In general, courts "strictly construe" waivers of sovereign immunity and "resolv[e] all ambiguities in favor of the sovereign." Joiner v. United States, 955 F.3d 399, 404 (5th Cir. 2020). Nevertheless, "unduly generous interpretations of the exceptions to the FTCA run the risk of defeating the central purpose of the FTCA, making application of the general rule improper in this context." Id.

While “[s]tatutes waiving sovereign immunity of the United States are to be construed strictly in favor of the sovereign,” Angulo v. Brown, 978 F.3d 942, 953 (5th Cir. 2020) (quotation omitted), the United States Court of Appeals for the Fifth Circuit has instructed that it “do[es] not construe exceptions to the FTCA in favor of any particular party.” Joiner v. United States, 955 F.3d 399, 404 (5th Cir. 2020). The exceptions relevant here are the independent contractor and discretionary function exceptions.

Depending on the granularity of the analysis, the split can fairly be characterized as either a two-way split or three-way split. See Joiner v. United States, 955 F.3d 399, 406 (5th Cir. 2020) (collecting cases). The Eleventh Circuit has concluded that the 1974 amendment affirmatively waived sovereign immunity for intentional tort claims like the ones at bar regardless of whether the discretionary function exception would have applied in absence of the amendment.

Depending on the granularity of the analysis, the split can fairly be characterized as either a two-way split or three-way split. See Joiner v. United States, 955 F.3d 399, 406 (5th Cir. 2020) (collecting cases). The Eleventh Circuit has concluded that the 1974 amendment affirmatively waived sovereign immunity for intentional tort claims like the ones at bar regardless of whether the discretionary function exception would have applied in absence of the amendment.

“In assessing whether there is jurisdiction, courts may consider: (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.” Joiner v. United States, 955 F.3d 399, 403 (5th Cir. 2020). “To survive a Rule 12(b)(6) motion to dismiss, a complaint does not need detailed factual allegations, but must prove the plaintiff's ground for entitlement to relief-including factual allegations in a complaint that when assumed to be true raise a right to relief above the speculative level.”

Gonzalez does not explain why the third remark was improper or cite any authority in support of this assertion, so any claim of error on these remarks is waived for insufficient briefing. See Joiner v. United States, 955 F.3d 399, 406 (5th Cir. 2020). And the remaining two remarks did not affect his substantial rights, even if they were improper.

Indeed, a private party could not assert a similar claim against the specific defendants in this case without an explicit waiver of sovereign immunity because doing so would offend the Supremacy Clause. See, e.g., Joiner v. United States, 955 F.3d 399, 407 (5th Cir. 2020) ("But a waiver of sovereign immunity 'cannot be implied but must be unequivocally expressed.'" (quoting United States v. King, 395 U.S. 1, 4 (1969))).

In addition, he had the burden to establish that the discretionary function exception of the Federal Tort Claims Act (FTCA) did not apply. See Joiner v. United States, 955 F.3d 399, 403 (5th Cir. 2020); Life Partners Inc. v. United States, 650 F.3d 1026, 1029 (5th Cir. 2011). Although Simmons asserts that there was no evidence to support the dismissal of his claims against the Federal Defendants and that the district court erred by ignoring evidence filed before the pretrial conference, he makes no cogent argument that the district court erred in determining that his claims against the Federal Defendants were not within the scope of the FTCA and that the discretionary function exception applied.

. Joiner v. United States, 955 F.3d 399, 407 (5th Cir. 2020); see also, e.g., Shumpert v. City of Tupelo, 905 F.3d 310, 324 n.60 (5th Cir. 2018) ("[T]he theory of state-created danger is not clearly established law." (listing cases)); Kovacic v. Villarreal, 628 F.3d 209, 214 (5th Cir. 2010) ("The Fifth Circuit has not adopted the 'state-created danger' theory of liability."); Bustos v. Martini Club Inc., 599 F.3d 458, 466 (5th Cir. 2010) ("But this circuit has not adopted the state-created danger theory."); Rios v. City of Del Rio, 444 F.3d 417, 422 (5th Cir. 2006) ("[N]either the Supreme Court nor this court has ever either adopted the state-created danger theory or sustained a recovery on the basis thereof."); Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004) ("This court has consistently refused to recognize a 'state-created danger' theory of § 1983 liability even where the question of the theory's viability has been squarely presented."). Keller, 952 F.3d at 227.

• Finally, there is a split over whether claims that fall within the FTCA's law-enforcement proviso must also fall outside the discretionary-function exception. Compare Nguyen v. United States, 556 F.3d 1244, 1260 (11th Cir. 2009) (proviso trumps exception), with Joiner v. United States, 955 F.3d 399, 406 (5th Cir. 2020) (proviso "does not automatically trump" exception), Linder v. United States, 937 F.3d 1087, 1089 (7th Cir. 2019) (same), Medina v. United States, 259 F.3d 220, 224-26 (4th Cir. 2001) (same), Gasho v. United States, 39 F.3d 1420, 1433 (9th Cir. 1994), and Gray v. Bell, 712 F.2d 490, 507-08 (D.C. Cir. 1983) (same). This longstanding confusion shows the need for more guidance on how to apply the exception.