IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40076

M.D.C.G., Individually, as next friend N.L.M.C., A Minor, 

 Plaintiff - Appellant

v.

UNITED STATES OF AMERICA, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

Before JOLLY, SMITH, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal has its beginnings on a horrific day from hell. After 

apprehending MDCG, her fifteen-year-old daughter NLMC, and their 

fourteen-year-old family friend JMAE for entering the United States without 

authorization, and after loading them into his vehicle, Border Patrol Agent 

Esteban Manzanares drove around to various locations in the South Texas 

countryside where he physically and sexually abused the three helpless 

immigrants. This abuse included rape, beatings, knife body-carvings, 

strangulations, and the attempted burial of a living victim. The day from hell 

climaxed with suicide—of the Border Patrol Agent who was found dead, with 

JMAE tied to his bed, when alerted law enforcement arrived at his apartment. 

United States Court of Appeals

Fifth Circuit

FILED

April 21, 2020

Lyle W. Cayce

Clerk

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MDCG and the two minors brought suit against the United States under 

the Federal Tort Claims Act (FTCA), asserting claims of assault and battery, 

false imprisonment/false arrest, intentional and negligent infliction of 

emotional distress, negligence, and negligent hiring, retention, and 

supervision. Under Fed. R. Civ. P. 12(b)(1), the district court dismissed the 

plaintiffs’ claims based on Manzanares’s conduct, holding that Manzanares’s 

actions fell outside the scope of his employment. Following discovery, the 

district court granted summary judgment on the negligent supervision claims 

brought by MDCG on behalf of herself and NLMC. The district court denied 

the government’s motion for summary judgment on the negligent supervision 

claims brought on behalf of JMAE. Under Fed. R. Civ. P. 54(b), the district 

court entered final judgment as to all claims brought by MDCG, individually 

and as next of friend of NLMC. MDCG appeals both the 12(b)(1) dismissal and 

grant of summary judgment.1

Alas, the FTCA does not extend a helping hand to the victims of Agent 

Manzanares. We conclude that Manzanares’s conduct was outside the scope 

of his employment, and accordingly, we AFFIRM the district court’s dismissal 

of MDCG and NLMC’s claims based on Manzanares’s conduct. We further hold 

that the FTCA’s discretionary function exception deprived the district court of 

subject matter jurisdiction over MDCG and NLMC’s negligent supervision 

claims. We thus VACATE the portion of the district court’s judgment which 

addressed the merits of the negligent supervision claims and REMAND those 

claims to the district court to DISMISS for lack of jurisdiction. 

1 JMAE’s negligent supervision claim is the only claim that survived the district 

court’s 12(b)(1) and summary judgment rulings. But the district court has yet to enter 

judgment on JMAE’s dismissed claims. Thus, none of JMAE’s claims are the subject of this 

appeal. 

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I.

On March 12, 2014, United States Border Patrol Agent Esteban 

Manzanares was assigned to a post along the Rio Grande River Sector in 

Hidalgo County, Texas when he spotted MDCG, her fifteen-year-old daughter

NLMC, and their fourteen-year-old family friend JMAE. MDCG and the two 

teenagers, all from Honduras, had recently crossed the United States–Mexico 

border together without authorization. Manzanares, who was patrolling in his 

official government vehicle, approached MDCG and the two girls and ordered 

them to follow his instructions. They then surrendered to Manzanares.

Manzanares told MDCG that he would be taking her to a facility for 

mothers and their children. He then drove around with the plaintiffs making 

several stops. At the second stop, Manzanares placed black restraint bands on 

the plaintiffs’ wrists and put them in the back of his Border Patrol kilo unit 

truck. He then drove the plaintiffs to what is alleged to have been the McAllen 

duty station, a Border Patrol processing facility. But instead of taking the 

plaintiffs inside the facility, Manzanares left them in his vehicle, entered the 

duty station alone, and returned to his vehicle two to three minutes later. 

Manzanares then drove the plaintiffs to an unpopulated area where he taped 

their mouths and wrists, which he said was due to receiving a secondary order. 

