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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                  No. 19-40076                       April 21, 2020
                                                                    Lyle W. Cayce
M.D.C.G., Individually, as next friend N.L.M.C., A Minor,                Clerk


              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.
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                                    No. 19-40076
       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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                                 No. 19-40076
                                       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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                                   No. 19-40076
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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                                       No. 19-40076
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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                                 No. 19-40076
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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                                  No. 19-40076
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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                                       No. 19-40076
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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                                 No. 19-40076
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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                                   No. 19-40076
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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                                  No. 19-40076
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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                                      No. 19-40076
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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                                       No. 19-40076
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 exception 7 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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                                     No. 19-40076
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., Gordo-
González 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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                                       No. 19-40076
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.
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    Case: 19-40076        Document: 00515389893          Page: 16   Date Filed: 04/21/2020



                                      No. 19-40076
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.
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