court determined that the discretionary function exception
applied. Campos has challenged the district court’s conclusion only as to
whether the CBP officers had a choice regarding their actions. Thus, because
it is uncontested, we accept for purposes of this appeal that if the conduct was
a matter of choice, it was the kind of choice that the discretionary function
exception was designed to shield. See, e.g., United States v. Elashyi, 554 F.3d
480, 494 n.6 (5th Cir. 2008).
Government officials do not have relevant discretion when “a ‘federal
statute, regulation, or policy specifically prescribes a course of action for an
employee to follow,’ because ‘the employee has no rightful option but to adhere
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to the directive.’” United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting
Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988)). “In other
words, the discretionary function exception does not apply if the challenged
actions in fact violated a federal statute, regulation, or policy.” Spotts, 613
F.3d at 567.
Campos argues that the exception does not apply because the
Government “points to no statute or regulation to support its position that
[Campos’s] EAD is not proof of immigration status.” This argument reverses
the proper legal inquiry. Campos, not the Government, must direct us to
authority that the officer was required to allow Campos to remain upon being
presented with an EAD under the circumstances of this case. See Tsolmon,
841 F.3d at 382.
Campos’s basic point is that the EAD is unequivocal proof of the right to
remain in the United States. She argues that clarity comes from federal
regulations, a federal statute, and the Fourth Amendment.
In deciding what was clear, we start with the regulations. Campos’s
counsel was asked at oral argument to identify the regulation that provided for
an EAD to operate as proof of a person’s lawful immigration status and
removed an officer’s discretion to detain an individual who presented an EAD. 3
Campos’s counsel cited 8 C.F.R. § 264.1(b). That regulation is entitled
“Registration and fingerprinting,” lists forms, and states that these “forms
constitute evidence of registration.” § 264.1(b). The form designation for an
EAD is I-766. Id. Campos’s EAD is in the record. It has “Employment
Authorization Card” printed across the top, contains her photograph, and
resembles to some extent a driver’s license. In bold letters on the bottom is the

3 http://www.ca5.uscourts.gov/OralArgRecordings/16/16-51476_12-6-2017.mp3 at
1:43–1:56; 3:40–4:10; 5:10–5:25; 6:07–6:60; 7:25–7:34; 8:37–8:50.
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phrase “Not Valid for Reentry to the U.S.” We examine what “registration”
means in order to understand what an I-766 evidences.
Aliens are required to register with the Government. 8 U.S.C. § 1302.
Once an alien is registered, the Government issues to the alien “a certificate of
alien registration or an alien registration receipt card.” Id. § 1304(d). An
alien’s failure to maintain possession of the certificate of alien registration or
alien registration receipt card is punishable as a misdemeanor with a fine not
to exceed $100, imprisonment of not more than thirty days, or both. Id.
§ 1304(e). When the I-766 form of an EAD was approved by a final rule
promulgated in 1996, it was described as a centrally-issued, more secure proof
of employment authorization that would replace paper documents. 61 Fed.
Reg. 46,534, 46,536.
It appears that Campos’s EAD, whose commencement date is October 1,
2013, was issued because Campos, while still in prison, was granted a U-1
nonimmigrant visa. Such a visa is issued if the Secretary of the Department
of Homeland Security determines an alien has suffered substantial physical or
mental abuse as a victim of criminal activity. See 8 U.S.C. § 1101(a)(15)(U).
A regulation entitled “Alien Victims of Certain Qualifying Criminal
Activity” provides the procedure, the specifics of eligibility, and the benefits
that arise from a U-1 nonimmigrant visa. 8 C.F.R. § 214.14. One benefit is
automatic entitlement to work: any “alien granted U-1 nonimmigrant status is
employment authorized incident to status,” and an EAD is issued
automatically. Id. § 214.14(c)(7). That regulation follows from a statute on
which Campos relies providing that those who have U nonimmigrant status
must be granted authorization to work. 8 U.S.C. § 1184(p)(3).
