concurring in the judgment in part and dissenting in part:
I agree with the dissents of Judges DeMoss and Stewart concerning the scope of the federal government’s waiver of sovereign immunity under the Federal Tort Claims Act, the law enforcement proviso, and the discretionary function exception. However, I partially disagree with them regarding the legal significance of the underlying facts in this case. Therefore, I concur in the result as to the majority’s affirmance of the dismissal of most of the plaintiffs’ claims, but I dissent as to the claims for abuse of process and assault, which should be remanded to the district court for further proceedings.
*269First, I agree with Judge DeMoss’s dissent that the federal courts have subject matter jurisdiction over the plaintiffs’ claims for abuse of process, assault, and false imprisonment, because the federal government has waived its sovereign immunity as to those claims through the FTCA’s law enforcement proviso, 28 U.S.C. § 2680(h).1 See Nguyen v. United States, 556 F.3d 1244, 1255-56 (11th Cir.2009). The district court therefore erred by dismissing these claims under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.
It is not clear to me whether the plaintiffs’ claims for abuse of process and assault can survive a Rule 12(b)(6) motion to dismiss. The district court did not decide whether these claims are viable because it erroneously dismissed the claims for lack of subject matter jurisdiction under Rule 12(b)(1). I would remand those claims to be resolved in the first instance by the district court.
However, with respect to false imprisonment, the plaintiffs have clearly failed to state a claim on which relief can be granted. The elements of false imprisonment under Texas law are “(1) willful detention; (2) without consent; and (3) without authority of law.” Bossin v. Towber, 894 S.W.2d 25, 29 (Tex.App.1994) (citing Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex.1985)). When Omar Gallardo, the father, was arrested, R.M.G., the baby girl, was with him. Gallardo wanted to keep his daughter with him while he was being detained (for less than a day) and deported, and the Border Patrol acquiesced. R.M.G. was a baby and therefore lacked the ability to consent independently, but her father could and did consent on her behalf to her remaining with him. Because R.M.G.’s presence in the Border Patrol station was not without consent, it did not amount to false imprisonment. The false imprisonment claim should therefore be dismissed for failure to state a claim on which relief can be granted, under Rule 12(b)(6).
As to the plaintiffs’ remaining claims, which do not fall within the law enforcement proviso, I agree with the legal framework set forth in Part II of Judge Stewart’s dissent. As Judge Stewart explains, the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a),2 does not encompass actions by government agents that 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); see also Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir.1987) (“[W]e have not hesitated to conclude that [an] action does not fall within the discretionary function [exception] of § 2680(a) when governmental agents exceed the scope of their authority as designated by statute or the Constitution.”). I therefore agree with Judge Stewart that the district court erred in its reasoning by failing to consider whether the Border Patrol agents’ actions violated any statutory or *270constitutional requirements before it decided that the plaintiffs’ claims were barred by the discretionary function exception.
Nevertheless, I believe that the plaintiffs’ claims — except for those covered by the law enforcement proviso, as discussed above — must be dismissed for lack of subject matter jurisdiction because they are barred by the FTCA’s discretionary function exception. The facts as alleged by the plaintiffs do not disclose any constitutional or statutory violations that would make the discretionary function exception inapplicable. Again, Gallardo had his daughter, R.M.G., with him when he was arrested. By permitting Gallardo to keep R.M.G. with him, the Border Patrol agents did not improperly make a custody determination; rather, they left the status quo in place and refrained from making a custody determination, in that they declined to take R.M.G. away from Gallardo against his will. The Border Patrol agents cannot be meaningfully said to have “detained’.’ or “deported” R.M.G., because it was Gallardo, and not the Border Patrol, who decided that the baby should go with him to Mexico. Monica Castro, R.M.G.’s mother, disagreed with Gallardo’s decision and wanted the Border Patrol to transfer the baby to her, but she lacked a court order or any other source of legal authority requiring the Border Patrol to take such action. The Border Patrol, by accepting Gallardo’s decision to keep R.M.G. with him, did not violate any constitutional or statutory requirement that the plaintiffs have identified.
Because there was no constitutional or statutory violation, the Border Patrol’s alleged actions fall within the FTCA’s discretionary function exception, and the federal courts therefore lack jurisdiction over the plaintiffs’ claims, except for those that are covered by the law enforcement proviso as discussed above. Accordingly, I concur in the judgment except as to the claims for abuse of process and assault. I would remand those two claims to the district court to allow it to decide in the first instance whether they should be dismissed under Rule 12(b)(6).
. "[W]ith regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of [the FTCA] 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.” 28 U.S.C. § 2680(h).
. Section 2680(a) excludes from the FTCA "[a]ny claim ... 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.” Such claims are excluded from the FTCA’s waiver of sovereign immunity, and the federal courts therefore lack subject matter jurisdiction over them.