versus united states of america proceed when you're ready that afternoon in one nine hundred seventy four congress and acted a careful waiver of federal sovereign immunity for a limited number of intentional torts committed by law enforcement officers this provision known as law enforcement purposes affords individuals the right to sue for intentional wrong wrongful acts such as the false arrest in this case miss chinese compost had and showed proof of lawful status but she was arrested and deported by federal officers this amounted to false arrest for for which congress intended to have immunity the district court i guess the importan question and what you just said is did she show proof of lawful status i work and a deed is not proof of lawful status so there's this d operates as proof of lawful status as opposed to proof of work place eligibility if your honor the most direct cite is eight c f r section so that regulation provides broad's a list of documents that establish proof of lawful presence in under that list of about fifteen or twenty documents is the id on that list is described as i we have number of cases that i was able to readily find where people are in the legal status and they are deportable or removable and i guess i should say and they have valid visa at the time their removal and we can ask them an oral argument sometime this is sort of weird in the person usually says yeah it's kind of weird in immigration from time to things get crosstalk well in this case we don't have any of those circumstances that you might find other cases we have a valid violation of a statute which is what you have to show for that that that they violated statutory law intentionally violated stacia statute and for your f t c a claim that's separate and apart from discretionary function it's just to state your claim what statute have they violated what they revived if they violated the texas the texas tort for false arrest because the officer arrested miss chinese compost without any authorization this is well he has authorization if he reasonably believes someone he has statutory authorization if you reasonably believes so what says you know you do not have statutory authorization anymore if someone gives you an i d that eighty says oh you no longer have statutory authorization yes your honor the federal law immigration statutes and the regulations they specify the legal the legal imports of you visa status and they specified that any id is proof of the status they specify that the individual who has you  shows their valid proof of the status is lawfully present it is not subject to any discretion by anybody's foot for removal this is a simple case where the officer simply ignored the e when he had no discretion to do so and he had no no authority to enact an arrest i guess i'm still asking for what is the authority that says he has no discretion once someone gives that the e u ideas of you know i would say get out of jail because that's not i'm not trying to make light of this but that it's somehow everything stops and you in the in the officer loses his discretion under what statute or regular or even regulation says that  c eleven eighty four p three b which this which states that d h s shall provide the u v set non immigrants with employment authorization during the period of this lawful temporary residence i refer you back to that first regulation i gave you which is directly on point in establishing steps and second the work authorization regulations further establish that that you you  that you get the worker authorization because you have the other thing that's one of the ways you can get an id oh and furthermore the regulations specify that the e m t itself has proof of  to the employer authorization and the authorization shows a lawful entitlement through the u v system that is proof of lawful stat i don't believe the regulation says that that to law enforcement trying to deport you or to at the border that you can just show your the ok so that's what you talked about and it's magic language you said fifteen or twenty different examples of documentation that's the regulation that has that and one of them's in the form number this is the equivalent of the  court determined that it was way didn't it the district court did and that is that is the error that the district court made and the reason we haven't weighed the fourth amendment argument is that we have author didn't have authorization pursuant to the statutes and because there is no probable cause to fit within the fourth amendments to fit within the fourth amendment context and he briefed the district court erred in its waiver claim these claims must be premised on state law and they cannot be premised directly on a constitutional violation so requiring us to have made a constitutional violation would take us outside of the framework of the f t c in the first place  and so instead we have alexis at an intentional tort under texas law false or arrest and false imprisonment and whatever intentional tort is properly alleged we look directly to the law enforcement provisions and we don't look to discretionary function exception and that's what congress intended we should not even be considering the discretionary function in this case we've alleged intentional torte within the law enforcement previous so if the discretionary function if we consider weeks there's pressure a function the officer's actions do not fall within that just within that exception because the officer had no discretion to act as he did very specific statutes and regulations and the fourth amendment prohibits him from making this arrest when there is absolutely no probable cause and there is absolutely no indication that our our initial mistake is combo's was here on lawful the officer simply ignored her lawful status and still have a they have a roving right as long as they reasonably believe they don't have to have a warrant with probable cause and that sort of thing isn't that right no your honor not not in this case but in normally and one of these agents does not have to have probable cause i mean does not have to have a warrant or anything present a probable cause they just have to have a reasonable belief convicted of illegal entry right he knows that at the time that she shows up and he knows that she has an ear a d card that's what she know he knows is wrong and he also knows that it's a valid court and he knows that by operation of federal law  visa status as evidenced by this card cancels any prior orders over a move he could not have given effect based on very specific law and regulation that takes away any discretion he has to give effect to this move what do you do with our case and when in the circuit but two when considering essentially allegations of negligence where the plaintiff and when alleged that that law enforcement officers didn't conduct the correct s mr compas presented her and the officer disregarded it that was a wrongful act within within this framework of an intentional towards and that would put the framework back within the law enforcement purpose i guess i'm still stuck on that we have a number of cases where people with valid id s are subject to arrested and or arrested because they're out of compliance for whatever reason with there's actual status even though they the facts of this case we we don't have any question about the validity of the status of the officer just simply chose to ignore it why don't we have this question about the validity of the status because i thought he couldn't find it in the computer because congress intended to waive unity for for these for these seizures without authority without probable cause just like you would see in the conduit illinois braids that under a light that was the basis for that law for some purpose of being enact mentioned several times to sixty four some so point and i think you have a list in that regulation of documents that are considered registration forms