Monica CASTRO, For Herself and as Next Friend of R.M.G., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, 608 F.3d 266

PER CURIAM: I. Monica Castro, for herself and as next friend of R.M.G., her minor child (jointly “Castro”), sued the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., alleging, inter alia, that the government’s negligence caused the wrongful deportation of R.M.G., a U.S. citizen. The government moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or, alternatively, for

summary judgment pursuant to Federal Rule of Civil Procedure 56. The district court held that the government is protected from suit by 28 U.S.C. § 2680(a), the discretionary function exception of the FTCA. In a comprehensive and well-reasoned opinion, the court entered a final judgment dismissing Castro’s tort claims for lack of subject matter jurisdiction and dismissing her constitutional and injunctive claims as moot. Castro v. United States, 2007 U.S. Dist. LEXIS 9440 (S.D.Tex. Feb. 9, 2007) (Jack, J.). A divided panel of this court reversed and remanded. Castro v. United States, 560 F.3d 381 (5th Cir.2009).

The court granted rehearing en banc, thus vacating the panel opinion. Castro v. United States, 581 F.3d 275 (5th Cir.2009). Concluding that the discretionary function exception applies, we affirm the judgment of the district court. II. The pertinent facts are not in dispute and are cogently set forth in the district court’s and panel’s opinions. Although, like the district court, we “[do] not condone the Border Patrol’s actions or the choices it made,” Castro, 2007 U.S. Dist.

LEXIS 9440, at *27, the district court was correct in concluding that, because plaintiffs tort claims are barred by the discretionary function exception to the FTCA, the court was without subject matter jurisdiction, and the government’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) should be granted. Correctly noting that the burden on a rule 12(b)(1) motion is on the party asserting jurisdiction — here, Castro — the court, in a comprehensive and convincing order, carefully explained that the two prongs of United States v.

Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), are satisfied: ... [T]he Border Patrol Agents’ decision to let R.M.G. accompany her father back to Mexico was the product of a judgment or choice, and the Border Patrol Agents’ conduct in the situation was not mandated by any statute, regulation or policy ---- [T]he Border Patrol Agents’ decision was unequivocally subject to policy analysis, as it involved the use of government resources and necessarily involved a decision as to what the Border Patrol should do with a United States citizen child in the unique circumstances presented by such a case.

Castro, 2007 U.S. Dist. LEXIS 9440, at *22-*23, *33. We affirm, essentially for the reasons given by the district court, the dismissal of the FTCA claims for want of jurisdiction. We also agree with the district court’s explanation that the constitutional claims are moot, as is the claim for injunctive relief. AFFIRMED.