The information on the EAD includes a section entitled “Category.” On
Campos’s card is printed “A19.” According to Campos, that refers to the classes
of aliens authorized to accept employment listed in Section 274a.12 of the
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regulations. Subpart (a)(19) of that section is for an “alien in U-1
nonimmigrant status, pursuant to 8 CFR 214.14, for the period of time in that
status, as evidenced by an employment authorization document issued by
USCIS to the alien.” 8 C.F.R. § 274a.12(a)(19). We see the logic of Campos’s
representation, but we have not been directed to any regulation that explains
the “A19” on Campos’s card.
Eligibility for a U-1 visa can exist even for someone like Campos who
was subject to a final order of removal. Id. § 214.14(c)(1)(ii). Importantly to
Campos’s arguments here, a regulation provides that any “order of exclusion,
deportation, or removal issued by the Secretary . . . [is] deemed canceled by
operation of law as of the date of USCIS’ approval of Form I-918,” which is the
form on which an application for a U-1 visa is made. Id. § 214.14(c)(5)(i).
Our question, however, is not whether there was any correlation between
“A19” in the “Category” section of the EAD and a statute indicating an alien’s
particular status. Instead, we ask whether there was any statute or regulation
that “specifically prescribes a course of action” that removed all discretion from
CBP officers upon being presented with an EAD card because “officers are
unprotected [from liability] only when they use their discretion to act in
violation of a statute or policy that specifically directs them to act otherwise.”
Tsolmon, 841 F.3d at 382, 384.
Before seeking to pull all this together, we examine the statute Campos
has cited, which she says prohibits her arrest because of the EAD:
Any officer or employee of the Service authorized under
regulations prescribed by the Attorney General shall have power
without warrant –
(1) to interrogate any alien or person believed to be an alien
as to his right to be or to remain in the United States;
(2) to arrest any alien who in his presence or view is entering
or attempting to enter the United States in violation of any law or
regulation made in pursuance of law regulating the admission,

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exclusion, expulsion, or removal of aliens, or to arrest any alien in
the United States, if he has reason to believe that the alien so
arrested is in the United States in violation of any such law or
regulation and is likely to escape before a warrant can be obtained
for his arrest, but the alien arrested shall be taken without
unnecessary delay for examination before an officer of the Service
having authority to examine aliens as to their right to enter or
remain in the United States[.]
8 U.S.C. § 1357(a)(1)–(2). The Government relies on the statutory right to
arrest when the officer has reason to believe the alien is improperly present
and is likely to escape before a warrant can be obtained. Id. § 1357(a)(2).
Our analysis of this statute starts with a recent opinion applying the
discretionary function exception to the decision that CBP officers made to
detain an alien. Tsolmon, 841 F.3d at 384. There, the alien did not have
possession of any documentation showing his lawful status. Id. at 380.
Officers searched for some time in computer records to find what the alien said
was his H-1B nonimmigrant worker visa; they were unsuccessful. Id. at 380–
81. Without any record in his possession or that the CBP officers could locate,
Tsolmon was detained for a day and a half. Id. Finally, an officer, who may
have been more proficient in computer searches but who still needed several
hours of work, found the evidence of Tsolmon’s H-1B. Id. at 381. The district
court held that the discretionary function exception applied to the claim based
on the original officer’s investigation into Tsolmon’s immigration status. Id. at
383. We held that the thoroughness of an investigation is a central decision
for law enforcement officers to make, one that is inherently discretionary. Id.
Like Campos, Tsolmon relied on Section 1357(a)(2) to contend that the
officers’ conduct did not fall within the discretionary function exception. Id. at
382–83. We agreed with Tsolmon’s broad characterization of the exception as
not affording protection to officers who break the law or exceed their authority.
Id. at 384. We explained, though, that the exception leaves officers

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unprotected only when a statute or policy specifically directs them to act in a
particular manner but the officers use their discretion to act in violation of that
statute or policy. Id. We rejected Tsolmon’s argument that the officers
exceeded their authority under Section 1357(a)(2) when they detained him
because “Section 1357(a)(2), with its judgment-laden ‘reasonable belief’
standard,” is not a statute that gives specific direction to officers. Id.
The investigation in Tsolmon failed to uncover the needed
documentation to show the alien’s status. Id. at 380–81. According to Campos,
that was not the problem here, as she had with her the documentation she
needed. Campos argues that her removal was due to a failure by the
investigating CBP officer to understand the legal effect of what was known
even before any factual investigation was conducted. The CBP officer who
initially met with Campos was Luis Oliva, who had been called by a probation
officer after Campos presented herself at the probation office.