and one of them is the ag how should we interpret that lawful status because the idea was issued in the status was revoked what about on the computer that is apparently the facts or the date on the a d a d was later than anything found on the computer when he make of that as far as it may use that word anything of a contrary nature in the computer you are i guess the way i would put it is officers have discretion to investigate and a person's status in a discretionary function applies to that investigation now we can assume for purposes of this appeal that the investigation was negligent or even an abuse of discretion but that does not take it with it and we don't concede that but that does not take it beyond the discretionary function exception so i think you are is question is saying well should they have gone further or should they given i had a later date should they have maybe looked into the issue with a more cautious officer had done more that's not the standard that is not the standard right you know even a negligent officer an officer abuses his or her discretion  that does not mean that such a function exception does not apply and what what is required is a statute saying you must act in a particular way when presented with a piece of evidence and here i would also emphasize that there was ample evidence in the record that that the plaintiff was here lawfully she had a she was subject to a notice of a movable expedited removal that was less than a year old she had been and that was issued because she had misrepresented that she was a us citizen when she attempted to enter your earlier and he had all that information misrepresented in the past her citizenship or lawfulness to be in the country and that she's actually been convicted of that and then subsequently pled guilty to being and so when he she shows some form it's not out of unreasonable to be suspicious of that especially if you can't verify it on the computer you want to we would agree with those points yes that you know those could have been friendly question has happened we don't dispute that also yes you know we believe the officers ha reasonable believe reason to believe that she was your lawfully but that's even not to increase because even if they are getting back to negligently or abused their discretion it would still be covered but we certainly believe they had ample out of the circumstances two or whatever they may be but here the law enforcement proviso and question a function that you should examine the nature inquiry that well you shouldn't examine you know the nature and quality of the ages conduct against the congressional intent underlying the separate provi are you saying that the law enforcement proviso doesn't apply in les's that level of misconduct despite the supreme court's decision in millbrook which really seems to say you don't look at anything extraneous the third circuit's rule that tried to limit it and if it were true was which now one of the two circuits eleven third offices must be engaged investigative or law enforcement activity or they must be executing a search seizing evidence or making an arrest which are the specific references in the visor when i read justice thomas is he saying this is a plain language of the proviso applies and if that's the kind that's it that's where stands for the proposition that you know where the discussion were mine right investigation takes place or where i think we are kind of in the heartland of of an investigation into someone's an illegal status or a lawful status that the discussion or function exception applies in those circumstances would say that neither predominate exactly right i think it it will you have to examine each case answer this already a little bit but it's the federal government's position that sutton is not at all in conflict with millbrook and that sutton is is a good law that we should feel comfortable relying on honor i mean i back is there some way to resolve this case from the government's position that doesn't have any questionable nature the best way to resolve this the best thought intention with any supreme court precedent you know a conclusion that discretionary function exception applies here based on the officers conduct in on the discussion that is afforded in this court's recent decision and so on and  also reached the same conclusion that that and that's in those circumstances this question of function applies and i don't believe that would be in conflict with any do you think when is out of step i don't believe so but i is more unstable than perhaps other case for in light of millbrook because it did add an extra fact that all the rest of what applies but it must be bad faith in the district judge bad faith should not have been considered so what do we do then i think the you know there is a need to do over in the district court or can we make a new allocation of was going to adopt the eleventh circuit's approach for example or whether or not so it's a law on which is one little short one little panel but i'm saying if we think at least the bad faith part of our current case law again is not a presidential holding bad faith but that's no longer sustainable i'm just asking who should make the new call on on this particular case but i think you know as is your honor pointed out earlier in sutton the court you look to the purpose of the exception exceptions and i think to look into the purpose of the discussion or a function exception is all yours would need to do and say this case fits squarely within what congress intended be clear i just want to one other thing that could happen if law enforcement if there was a statute or regulation that required officers sudden the discretionary function exception this is that is the circuits reasoning didn't apply for that reason because there were you know the officers violated provisions but i think where the discretionary function exception lies and where it's clear the conduct was intended that was the congress had in mind that that's all this court needs to look to was a correct determination or incorrect determination that it was correct that it was not developed that argument was not the vote below do you believe that was argued here that that was an incorrect determination  discretionary function exception does not even apply to this case the better reasoning is that is to take the approach of such which describes that that they look at the law enforcement  question a function exception can be intention with one another and there are occasions when the law enforcement provision plies cite the law enforcement provision applies to the exclusion of discretionary function exception and this is just such a case here is it required to some of the didn't say that the default but the more recent generally would apply or anything along those lines didn't want to promise i wonder if they really make them up trying to drag you down and to a side issue but it does seem to me that it's not a very good to give it the legislative it's at is is that one it takes no tort such as we've alleged here falls within that provision we don't look to discretionary function exceptions who do you say the purpose of the law enforcement proviso is if we're looking at the purpose m we didn't weigh that our briefing in this court and i refer to the court to page twenty five and twenty six of our brief where we discussed the issues that and i further want to want to clarify that even though in our complaint w used the magic courts fourth amendments we never list raised this issue and in paragraph thirty three of our complaint we discussed officer acted without authority including without probable cause and if you look back to the to the business case in the supreme court the supreme court recognized that that case in fact alleged the fourth amendment claim even though didn't use the words fourth amendment instead referred to wrongful actions done without probable cause just like we have here