STATE
No. 23-50869
United States Court of Appeals for the Fifth Circuit
November 27, 2024
Before WILLETT, DUNCAN, and RAMIREZ, Circuit Judges.
Lyle W. Cayce, Clerk
We address whether United States Border Patrol agents can legally cut a concertina wire (“c-wire” or “wire“) fence the State of Texas has placed along part of the border with Mexico. Border Patrol claims removing the c-wire is sometimes necessary to fulfill its duty of “patrolling the border to prevent the illegal entry of aliens into the United States.”
Texas sued for an injunction, arguing Border Patrol was needlessly cutting its wire. After days of testimony, the district court agreed with Texas on the facts: not only was Border Patrol unhampered by the wire, but its agents had breached the wire numerous times “for no apparent purpose other than to allow migrants easier entrance further inland.” Still, the court denied an injunction based on a legal point: it believed the United States retains sovereign immunity against Texas‘s claims.
A motions panel of our court disagreed and granted a temporary injunction pending appeal. The United States immediately sought relief in the Supreme Court, based in part on events occurring after the injunction issued. Specifically, it claimed that Texas‘s occupying Shelby Park, an area along the border, obstructed access and led to two aliens’ drowning in the Rio Grande. The Supreme Court vacated the injunction without giving reasons.
Our panel, now assigned to the appeal, remanded to find out what happened in Shelby Park. With admirable speed, the district court heard testimony and made new findings. Texas‘s move into the park, it turned out, had only a marginal effect on Border Patrol‘s access and had nothing to do with the drownings. The case then returned to us, and we heard oral argument on the denial of the preliminary injunction.
We now rule that Texas is entitled to a preliminary injunction. Specifically, the United States clearly waived sovereign immunity as to Texas‘s state law claims under
Accordingly, we REVERSE the district court‘s judgment and GRANT Texas‘s request for a preliminary injunction. Based on the district court‘s supplemental fact findings concerning intervening events in Shelby Park, however, we modify the preliminary injunction as follows.1
Defendants are ENJOINED from damaging, destroying, or otherwise interfering with Texas‘s c-wire fence in the vicinity of Eagle Pass, Texas, as indicated in Texas‘s
I. Facts and Proceedings
A. Facts2
Along the 1,200 miles of the Rio Grande forming the border between Texas and Mexico, there are 29 official points of entry into the United States. In recent years, “[t]he number of Border Patrol encounters with migrants illegally entering the country has swelled from a comparatively paltry 458,000 in 2020 to 1.7 million in 2021 and 2.4 million in 2022.” Exploiting this situation, drug cartels have made “an incredibly lucrative enterprise” out of trafficking humans and illegal drugs like fentanyl, which “is frequently encountered in vast quantities at the border.”
In 2021, Texas launched Operation Lone Star to aid the Border Patrol. “By all accounts, Border Patrol is grateful for the assistance of Texas law enforcement, and the evidence shows the parties work cooperatively across the state, including in El Paso and the Rio Grande Valley.” There has been conflict in the Eagle Pass area, however.
Maverick County and Eagle Pass are “the epicenter of the present migrant influx: nearly a quarter of migrant entries into the United States happen there.” Border Patrol set up a temporary processing center in Maverick County on private land close to the Rio Grande. By September 2023, Texas had installed over 29 miles of c-wire in this area, much of which Texas laid “along several sections of [the] riverfront.” The c-wire serves as a “deterrent—an effective one at that,” causing illegal crossings to drop precipitously.
Both the Border Patrol and Texas agree that the c-wire must be cut in the event of a medical emergency or to enforce federal immigration law. “The problem arises when Border Patrol agents cut the wire without prior notification to [Texas] for [other] reasons.” Beginning around September 2023, Texas and Border Patrol began to clash in the Eagle Pass area. Agents began cutting Texas‘s wire to permit aliens to enter the United States. The district court found “at least fourteen incidents of wire cutting.”