We perceive two ways to view where we are. One is to say that the case
presents the issue of whether the failure to know the legal effect of documents
that were in hand is in essence a failure to investigate the legal points more
thoroughly. If so, does the discretionary function exception apply just as it does
to a truncated investigation that did not uncover relevant facts? We do not
rule from that perspective and leave that issue open. Another perspective is
to say that regardless of what the EAD is best understood as meaning, no
regulation or statute existed to indicate that meaning in such a way as to
remove the CBP officer’s discretion. We proceed down the path we see from
that viewpoint.
The discretionary function exception would fail to protect the CPB
officers if Section 1357(a)(2) specifically directed them to act in a particular
manner but they used their discretion to act in violation of the statute.
Tsolmon, 841 F.3d at 384. Campos contends that the officers violated Section
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1357(a)(2) when they detained her because she presented them with a valid
EAD that unequivocally established her lawful presence and because there
was no factual basis to support that she was likely to escape, as she was present
at the probation office on her own volition and was accompanied by her
daughter and her daughter’s father.
Campos has not presented us with a regulation or other authority that
indicates that the “Category” section of an EAD reflects which subparagraph
of 8 C.F.R. § 274a.12 is the source of the employment authorization. Even if
such a regulation or directive in some other form exists, though, there was no
regulation or other guidance to Oliva that “specifically prescribe[d] a course of
action” when he was presented with an EAD, such that he had no discretion to
conduct further investigation. See Gaubert, 499 U.S. at 322. Any shortcomings
in the search for evidence of a visa fall in the category of investigatory
discretion identified in Tsolmon.
Campos has also not shown how her voluntary presence at the probation
office with her family precluded the CBP officers from having reason to believe
that she was likely to escape. Before Oliva went to the probation office to meet
with Campos, he reviewed documents that were associated with Campos’s
case, including the 2012 order of expedited removal, and was led to believe that
Campos should have been removed from the country when she was released
from prison. That Campos was, from Oliva’s perspective, again impermissibly
present in the United States would plausibly have given Oliva a reasonable
belief that Campos would disappear before a warrant could be obtained.
Moreover, the 2012 order of expedited removal issued to Campos by an
immigration officer provided for her expedited removal under Section 235(b)(1)
of the Immigration and Nationality Act. 8 U.S.C. § 1225(b)(1). As that statute
details, removal is without the benefit of a hearing or further review absent a
claim for asylum (no such claim made here). Id. Once Campos was in the
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custody of these CBP officers, and after they failed to find a justification that
they understood had cancelled that order, they enforced the removal order they
discovered by walking her across the nearby bridge into Mexico. Whether that
was the correct action to take or not, we do not see that the issue of probability
of escape has any relevance here.
As discussed before, the discretionary function exception applies if the
relevant decision was a matter of choice and was “of the kind that the
discretionary function exception was designed to shield.” Berkovitz, 486 U.S.
at 536. We conclude that what Campos insists was certain from the EAD and
removed all discretion was, in reality, sufficiently uncertain as to leave
discretion in the hands of the CBP officers. The discretionary function
exception exists to leave sovereign immunity in place unless the official had
clear guidance on what to do when presented with what is argued to be the
relevant evidence.
We conclude that the discretionary function exception applied.
Campos also argues that her Fourth Amendment rights were violated.
“This court has not yet determined whether a constitutional violation, as
opposed to a statutory, regulatory, or policy violation, precludes the application
of the discretionary function exception.” Spotts, 613 F.3d at 569. We need not
decide the issue here because we find the question not to be sufficiently raised.
Campos cursorily mentioned the Fourth Amendment in her response to the
Government’s motion to dismiss. That passing reference did not address
whether a Fourth Amendment violation barred the application of the
discretionary function exception.
The inadequate presentation of the issue to the district court means any
argument of error by the district court on the issue is waived on appeal. Id.

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IV. The law enforcement proviso
We have already discussed Campos’s argument that the “law
enforcement proviso” of Section 2680(h) should control, and her suit for false
arrest and false imprisonment should proceed under its terms. We noted that
in this circuit, the proviso and the discretionary function exception each have
to be considered. Now that we have held that the discretionary function
exception is applicable, we need to determine if the proviso is as well.