Manzanares eventually stopped his vehicle and forcibly removed MDCG 

and her daughter from his truck. Manzanares then struck MDCG’s face and 

body, forcibly dragged her up a hill, strangled her, and twisted her neck. 

Manzanares then pulled out a knife and began to cut MDCG’s arms and wrists. 

MDCG believed she was going to be killed and, at some point, lost 

consciousness. Manzanares then turned to NLMC. NLMC struggled while 

Manzanares strangled, choked, and twisted her neck. During the assault, 

Manzanares provocatively touched NLMC’s breasts and vaginal area and used 

his knife to cut her left arm. Manzanares also took pictures of NLMC’s semi-

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unclothed body. When Manzanares was taking these pictures, NLMC played 

dead.

While Manzanares was assaulting NLMC, MDCG regained 

consciousness and ran for help. Following her escape, MDCG encountered a 

Border Patrol agent who asked her why she was disheveled and covered in 

blood. MDCG told the agent that she had been assaulted by someone “dressed

just like you.” After the agent radioed for help, MDCG was transported to the 

hospital. Meanwhile, apparently thinking NLMC was dead, Manzanares 

covered her with dirt and debris and left the area with JMAE in the vehicle. 

NLMC recovered, ran away, and began to look for her mother. She then 

encountered another Border Patrol agent, was placed in an ambulance, and 

was transported to the hospital. Manzanares eventually took JMAE to his 

apartment where he forcibly bathed her, tied her to a bed, sexually assaulted 

her, and took nude photos of her. JMAE’s abuse ended when Manzanares 

committed suicide as law enforcement closed in on his apartment, hours after 

he first arrested his victims. 

Manzanares’s field supervisor was Luis Solis. Although Solis had made 

initial contact with Manzanares on the morning of March 12, 2014, he did not 

have any further conversations with Manzanares during his shift. In fact, Solis 

left his shift without confirming Manzanares’s whereabouts, even though there 

is evidence that Manzanares failed to call in foot traffic in his zone and that it 

was a slow day for the Border Patrol agents. Manzanares’s supervisors further 

failed to inspect the interior of Manzanares’s vehicle when he returned from 

his shift. 

II.

After exhausting their administrative remedies, the plaintiffs filed this 

FTCA suit in federal district court, asserting claims against the United States 

for: (1) assault and battery; (2) false imprisonment/false arrest; (3) negligent 

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and intentional infliction of emotional distress; (4) negligence; and (5) 

negligent hiring, retention, and supervision. The government filed a motion to 

dismiss under Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). In response 

to these motions, the district court: (1) dismissed, under Rule 12(b)(1), the 

plaintiffs’ claims based on Manzanares’s conduct, holding that Manzanares’s 

tortious actions were outside the scope of his employment; (2) mooted the 

12(b)(6) motion to dismiss with respect to the claims based on Manzanares’s 

conduct; and (3) denied the 12(b)(6) motion to dismiss with respect to the 

plaintiffs’ negligent hiring, retention, and supervision claims.2 These rulings 

thus dismissed all claims based on Manzanares’s conduct. Remaining were 

negligence claims of hiring, retention, and supervision. 

The district court then allowed discovery on the plaintiffs’ remaining 

claims. After discovery, the government moved for summary judgment. The 

district court, rejecting the government’s jurisdictional argument that the 

discretionary function exception to the FTCA applied, addressed the merits of 

the plaintiffs’ negligent supervision claims.3 Nevertheless, addressing the 

merits, it granted the government summary judgment on MDCG and NLMC’s 

negligent supervision claims, holding that there was no evidence Solis, 

Manzanares’s supervisor, breached a duty owed the mother and daughter

when he failed to monitor Manzanares. But it held that JMAE’s negligent 

2 In addition to their false imprisonment and intentional infliction of emotional 

distress claims based on Manzanares’s actions, the plaintiffs also brought false imprisonment 

and intentional infliction of emotional distress claims premised on the actions of the agents 

alleged to have detained the plaintiffs after their rescue. At the motion to dismiss stage, the 

district court allowed those claims to proceed. But the plaintiffs later consented to the 

dismissal of those claims, and they are not the subject of this appeal.