A September 20th incident captured on video was, in the district court‘s view, the “most illustrative.” The video shows that Border Patrol agents have cut a hole in the c-wire to allow aliens to enter. They then cut two additional holes about 15 feet away and install “a climbing rope for migrants.” Meanwhile, a Border Patrol boat “passively observ[es] a stream of migrants” stretching across the river and onto the Mexican shore who were never “interviewed, questioned as to citizenship, or in any way hindered in their progress into the United States.” Instead, after letting the aliens through, the Border Patrol sent them to “walk as much as a mile or more” with no supervision in hopes they would proceed to the nearest processing center.
B. District court proceedings
Due to repeated instances like the one described above, Texas sued Defendants3
The court granted an emergency TRO barring Defendants “from interfering with [Texas‘s] concertina wire except for medical emergencies.” Over the ensuing month, the court held two hearings on Texas‘s motion, featuring testimony from multiple witnesses and thousands of pages of evidence (including five videos) as a result of expedited discovery. The court twice extended the TRO.
Ultimately, the district court denied a preliminary injunction for the sole reasоn that, in its view, Congress did not waive the United States’ sovereign immunity under
The court rejected as a factual matter Defendants’ assertion that they cut the wire to “inspect, apprehend, and process” incoming aliens.4 It found that no aliens were “inspected” at all. Regardless, though, Border Patrol could have inspected aliens without disturbing the wire because “agents already possess access to both sides of the fence . . . to the river and bank by boat and to the further-inland side of the fence by road.” Based on this finding, the court concluded that Defendants “cannot justify cutting or moving [Texas‘s] fence whenever and wherever they find convenient based on a supposed need to access the river by both boat and foot so they may passively observe migrants crossing.”
Nor was wire-cutting necessary to “apprehend” or “process” aliens. Indeed, no one was “apprehended“—aliens coming through the holes were waived along in the “hope that [they] will flow in an orderly manner . . . to the nearest processing center.” Defendants let “some 4,555 migrants [in] during [the September 20] incident, but only 2,680 presented themselves for processing.” The court thus rejected Defendants’ claim that they needed to cut or move Texas‘s fence “to allow migrants to proceed toward a further-inland processing center.” “Any justifications resting on the Defendants’ illusory and life-threatening ‘inspection’ and ‘apprehension’ practices, or lack thereof, fail.”5
Ultimately, the court concluded that “an emergency that can be just as adequately addressed by less destructive means, such as by reaching one or more individuals by boat rather than on foot, does not justify opening the fence at all.” It also held that Defendants cut the c-wire “for no apparent purpose other than to allow migrants easier entrance further inland,” and they “cannot claim the statutory duties they are so obviously derelict in enforcing as excuses to puncture” the wire.
As to Winter‘s third and fourth prongs, the court held that the “possible harm suffered by [Texas] in the form of loss of control and use of its private property continues to satisfy the irreparable harm prong.” It also stood by the “public interest calculation” from its TRO—namely, that deterring illegal immigration and unlawful agency action were in the public interest.
Turning to Texas‘s other claims, the court concluded there was “insufficient evidence” at this early stage to support finding a “final agency action” or ”ultra vires” acts. The court noted, however, that further “[d]iscovery may produce information that sheds new light” on these claims.
The court thus found the Winter factors favored Texas but, due to sovereign immunity, it denied a preliminary injunction. Texas appealed and sought an emergency injunction pending appeal.
C. Motions panel grants injunction pending appeal
The motions panel granted an administrative stay and requested a response to Texas‘s motion. On December 19, 2023, the panel granted an injunction pending appeal, enjoining the Border Patrol from “damaging, destroying, or otherwise interfering with Texas‘s c-wire fence in the vicinity of Eagle Pass, Texas” except “if necessary to address any medical emergency as specified in the TRO.” The injunction was based on the following reasoning.
First, the panel ruled that the district court legally erred because
Two days later, Defendants moved to expedite the appeal, which the motions panel granted on December 28, 2023. An expedited schedule was set to finish briefing by January 30, 2024.
D. Supreme Court vacates the injunction pending appeal
Despite receiving expedited relief, Defendants filed an emergency application in the Supreme Court to vacate the injunction pending appeal. See Application to Vacate the Injunction Pending Appeal, DHS v. Texas, No. 23A607 (U.S. Jan. 2, 2024) (“Vacatur Application“). The parties’ briefing advanced the same arguments made to the motions panel and was completed by January 10, 2024.