Before reaching Campos’s argument, we remind that the proviso is part
of a subparagraph that first identifies an intentional tort exception. The
intentional torts there identified are statutorily excepted from the FTCA
unless the proviso applies. The Government, though, has not relied on the
exception in Section 2680(h). In its motion in district court, the Government
sought dismissal based only on the discretionary function exception. The
motion mentioned the law enforcement proviso, but it did not seek dismissal
under the intentional tort exception. The Government did at least explain that
the latter part of the FTCA retains sovereign immunity for claims involving
false arrest and false imprisonment.
The only claims Campos identifies in her complaint are that she “was
falsely arrested and falsely imprisoned by federal officers without [her] consent
and without authority of law.” The intentional tort exception states that
sovereign immunity is not waived for “[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). Thus, under the FTCA as initially enacted, those
intentional torts were not actionable against the United States. Sutton, 819
F.2d at 1294. After troubling incidents of perceived misconduct by law
enforcement officers, in 1974 Congress limited the exception by allowing suits
that satisfy this proviso:
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No. 16-51476
That, with regard to acts or omissions of investigative or law
enforcement officers of the United States Government, the
provisions of this chapter and section 1346(b) of this title shall apply
to any claim arising, on or after the date of the enactment of this
proviso, out of assault, battery, false imprisonment, false arrest,
abuse of process, or malicious prosecution. For the purpose of this
subsection, “investigative or law enforcement officer” means any
officer of the United States who is empowered by law to execute
searches, to seize evidence, or to make arrests for violations of
Federal law.
28 U.S.C. § 2680(h); see also Sutton, 819 F.2d at 1295–97.
We start with what this Circuit has already held about the proviso, then
address an important Supreme Court precedent that postdates our holdings
and causes us to modify some of what we have previously held.
Despite the absolute nature of the language — seemingly unwaiving
sovereign immunity for much of what was earlier waived in the same
subsection — since 1987 this court has applied the proviso with considerable
caution. Cf. Sutton, 819 F.2d at 1298. As we already described, Sutton treated
the discretionary function exception and the law enforcement proviso as
needing to coexist, as neither “exist[s] independently of the other nor does one
predominate over the other.” Id. at 1295. In that case, we focused on two
events that led to Congress’s adoption of the proviso: “The Senate Committee
report states that the proviso was added to the FTCA in response to ‘abusive,
illegal, and unconstitutional “no-knock” raids’ engaged in by federal narcotics
agents in the Collinsville raids and in Bivens [v. Six Unknown Named Agents
of the Fed. Bureau of Investigation, 403 U.S. 388 (1971).]” Id.
One way to interpret our holding is that the law enforcement proviso,
allowing for suits to proceed, only applies in situations in which the kinds of
egregious, intentional misconduct occurs that was present in the events that
prompted Congress to adopt the proviso:

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No. 16-51476
The law enforcement proviso waives sovereign immunity and
makes the United States responsible to citizens who are injured by
law enforcement officers in situations like the Collinsville raids
when relief was otherwise unavailable.
Id. at 1298. 4 Besides that statement, though, Sutton also referred to the
“categorical and unqualified” language of the proviso, such that there is
government liability “whenever its agents commit constitutional torts and in
any case in which a Federal agent commits acts which under accepted tort
principles constitute one of the intentional torts enumerated in the proviso.”
Id. at 1296 (emphasis removed).
A later interpretation by this court of the proviso was in an opinion cited
by the district court. There a panel stated: “In harmonizing the two provisions
in this case, [i.e., the discretionary function exception and the law enforcement
proviso,] it is significant that the [Immigration and Naturalization Service]
officers did not commit a constitutional violation nor did they engage in any
conduct that could be described as in bad faith.” Nguyen v. United States, No.
02-10013, 2003 WL 1922969, at *2 (5th Cir. Mar. 31, 2003).
Here, the district court relied on Sutton and Nguyen in concluding that
“Sutton’s unmoored fact-intensive inquiry is anchored by Nguyen’s bad-faith
framework.” The district court applied its understanding of our caselaw to
conclude that the discretionary function exception applied, not the law
enforcement proviso.