3 The district court held that the plaintiffs’ negligent hiring and retention claims were 

barred by the discretionary function exception of the FTCA. Because MDCG fails to address 

those claims in her briefs, we deem them abandoned. See Soadjede v. Ashcroft, 324 F.3d 830, 

833 (5th Cir. 2003). 

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supervision claims were different from MDCG and NLMC’s claims because her 

abuse continued when Border Patrol agents failed to inspect Manzanares’s 

vehicle after finding MDCG. The district court therefore held that JMAE’s 

negligent supervision claims should stand trial. Thus, the district court turned 

to Fed. R. Civ. P. 54(b) and entered final judgment with respect to all claims 

brought by MDCG, on behalf of herself and NLMC, but left JMAE’s claims 

pending before the district court. MDCG timely appeals.

To recap: the dismissed claims subject to this appeal are MDCG and 

NLMC’s claims for assault and battery, false imprisonment/false arrest, 

negligent and intentional infliction of emotional distress, negligence, and 

negligent supervision. 

III.

We begin with the fundamentals. The United States has sovereign 

immunity from any lawsuit, unless that sovereign immunity has been waived. 

See Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006). Here, the FTCA 

waives that immunity when an injury is 

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, under circumstances where the United 

States, if a private person, would be liable to the claimant in 

accordance with the law of the place where the act or omission 

occurred.

28 U.S.C. § 1346(b)(1) (emphasis added). This waiver of sovereign immunity 

applies to claims that “investigative or law enforcement officers” have 

committed the torts of “assault, battery, false imprisonment, false arrest, 

abuse of process, or malicious prosecution.” 28 U.S.C. § 2680(h). 

It is important to note, however, that there are several statutory 

exceptions to the FTCA’s waiver of sovereign immunity. The discretionary 

function exception is such an example. This exception excludes tort claims 

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against the United States that are “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.” 28 U.S.C. § 2680(a). To determine whether the 

district court had subject matter jurisdiction under the FTCA over MDCG and 

NLMC’s claims, we consider whether Manzanares was acting within the scope 

of his employment when he committed these torts against these three 

plaintiffs, and, secondly, whether the discretionary function exception applies 

to the plaintiffs’ claims that the supervisors of Manzanares were negligent in 

their supervision of him. 

A.

We will first turn our attention to the district court’s dismissal of MDCG 

and NLMC’s claims based on Manzanares’s tortious conduct. We review a 

dismissal for lack of subject matter jurisdiction and a district court’s legal 

conclusions regarding scope of employment de novo. See Musselwhite v. State 

Bar of Tex., 32 F.3d 942, 945 (5th Cir. 1994); Counts v. Guevara, 328 F.3d 212, 

214 (5th Cir. 2003). We also “review[ ] de novo the legal issue of whether the 

district court has discretion to resolve disputed facts dispositive of subject 

matter jurisdiction, applying the same standard used by the district court.” 

Montez v. Dep’t of Navy, 392 F.3d 147, 149 (5th Cir. 2004). 

1.

Before discussing the merits of the district court’s scope of employment 

ruling, we must first turn to MDCG’s argument that the district court applied 

the wrong legal standard to the scope of employment inquiry. As noted earlier, 

the district court addressed these claims under a 12(b)(1) motion, attacking the 

subject matter jurisdiction of the court over the claims. Typically, “[a] district 

court may dispose of a motion to dismiss for lack of subject matter jurisdiction 

based ‘on (1) the complaint alone; (2) the complaint supplemented by 

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undisputed facts; or (3) the complaint supplemented by undisputed facts plus 

the court’s resolution of disputed facts.’” Flores v. Pompeo, 936 F.3d 273, 276 

(5th Cir. 2019) (quoting Robinson v. TCI/US W. Commc’ns Inc., 117 F.3d 900, 

904 (5th Cir. 1997)). The district court recited this standard when it ruled on 

the government’s motion to dismiss.