Two days later, however, Defendants filed a supplemental brief in the Supreme Court, arguing events after the injunction‘s entry justified vacatur. They pointed to Texas officials’ occupying Shelby Park, a border area within the zone affected by the injunction. According to Defendants, this move prevented Border Patrol from surveilling a 2.5 mile stretch of the border, from accessing a boat ramp, and from using the park for processing aliens. See Supplemental Memorandum at 2–5, DHS v. Texas, No. 23A607 (U.S. Jan. 12, 2024) (“Supplemental Memo“).
Texas disputed these assertions. See Texas‘s Response to the United States‘s Supplemental Memorandum at 2–3, DHS v. Texas, No. 23A607 (U.S. Jan. 13, 2024) (“Supplemental Response“). Texas argued that it moved into the park only to ensure public safety, that Border Patrol had already ceased operations there, and that Texas‘s move did not obstruct surveillance. Texas also contended it had never been informed that Border Patrol lacked boat ramp access, only learning this from Defendants’ briefing. Id. at 4–5. Texas immediately restored Border Patrol‘s access to the ramp. Id. at 5.
On January 15, 2024, Defendants filed a second supplemental brief, claiming Texas prevented Border Patrol from accessing the river to save two aliens who drowned on January 12. See Second Supplemental Memorandum Regarding Emergency Application to Vacate the Injunction Pending Appeal, DHS v. Texas, No. 23A607 (U.S. Jan. 15, 2024) (“Second Supplemental Memo“). Texas hotly disputed this, arguing Border Patrol never sought access to the park for that purpose and, instead, informed Texas officers only that Mexican officials had recovered two bodies and rescued two other aliens. See Texas‘s Response to the United States’ Second Supplemental Memorandum at 3–4, DHS v. Texas, No. 23A607 (U.S. Jan. 17, 2024) (“Second Supplemental Response“). Hours after the drownings, the Department of Homeland Security released a public statement asserting: “In responding to a distress call from the Mexican government, Border Patrol agents were physically barred by Texas officials from entering the area.”
A week later, the Supreme Court vacated the injunction pending appeal by 5-4 vote without accompanying reasons. DHS v. Texas, 144 S. Ct. 715 (2024) (Mem) (No. 23A607) (Jan. 22, 2024).
E. Limited remand
On January 26, 2024, our panel held Texas‘s appeal in abeyance and ordered a limited remand to the district court. The order noted that, in the Supreme Court, the parties “strenuously disputed various factual issues, many of which concerned matters arising after the motion panel‘s injunction.” We asked the district court “to make additional fact findings concerning th[ose] matters . . . and any other matters the district court deem[ed] relevant.” With admirable dispatch and thoroughness, the district court held two days of hearings and issued supplemental findings. We briefly summarize those findings here.
First, the findings clarify Texas‘s move into Shelby Park. On January 10, 2024, Texas established a 2.5-mile perimeter while constructing an “inner cordon” within the park. This is illustrated by two maps from Texas‘s supplemental brief—the left-hand map depicts the 2.5-mile perimeter and the right-hand map shows the park:
Texas withdrew from the 2.5-mile line a “few hours” into the operation. At the hearing, Defendants agreed they lost border access along the 2.5-mile stretch only for about four hours.
Second, the findings clarify whether Texas‘s actions compromised boat ramp access or border visibility. Regarding Border Patrol‘s January 10–12 loss of ramp access, the court found no “emergency river operations” were impeded during that interval. As to visibility, the court found Border Patrol experienced some reduction from January 10–12 but regained substantial visibility “within hours or days” of Texas‘s occupying the park.
Third, the findings shed light on the January 12 drownings. The court found that “the emergency involving possible drownings had concluded about one hour and a half before Border Patrol agents arrived at the gates of Shelby Park.” By
Finally, the findings address Defendants’ broader contention that Texas‘s actions were “an impediment” to enforcing federal law. The court found these claims “too vague to make a concrete determination.” The court did find, however, that Border Patrol agents were put “at risk” and “slow[ed] down” by having to pass through the gate in Texas‘s fencing around the park. But the court ultimately concluded it was “an open question . . . whether [Texas‘s activity] constitutes an impediment, an inconvenience, or none of the above.”