4 Courts have continued to apply the intentional tort exception that precedes the
proviso. See, e.g., Snow-Erlin v. United States, 470 F.3d 804, 808–09 (9th Cir. 2006) (holding
claim that the plaintiff-decedent’s release date was negligently calculated, leaving him in
prison almost a year beyond when he should have been released, was barred by Section
2680(h)); see also Gaudet v. United States, 517 F.2d 1034, 1035 (5th Cir. 1975) (concluding
that the court’s task is to determine whether the pleadings are clear that “the substance of
[the] complaint is precisely the kind of tort enumerated in § 2680(h),” such as false
imprisonment or arrest).
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No. 16-51476
What neither the district court nor the parties’ briefing discussed is a
United States Supreme Court decision handed down after both Sutton and
Nguyen. See Millbrook v. United States, 569 U.S. 50 (2013). We conclude that
it controls our interpretation of the law enforcement proviso, meaning we can
leave some of what Sutton meant unresolved. We now know other circuits’
interpretive limits on the proviso were invalid. Id. at 55–57. The Court held
there to be no implicit limits on the statutory language; the proviso “extends
to acts or omissions of law enforcement officers that arise within the scope of
their employment, regardless of whether the officers are engaged in
investigative or law enforcement activity, or are executing a search, seizing
evidence, or making an arrest.” Id. at 57. The criteria for application of the
proviso are only that the defendant have the right status, namely, that of an
“investigative or law enforcement officer,” and that acts or omissions of such
an officer caused one of the six intentional torts to be committed. Id. at 54–55.
Though neither party cited Millbrook in the district court or here, it is a
significant clarification of the law that should not be ignored. We apply
Millbrook’s refusal to allow limitations to be placed on the law enforcement
proviso to the law of this Circuit. That law, unaffected on this point, is that
both the proviso and the discretionary function exception must be read
together. Sutton, 819 F.2d at 1295. In other words, one does not moot the
other when both cover a fact pattern. Id. at 1297.
The best way to blend the “on the one hand,” with the “on the other”
nature of these dueling provisions, is first to determine if the law enforcement
proviso applies. It does. The CBP officers were law enforcement officers whose
acts or omissions are claimed to have caused one of the relevant six torts.
Having made that decision, we turn to the discretionary function exception.
We already analyzed that exception and held the officers’ decisions to have
been matters of choice that traditionally would be shielded from liability. What
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No. 16-51476
would not be shielded from liability is defined by the Sutton court’s focus on
Collinsville and Bivens situations. We leave that much of Sutton undisturbed
because under this Circuit’s rule of orderliness, a prior opinion remains
binding except to the extent of the Supreme Court’s change in the law. Jacobs
v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
It is enough to hold, and we do, that the conduct alleged here in no
respect sinks to the necessary level. At worst, what occurred were failures to
understand the import of various immigration documents and regulations.
Reading the discretionary function exception in conjunction with the law
enforcement proviso, we conclude the district court was correct in holding there
is no subject matter jurisdiction.
The district court did err, though, in dismissing Campos’s FTCA claims
with prejudice. Though Campos has not raised this issue, we agree with a prior
opinion from this court that such an error cannot be waived. Cox, Cox, Filo,
Camel & Wilson, L.L.C. v. Sasol N. Am., Inc., 544 F. App’x 455, 456 (5th Cir.
2013). We agree with our prior cases that have precluded district courts from
dismissing plaintiffs’ claims with prejudice when the basis for the dismissal is
lack of subject matter jurisdiction under Rule 12(b)(1). See, e.g., Nevarez Law
Firm, P.C. v. Dona Ana Title Co., 708 F. App’x 186, 187 (5th Cir. 2018). The
district court was without jurisdiction over Campos’s FTCA claims; thus, it was
without authority to dismiss the claims with prejudice because “[a] dismissal
with prejudice is a final judgment on the merits” of a case. Brooks v. Raymond
Dugat Co. L C, 336 F.3d 360, 362 (5th Cir. 2003).
We AFFIRM as to the dismissal of the complaint but VACATE and
REMAND so that the district court may enter a revised order and final
judgment that dismisses the suit without prejudice.

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