But, as MDCG points out, when the issue of jurisdiction is intertwined 

with the merits, district courts should “deal with the objection as a direct 

attack on the merits of the plaintiff’s case under either Rule 12(b)(6) or Rule 

56.” Montez, 392 F.3d at 150 (internal quotations omitted) (quoting 

Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981)). To be certain, in 

resolving whether a government employee was acting within the scope of his 

employment under the FTCA, we have held that a 12(b)(6) or summary 

judgment standard, not the Rule 12(b)(1) standard, should be applied. See id.

at 150–51. Thus, to the extent the district court applied the 12(b)(1) standard, 

it was in error.4 Nonetheless, because the government moved for dismissal 

under both Rule 12(b)(1) and Rule 12(b)(6), we will proceed with our de novo 

review of the dismissal of MDCG and NLMC’s claims based on Manzanares’s 

conduct. See Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1348 (5th 

Cir. 1985). 

2.

We now turn to the merits of the district court’s ruling relating to the 

conduct of Officer Manzanares. “The issue of whether an employee is acting 

within the scope of his employment for purposes of the FTCA is governed by 

4 As the government notes, it is not apparent that the district court improperly 

resolved disputed facts in the government’s favor. Instead, the district court appears to have 

accepted the allegations in the complaint as true and supplemented those facts by taking 

judicial notice of publicly available Border Patrol policies and procedures. But, because the 

district court recited the incorrect legal standard, we will proceed under the assumption that 

it applied the 12(b)(1) standard to the scope of employment inquiry. 

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the law of the state in which the wrongful act occurred.” Bodin, 462 F.3d at 

484. Manzanares’s encounter with MDCG and NLMC occurred in Texas. 

Under Texas law, “[t]he general rule is that an employer is liable for its 

employee’s tort only when the tortious act falls within the scope of the 

employee’s general authority in furtherance of the employer’s business and for 

the accomplishment of the object for which the employee was hired.” Minyard 

Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). “[I]f an 

employee deviates from the performance of his duties for his own purposes, the 

employer is not responsible for what occurs during that deviation.” Id. In 

applying a 12(b)(6) standard to the scope of employment inquiry, we accept the 

allegations contained in the complaint as true and view the facts in the light 

most favorable to MDCG and NLMC. Raj v. La. State Univ., 714 F.3d 322, 

329–30 (5th Cir. 2013). 

At oral argument, MDCG’s counsel conceded that Manzanares’s sexual 

assault of NLMC fell outside the scope of his employment. We agree and 

further conclude that Manzanares’s physical assaults of MDCG and NLMC 

also fell outside the scope of his employment. In Texas, an employer may be 

vicariously liable for intentional torts, such as assault and false imprisonment, 

“when the act, although not specifically authorized by the employer, is closely 

connected with the employee’s authorized duties.” G.T. Mgmt., Inc. v. 

Gonzalez, 106 S.W.3d 880, 884 (Tex. App.–Dallas 2003, no pet.). In other 

words, respondeat superior liability exists only “if the intentional tort is 

committed in the accomplishment of a duty entrusted to the employee, rather 

than because of personal animosity.” Id. Here, the only inference to be drawn 

from MDCG’s allegations is that Manzanares’s assaults served a personal, 

rather than work-related, purpose. Border Patrol’s purpose is to detect and 

prevent the illegal entry of aliens into the United States. When Manzanares 

drove MDCG and NLMC away from the duty station, took them to a remote 

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location, placed tape over their mouths and wrists, and began to physically and 

sexually assault them, it is needless to say further that he was not working to 

advance his employer’s business. 