The parties disagree over whether we can consider these supplemental findings in reviewing the propriety of the district court‘s denial of a preliminary injunction. We need not resolve that issue. Reliance on the supplemental findings is not necessary to resolve the legal issues before us, which are the same as those before the motions panel.8
II. Standard of Review
A party seeking a preliminary injunction must establish: (1) a substantial likelihood it will prevail on the merits, (2) a substantial threat it will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to the movant outweighs the threatened harm the injunction may do to the nonmovant, and (4) that granting the preliminary injunction will not disserve the public interest. Winter, 555 U.S. at 20. We review the decision to grant or deny a preliminary injunction for abuse of discretion. Anibowei v. Morgan, 70 F.4th 898, 902 (5th Cir. 2023). A district court abuses its discretion by “rest[ing] its legal analysis on an erroneous understanding of governing law.” McKinney ex rel. N.L.R.B. v. Creative Vision Res., L.L.C., 783 F.3d 293, 298 (5th Cir. 2015) (quoting Langbecker v. Elec. Data Sys. Corp., 476 F.3d 299, 306 (5th Cir. 2007)).
III. Discussion
Texas contends that, contrary to the district court‘s ruling,
A. Section 702 Waiver
We begin with Texas‘s argument that, contrary to the district court‘s ruling,
The United States and its agencies are immune from suit, even by states, unless Congress waives sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994); California v. Arizona, 440 U.S. 59, 61–62 (1979). A waiver of sovereign immunity requires a
We first examine
1. Section 702‘s text
Section 702 provides in relevant part:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An actiоn in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States[.]
Defendants’ counterarguments fail. They argue
When Congress wants to add the qualifier “federal,” it knows how. Elsewhere in
2. Precedent interpreting § 702
Texas‘s waiver argument is also strongly supported by the cases interpreting
Start with our own decisions. We have never suggested that
Every one of our sister circuits has construed
those circuits
For instance, the Third Circuit held that
3. The FTCA does not implicitly override § 702 ‘s waiver
One of Defendants’ counterarguments merits separate mention. They contend the FTCA is the exclusive remedy for all state tort actions, regardless of the remedy sought. So,
Defendants’ argument finds no foothold in the FTCA‘s text. They claim the FTCA imposes “important limitations” on tort claims against the United States because “it permits money damages, not prospective relief.” Only the first half of that statement is true. Yes, the FTCA permits “claim[s] for money damages against the United States” in certain situations. See
Three of our sister circuits have rejected the argument Defendants urge here. The D.C. Circuit, for instance, drew precisely the opposite inference from the FTCA‘s silence about nonmonetary relief. It reasoned that, in certain circumstances, the “FTCA specifically bars money damages . . . which by parity of reasoning implies that injunctive relief is available.” U.S. Info. Agency v. Krc, 989 F.2d 1211, 1216 (D.C. Cir. 1993). So, it rejected the argument that the FTCA “impliedly forbids specific relief for tortious interference with prospective employment opportunities” (which was, not incidentally, a state tort law claim for nonmonetary relief). Ibid. For its part, the Seventh Circuit cautioned that efforts to “transform [the FTCA‘s] silence into implicit prohibition would seriously undermine Congress‘s effort in the APA to authorize specific relief against the United States,” because by enacting
Defendants give us no reason to split from these circuits.
