REVISED April 25, 2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-51476

GUADALUPE CHAIDEZ CAMPOS, 

 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 

United States Court of Appeals

Fifth Circuit

FILED

April 24, 2018

Lyle W. Cayce

Clerk

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2

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).

 

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

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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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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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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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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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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