Nor can it be said, even in a remotely tangential way, that Manzanares’s 

conduct “was so connected with and immediately arising out of authorized 

employment tasks as to merge the task and the assaultive conduct into one 

indivisible tort imputed to the employer.” See Buck v. Blum, 130 S.W.3d 285, 

289 (Tex. App.–Houston [14th Dist.] 2004, no pet.). To be sure, as a Border 

Patrol agent, Manzanares had the authority to detain suspected unauthorized 

aliens and to use force in effectuating an arrest. See 8 C.F.R. § 287.8. But that 

authority is light years from asserting that Manzanares’s detention of MDCG 

and NLMC in remote locations along the United States–Mexico border and his 

physical and sexual assaults of them were done in furtherance of these 

authorized duties. In short, Manzanares’s post-duty station conduct 

constituted such a deviation from his employer’s goals that there was a 

complete absence of a causal connection between his actions and his authorized 

employment tasks. It automatically follows that the district court did not err 

in dismissing the assault, false imprisonment, intentional infliction of 

emotional distress, and negligence claims based on Manzanares’s post-duty 

station conduct. 

Nonetheless, MDCG argues that Manzanares committed torts for which 

the United States can be held liable prior to his departure from the duty station 

with MDCG, NLMC, and JMAE. Specifically, MDCG argues that Manzanares 

acted unlawfully, but within the scope of his employment, when he: (1) placed 

black restraint bands on the plaintiffs’ wrists; (2) put them in the back of his 

kilo unit truck; and (3) left them unattended at the duty station.

Whatever the merits of these arguments, MDCG waived them by failing 

to assert such claims before the district court. “[I]f a litigant desires to preserve 

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an argument for appeal, the litigant must press and not merely intimate the 

argument during the proceedings before the district court.” FDIC v. Mijalis, 

15 F.3d 1314, 1327 (5th Cir. 1994). Although it is true that Manzanares’s 

actions prior to the departure from the McAllen duty station are factually 

mentioned in the plaintiffs’ complaint, this conduct is included only as part of 

a beginning point of the narrative that led to the plaintiffs’ ordeal of tormenting 

assaults through the ultimate discovery of JMAE after Manzanares’s suicide. 

The complaint did not tie these facts to the plaintiffs’ causes of action. Instead, 

the plaintiffs supported their causes of action under the FTCA by pointing to 

the allegations that Manzanares dragged MDCG up a hill, knifed MDCG and 

her daughter, choked them, twisted their necks, and provocatively touched 

NLMC and JMAE. Even though the plaintiffs mentioned that they were 

restrained when Manzanares was inflicting this abuse, there is no allegation 

that the wrist restraint bands were part of their assault. Further, the 

plaintiffs’ false imprisonment claims were based on their allegations that 

although Manzanares “had their initial consent to detain them and take them 

to a [Border Patrol] facility,” they did not give him consent “to assault and 

physically abuse them, . . . to use deadly force, and . . . to photograph the minors 

without clothing or partially clothed.” All such actionable conduct occurred 

after Manzanares took the plaintiffs away from the duty station. Nowhere did 

the plaintiffs allege that Manzanares falsely imprisoned them by placing them 

in the back of his truck or by leaving them unattended at the duty station. 

Nor did the brief in response to the government’s motion to dismiss allege 

that the plaintiffs’ claims were based on Manzanares’s pre-duty station 

conduct. Instead, it too focused on the post-duty station assaults and 

detention. Although it is true that the government’s motion to dismiss

conceded that Manzanares acted within the scope of his employment up until 

he left the duty station, the plaintiffs’ response failed to assert that 

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Manzanares committed pre-duty station torts. To be sure, a few isolated 

statements in the response to the motion to dismiss incidentally referenced 

Manzanares’s pre-duty station conduct. Further, at a status conference 

following the district court’s ruling on the government’s motion to dismiss, the 

plaintiffs argued that Manzanares was acting within the scope of his 

employment when he initially detained them to bolster their negligent 

supervision claims. But, notwithstanding the government’s concession that 

Manzanares was initially acting within the scope of his employment, the 

plaintiffs never contended that the United States could be held vicariously 

liable because Manzanares placed black restraint bands on their wrists, 

transported them in the back of his truck, and left them unattended at the duty 

station. 

Thus, we can only but conclude that the plaintiffs’ argument on appeal—

that these pre-duty station actions were tortious conduct within Manzanares’s 

scope of employment—has been waived. We therefore AFFIRM the district 

court’s dismissal of MDCG and NLMC’s claims based on Manzanares’s 

conduct.5 

B.