***
To sum up:
Finally, then-Judge Kavanaugh‘s concurrence in El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 854 (D.C. Cir. 2010) (en banc) (Kavanaugh, J., concurring in the judgment), is not to the contrary. There, Judge Kavanaugh noted that “the APA does not borrow state law or permit state law to be used as a basis for seeking injunctive or declaratory relief against the United States.” Id. But that case dealt with an APA cause of action and monetary damages, not a sovereign immunity waiver under
B. Intergovernmental Immunity
We next address the argument that Texas‘s claims are barred by intergovernmental immunity. A state law violates intergovernmental immunity when it (1) “regulates the United States directly” or (2) “‘discriminates against the Federal Government or those with whom it deals’ (e.g., contractors).” United States v. Washington, 596 U.S. 832, 838 (2022) (cleaned up) (quoting North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality opinion)). Defendants argue under the first prong only, contending Texas‘s lawsuit seeks to “directly regulate the federal government‘s operations.” For several reasons, we disagree.17 Assuming intergovernmental immunity has not been waived,18 Texas‘s lawsuit does not violate it. That is because (1) Texas is acting as a proprietor and not a regulator; and (2) regardless, Texas‘s lawsuit does not seek to control federal employees but, at most, only incidentally affects their duties.
First of all, Texas is acting as a proprietor, not a regulator.19 Through its lawsuit, Texas asserts its rights as “an ordinary proprietor” under state tort law, Fort Leavenworth Ry. v. Lowe, 114 U.S. 525, 531 (1885), and so is not “acting in a regulatory rather than proprietary mode,” Am. Trucking Ass‘ns v. City of L.A., 569 U.S. 641, 649-50 (2013).20 That accords with the district
That makes this case quite different from typical intergovernmental immunity cases. Those cases deal with states (1) targeting the Federal Government through state laws or regulations,21 or (2) applying neutral state laws to federal property.22 This case fits neither category. The first does not apply because Texas is not discriminating against the Federal Government (and Defendants do not claim it is). Rather, Texas seeks to enforce generally applicable state tort laws against trespass and conversion. The second category does not apply because Texas has sued to presеrve its own property, not to affect federal property.
But let‘s assume arguendo that Texas‘s suit counts as “regulating” the Federal Government. The intergovernmental immunity argument would still fail. It is well settled that generally applicable state laws can apply to federal agents.23 As the Supreme Court has explained, “[o]f course an employee of the United States does not secure a general immunity from state law while acting in the course of his employment.” Johnson, 254 U.S. at 56.
As numerous cases have recognized, the key question is whether state law seeks to improperly “control” the employee‘s federal duties, or whether the law only “might affect incidentally the mode of carrying out the employment—as, for instance, a statute or ordinance regulating the mode of turning at the corners of streets.” Id. at 56-57.24 Texas‘s
The only federal duty implicated here is found in
At most, Texas‘s suit incidentally impacts how Defendants carry out their duties under
Consider a hypothetical. In addition to allowing conditional access to private lands,
Defendants also suggest that accepting Texas‘s argument would create a conflict with the Ninth Circuit‘s decision in Geo Grp., Inc. v. Newsom, 50 F.4th 745 (9th Cir. 2022) (en banc). We again disagree. In Geo Group, the Government, alongside a private detention facility, challenged a California law forbidding operation of “a private detention facility within the state.” Id. at 750 (quoting
This case presents no such concern. Texas does not seek to prohibit Defendants from cutting a lock or a fence when necessary under
Finally, Defendants try to smuggle in preemption. They insinuate that intergovernmental
Regardless, preemption would not help Defendants. Their brief suggests an intractable conflict between federal law and Texas‘s assеrtion of property rights. We fail to see any conflict. As noted, the only federal statute in play is
In sum, intergovernmental immunity does not bar Texas‘s lawsuit.
C. INA Jurisdictional Bar
Finally, Defendants contend that
The INA bars inferior courts from enjoining “the operation of” certain immigration statutes, specifically
Texas does not seek to enjoin the operation of any of the provisions listed in
Defendants respond that, in essence, they are the ultimate judges of whether
In any event, Aleman Gonzalez does not mandate the bizarre result Defendants propose. There, two district courts ordered the Government to provide certified classes of aliens with bond hearings under
Aleman Gonzalez‘s references to “the Government‘s view” were, contrary to Defendants’ argument here, not invitations for the Government to add new statutes to the list in
Finally, Defendants argue that an injunction prohibiting Border Patrol from cutting Texas‘s c-wire would directly interfere with the operation of two of the statutes covered by
The district court found as a factual matter that Defendants’ duties under
***
In sum,
D. Winter Factors
Having decided that Texas‘s state law claims are not barred by sovereign immunity, intergovernmental immunity, or the INA, we proceed to consider whether Texas is entitled to a preliminary injunction on those claims. See Winter, 555 U.S. at 20.
