State of Louisiana v. Biden, 45 F.4th 841

Background

On Jan. 27, 2021 President Biden issued Executive Order 14008, §208 of which directed the Interior Secretary to "pause" new onshore and offshore oil and gas leases pending a comprehensive review.
Acting Interior officials and BLM/BOEM actions followed, including suspension of delegated authority and cancellation/postponement of certain lease-sale processes; at issue were Lease Sale 257 (Gulf of Mexico) and 258 (Cook Inlet).
Thirteen states sued under the Administrative Procedure Act seeking injunctive relief, alleging the Department unlawfully postponed/cancelled lease sales without notice-and-comment and/or other APA violations.
The district court granted a nationwide preliminary injunction enjoining the Government from "implementing the Pause" (including Lease Sales 257 and 258 and all eligible onshore properties), but the order did not define "Pause."
The Government appealed. The Fifth Circuit found the injunction and accompanying memorandum failed Fed. R. Civ. P. 65(d)’s specificity requirements and that it was unclear what final agency action the district court had enjoined, hindering APA review.
The Fifth Circuit exercised discretion to consider the Government’s Rule 65(d) argument (raised in reply) and vacated and remanded the injunction for lack of specificity.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Did the injunction satisfy Fed. R. Civ. P. 65(d) specificity?	States: The injunction properly enjoins the nationwide "Pause" (an agency policy/action) and restrained unlawful postponements/cancellations.	Government: The injunction is vague or effectively enjoins the Executive Order and thus fails Rule 65(d).	The injunction is too vague—it does not state with specificity what conduct is restrained—so it fails Rule 65(d).
2. Did the Government waive the Rule 65(d) challenge by raising it in a reply brief?	States: Argue waiver because the Government raised Rule 65(d) only in reply.	Government: Responded in reply because States raised a new theory (an unwritten pause) in their brief; court should consider the defense.	Fifth Circuit exercised discretion to consider the Rule 65(d) argument because the States raised a new issue on appeal.
3. Was the injunction directed at the Executive Order itself or at an unwritten agency "Pause" (i.e., what is the final agency action)?	States: The district court enjoined the agency "Pause" as final agency action, not the EO.	Government: The injunction effectively enjoins the EO or is otherwise unclear about what is restrained.	The district court’s order and memorandum are ambiguous on this point; the panel could not determine what final agency action the injunction targeted.
4. May the court resolve the States’ APA claims on appeal given the record?	States: APA review is appropriate because there was a pause constituting final agency action.	Government: Absent a clearly identified final agency action (or if the EO is nonreviewable), APA review is improper.	Court declined to reach APA merits because ambiguity about what was enjoined prevented determination whether there was final agency action; remand required.

Key Cases Cited

United States v. Ramirez, 557 F.3d 200 (5th Cir. 2009) (permitting consideration of issues raised first in reply when appellee raised a new issue).
Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535 (5th Cir. 2013) (standard of review for preliminary injunction: abuse of discretion; facts for clear error; law de novo).
Scott v. Schedler, 826 F.3d 207 (5th Cir. 2016) (review of whether injunction meets Rule 65(d) is de novo).
Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579 (5th Cir. 2013) (Rule 65(d) requires specific terms and reasonable detail of the acts restrained or required).
U.S. Steel Corp. v. United Mine Workers of Am., 519 F.2d 1236 (5th Cir. 1975) (Rule 65(d) implements notice and due process; orders must be sufficiently precise).
Schmidt v. Lessard, 414 U.S. 473 (U.S. 1974) (Rule 65(d) specificity is substantive and not a mere technicality).
Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (APA review requires a decision constituting final agency action).