We will now turn to MDCG and NLMC’s negligent supervision claims, 

which primarily focus on Luis Solis, Manzanares’s immediate supervisor. 

5 MDCG also argues that the district court erred in incorporating the dismissal of the 

claims based on Manzanares’s conduct into the Rule 54(b) judgment because it converted the 

dismissal of those claims into a dismissal with prejudice. We disagree. Both the 54(b) 

judgment and the order granting the government’s motion to dismiss made clear that the 

district court intended to dismiss the claims based on Manzanares’s conduct for lack of 

jurisdiction. And, although the Rule 54(b) judgment certified that the dismissal of MDCG 

and NLMC’s claims based on Manzanares’s conduct was “final,” it did not indicate that those 

claims had been adjudicated on the merits. We thus construe the district court’s dismissal of 

MDCG and NLMC’s claims based on Manzanares’s conduct as a dismissal without prejudice. 

See Fed. R. Civ. P. 41(b). 

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Recall that MDCG and NLMC’s negligent supervision claims are premised on 

Solis’s failure to monitor Manzanares, to confirm his whereabouts, and to 

protect the plaintiffs from abuse.6 Before we can even consider the merits of 

these claims, however, we must address the government’s contention that the 

discretionary function exception7 bars the negligent supervision claims and 

hence our jurisdiction to act further. See Castro v. United States, 608 F.3d 266, 

268 (5th Cir. 2010) (en banc). We review questions of sovereign immunity de 

novo. See Gibson v. United States, 809 F.3d 807, 811 (5th Cir. 2016). 

Whether a government employee’s actions fall within the discretionary 

function exception “involves two inquiries: (1) the conduct must be a matter of 

choice for the acting employee; and (2) the judgment [must be] of the kind that 

the discretionary function exception was designed to shield.” Tsolmon v. 

United States, 841 F.3d 378, 382 (5th Cir. 2016) (internal quotations and 

citations omitted). If either one of these conditions is not met, the 

discretionary function exception fails to protect the United States from suit. 

See Spotts v. United States, 613 F.3d 559, 567–68 (5th Cir. 2010).

Thus, we first ask whether Solis had a choice in how to supervise 

Manzanares. The discretionary function exception is inapplicable if the 

government employee’s challenged conduct violated a specific directive in a 

federal statute, regulation, or policy. See id. at 567. We reach that result 

because an employee has no choice but to adhere to a mandatory rule. Id. at 

6 The plaintiffs also alleged that Manzanares’s other supervisors negligently failed to 

inspect his vehicle at the end of his shift. They further argued that, once Border Patrol found 

MDCG, supervisors should have immediately done a roll call of all agents. We decline to 

address these alleged supervisory failures because they relate only to JMAE’s claims, still 

pending before the district court.

7 As we have earlier noted, this exception excludes claims against the United States 

“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.” 28 U.S.C. § 2680(a). 

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568. Here, the district court concluded that there was no mandatory policy 

that either directed or proscribed a course of action to be taken by 

Manzanares’s supervisors. It is MDCG’s burden to convince us otherwise, see 

Campos v. United States, 888 F.3d 724, 731 (5th Cir. 2018), and she has made 

no argument that the district court erred in its analysis. Further, our review 

of the record has uncovered no Border Patrol policy, regulation, or procedure 

that specifically directed the extent to which Solis was to oversee his 

subordinates or how often he was to maintain contact with them. We therefore 

agree with the district court that Solis had a choice in how to supervise 

Manzanares.8

The second prong asks whether Solis’s judgment in choosing how to 

supervise Manzanares is the kind of judgment “that the discretionary function 

exception was designed to shield.” See Tsolmon, 841 F.3d at 382. Congress 

created the discretionary function exception to protect legislative and 

administrative decisions from judicial second-guessing. See United States v. 

Gaubert, 499 U.S. 315, 323 (1991). Thus, decisions that are susceptible to 

legislative or administrative considerations are the type of judgments that fall 

within the discretionary function exception’s scope. See id. at 325. 