1. Likelihood of Success on the Merits
In its TRO, the district court concluded Texas had a strong likelihood of success because “[1] the concertina wire is state property; [2] Defendants have exercised dominion over that property absent any kind of exigency; and [3] they have continued to do so even after being put on notice of [Texas‘s] interest in the property.” On appeal, Texas reasserts its likelihood of success for those same reasons. Defendants do not contest the merits of these state law claims, choosing instead to focus solely on immunity. They have thus forfeited any argument that their actions do not amount to violations of state law. Am. Precision Ammunition, L.L.C. v. City of Min. Wells, 90 F.4th 820, 827 n.6 (5th Cir. 2024) (“Arguments not raised in district court will not be considered absent extraordinary circumstances.” (quoting Chevron USA, Inc. v. Aker Mar. Inc., 689 F.3d 497, 503 (5th Cir. 2012))). We therefore agree with the district court that Texas has demonstrated a likelihood of success on the merits of its state law claims.
2. Irreparable Harm
We next consider whether Texas has shown it would be irreparably injured absent an injunction. Texas contends it will suffer irreparable harm from (1) Defendants’ continuous unjustified trespass; (2) an increased risk of harm from the dangers the fence was meant to prevent; and (3) a decrease in public safety from higher levels of criminals and drugs entering Texas. We agree in part.
We review findings on likelihood of irreparable harm for clear error. See Jiao v. Xu, 28 F.4th 591, 598 (5th Cir. 2022); Tribal Sols. Grp., L.L.C. v. Valandra, 2023 WL 7314308, at *3 (5th Cir. Nov. 6, 2023). Moreover, in reviewing a court‘s preliminary injunction ruling, we must give “due regard to the trial court‘s opportunity to judge the witnesses’ credibility.” CAE Integrated, L.L.C. v. Moov Techs., Inc., 44 F.4th 257, 261 (5th Cir. 2022) (quoting Harm v. Lake-Harm, 16 F.4th 450, 455 (5th Cir. 2021)).
The court found Texas would suffer irreparable harm “in the form of loss of control and use of its private property” and held that the harm and public interest “calculation” in its TRO “stands.” In the TRO, the court explained that Defendants’ employees have repeatedly “damag[ed], destroy[ed], and exercis[ed] dominion over state property” and “show[ed] that they intend to prevent [Texas] from ‘maintaining operational control over its own property.‘” The court noted “at least fourteen
We see no clear error here. When a trespass is continuous such that stopping it would require a multiplicity of suits, an injunction is justified because monetary relief is inadequate.30 Donovan v. Pa. Co., 199 U.S. 279, 304-05 (1905) (During “a continuing trespass,” equitable relief is necessary to “avoid[] a multiplicity of suits” and “the inadequacy of a legal remedy . . . is quite apparent.“); Rojas-Adam Corp. of Del. v. Young, 13 F.2d 988, 989-90 (5th Cir. 1926) (granting an injunction against continuous trespass); Beathard Joint Venture v. W. Hous. Airport Corp., 72 S.W.3d 426, 432 (Tex. App.—Texarkana 2002, no pet.) (applying Texas law). In other words, where a tort claim seeks to stop a “continuing trespass to land,” as Texas‘s does, irreparable injury exists, and injunctive relief is appropriate. See RESTATEMENT (SECOND) OF TORTS § 938 cmt. c (1979).31
The record therefore supports the court‘s factual finding that Texas has demonstrated a likelihood of irreparable harm.
3. Balance of Equities and Public Interest
Last, we turn to the balance of equities and public interest. “Where the State is appealing an injunction, its interest and harm merge with the public interest.” Book People, Inc. v. Wong, 91 F.4th 318, 341 (5th Cir. 2024). Texas contends on appeal that Defendants’ improper conduct, the prevention of illegal immigration and accompanying crime, and the prevention of unlawful agency action all support granting it an injunction. We again agree in part.
