dissenting:
I concur in Judge Stewart’s astute dissent. If the Border Patrol agents exceeded the scope of their authority, the discretionary function exception would not apply and Monica Castro’s tort claims would not be barred by sovereign immunity. But, even if the Border Patrol agents acted within the scope of their authority and the discretionary function exception applied, Castro’s claims for false imprisonment, abuse of process, and assault would not be barred by sovereign immunity. The law enforcement proviso waives sovereign immunity for those claims.
“Generally, sovereign immunity bars suits against the Government.” Ashford v. United States, 511 F.3d 501, 504 (5th Cir.2007). The Federal Tort Claims Act waives “the Government’s sovereign immunity for torts committed by its employees in circumstances where, if the Government were a private person, the Government would be liable under state law.” Martin v. Halliburton, 601 F.3d 381, 390-91 (5th Cir.2010) (citations omitted); see 28 U.S.C. § 1346(b)(1). This general waiver of sovereign immunity is circumscribed by a list *275of exceptions in 28 U.S.C. § 2680. Ashford, 511 F.3d at 504. Pertinent to this appeal are the discretionary function and intentional tort exceptions.
Under § 2680 sovereign immunity is not waived when the claim is “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty” (the discretionary function exception) or when the claim arises “out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights” (the intentional tort exception). 28 U.S.C. § 2680(a) & (h). The law enforcement proviso in § 2680(h), however, provides an exception to these exceptions. See Nguyen v. United States, 556 F.3d 1244, 1255-56 (11th Cir.2009); Sutton v. United States, 819 F.2d 1289, 1297 (5th Cir.1987); see also § 2680(h). The proviso waives sovereign immunity “with regard to acts or omissions of investigative or law enforcement officers” for “any claim arising ... out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” § 2680(h). If the law enforcement proviso applies, sovereign immunity is waived and the discretionary function and intentional tort exceptions will not bar a plaintiffs claims for relief. Nguyen, 556 F.3d at 1256-57 (effecting “the plain meaning and clear purpose of the statutory language by concluding that sovereign immunity does not bar a claim that falls within the proviso to subsection(h), regardless of whether the acts giving rise to it involve a discretionary function”); see Sutton, 819 F.2d at 1297 (concluding that “the discretionary function exception cannot be an absolute bar which one must clear to proceed under [the] § 2680(h)” law enforcement proviso).
Monica Castro alleged the following torts against the United States: negligence, intentional infliction of emotional distress, false imprisonment, abuse of process, and assault. The district court correctly found that the law enforcement proviso applies to Castro’s claims for false imprisonment, abuse of process, and assault. Neither party contests that finding. Because the law enforcement proviso applies, sovereign immunity is waived. The court has subject matter jurisdiction over these claims and the district court’s holding to the contrary is in error.
For these reasons and for the reasons stated by Judge Stewart, I dissent.