We agree with other circuits that have held that federal employees’ 

supervision of subordinates involves the kind of judgment that the 

discretionary function exception was meant to protect. See, e.g., GordoGonzález v. United States, 873 F.3d 32, 37 (1st Cir. 2017); Snyder v. United 

States, 590 F. App’x 505, 509–10 (6th Cir. 2014); Burkhart v. Wash. Metro. Area 

Transit Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997); see also Tonelli v. United 

8 We again note that we are pretermitting the supervisors’ alleged failure to inspect 

Manzanares’s vehicle at the end of his shift and the alleged failure to conduct a roll call 

because those alleged policy violations are unrelated to MDCG and NLMC’s claims, the only 

claims before us in this appeal. 

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States, 60 F.3d 492, 496 (8th Cir. 1995) (“Issues of employee supervision and 

retention generally involve the permissible exercise of policy judgment and fall 

within the discretionary function exception.”). An agency’s supervision of its 

employees involves matters of balancing management interests in the 

administration and operation of the agency to carry out effectively its 

governmental mission. For example, a Border Patrol supervisor’s decisions 

with respect to how often to communicate with his field agents may be guided 

by the balancing of his need to divide his attention between multiple employees 

and his duty to ensure the safety of individual agents. Or the supervisor’s 

judgment in how closely to monitor agents will be informed by the need to 

manage his resources efficiently. Thus, whatever Solis’s reasons for failing to 

monitor more closely Manzanares’s whereabouts, his supervisory decisions 

encapsulate the essence of the discretionary function exception.

In sum, MDCG points us to no directive that specifically prescribed how 

Solis was to oversee Manzanares, and supervisory judgments are the type of 

judgments that the discretionary function exception protects. The 

discretionary function exception to the FTCA therefore bars MDCG and 

NLMC’s negligent supervision claims. It follows that the district court erred 

when it reached the merits of those claims, and we reverse and vacate its 

decision in this respect.9 

IV.

We recap: Although MDCG and NLMC suffered grievous personal 

injuries by the criminal hands of Agent Manzanares, they cannot recover 

9 We recognize that our discretionary function exception ruling may have implications 

for JMAE’s negligent supervision claims, which are still pending before the district court. 

But we decline to address the effect of our ruling on claims not before us. See Howell v. Town 

of Ball, 827 F.3d 515, 522 (5th Cir. 2016) (“[W]e have jurisdiction over only those claims that 

the district court actually conclusively resolved through dismissal.”). The district court’s 

disposition of JMAE’s remaining claims must not be inconsistent with this opinion.

 Case: 19-40076 Document: 00515389893 Page: 15 Date Filed: 04/21/2020
No. 19-40076

16

damages from the United States under the FTCA. Manzanares’s tortious 

conduct was plainly outside the scope of his employment with the United 

States and consequently it cannot be held liable. Any argument that the 

United States is liable for Manzanares’s pre-duty station conduct has been 

waived by the plaintiffs’ failure to assert the argument before the district court. 

We thus AFFIRM the district court’s dismissal, for lack of jurisdiction, of 

MDCG and NLMC’s claims based on Manzanares’s tortious conduct. 

With respect to the plaintiffs’ claims that the United States is liable for 

Solis’s negligent supervision of Manzanares, we have held that we have no 

jurisdiction over the merits of those claims because the supervision of 

Manzanares was a matter within the agency’s discretion and is excepted from 

the government’s liability as a discretionary function under the FTCA. Given 

that the district court had no jurisdiction to decide the merits of MDCG and 

NLMC’s negligent supervision claims, we VACATE the portion of its judgment 

that reached the merits of those claims and REMAND those claims to the 

district court to DISMISS for lack of jurisdiction.10 Accordingly, the judgment 

of the district court is:

AFFIRMED in part, VACATED in part, and REMANDED.

10 Judge Stewart concurs in the judgment only.

 Case: 19-40076 Document: 00515389893 Page: 16 Date Filed: 04/21/2020