“In reviewing a district court‘s decision on injunctive relief, we may reverse the district court‘s factual findings regarding irreparable injury, balancing of the equities, and the public interest only if they are clearly erroneous.” Clark v. Prichard, 812 F.2d 991, 996 n.9 (5th Cir. 1987); Google, Inc. v. Hood, 822 F.3d 212, 220 (5th Cir. 2016) (“We review the district court‘s determination on each of these [preliminary injunction] elements for clear error . . . .“). A court‘s findings concerning the balance of equities and public interest are factual and thus “implicate the discretion of that court to craft a remedy and weigh the evidence.” Janvey, 647 F.3d at 601.
First, “[t]here is generally no public interest in the perpetuation of unlawful agency action.” Louisiana v. Biden, 55 F.4th 1017, 1035 (5th Cir. 2022) (quoting State v. Biden, 10 F.4th 538, 560 (5th Cir. 2021)). The opposite is true: there is “substantial public interest ‘in having governmental agencies abide by the federal laws that govern their existence and operations.‘” Texas v. United States, 40 F.4th 205, 229 (5th Cir. 2022) (quoting League of Women Voters of United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016)). The court found that Defendants exceeded their authority by cutting Texas‘s c-wire for purposes other than a medical emergency, inspection, or detention. Because Defendants exceeded their statutory authority under these facts, the court‘s findings withstand clear error review.
Second, consider the vast swath of private and state land where Defendants can enter without a warrant to enforce immigration law. As Texas has explained,
Defendants argue that the equities weigh against an injunction because it would “flout the Supremacy Clause” by preventing them from enforcing immigration law and “diminish[] the Federal Government‘s control over enforcement,” risk human life, and undermine international relations with Mexico. We disagree that a well-crafted injunction under these facts would have such effects.
As already explained, supra III.A and III.B, Congress waived sovereign immunity for Texas‘s state law claims and explicitly gave federal courts authority to enjoin federal officers. There is no risk, then, that an injunction would undermine the Supremacy Clause because federal law itself
authorizes the injunction. Moreover, an injunction prohibiting Defendants from cutting Texas‘s wire in instances where it has access to both sides of the fence and yet unnecessarily cuts the wire would in no way undermine Defendants’ ability to enforce immigration law. Rather, as the district court found, an injunction would encourage adherence to 33 “Border Patrol guidance [that] require[s] that agents take steps to work with the owner to gain access” to private land.
As for risks to human life, this factor is neutral. Texas‘s c-wire conceivably poses a
Finally, we reject Defendants’ contention that Texas‘s fencing undermines international relations. Mexico‘s complaints focus principally on Texas‘s installation of buoys in the Rio Grande and barriers on islands within the floodplain that could divert water into Mexico.33 The buoy issue was never rаised in this litigation, however. Moreover, our en banc court recently vacated a preliminary injunction against the buoys, noting the Government had not shown how the relief it sought—moving the buoys to the American bank—would ease international tensions. See United States v. Abbott, 110 F.4th 700, 720–21 (5th Cir. 2024) (en banc). Similarly, Defendants here have not shown how removing Texas‘s wire would ease international relations when they themselves continue to use c-wire. True, both of Mexico‘s complaints reference c-wire, but they suggest the main problem is c-wire inside the floodplain. That is not at issue. The c-wire here is on top of the riverbank, not in the floodplain.
More importantly, though, concerns about international relations do not erase property owners’ rights over thousands of square miles along the border. “Our precedents, old and new, make clear that concerns of national security and foreign relations do no warrant abdication of the judicial role.” Holder v. Humanitarian L. Project, 561 U.S. 1, 34 (2010). And foreign policy below the binding level of a treaty or legislation cannot displace state law. See Medellín v. Texas, 552 U.S. 491, 529–32 (2008).
In sum, we find no clear error or abuse of discretion in the district court‘s weighing of the balance of equities and public interest prongs.
IV. CONCLUSION
Texas‘s state law claims for injunctive relief are not barred by sovereign immunity, intergovernmental immunity, or the INA‘s jurisdictional bar. Accordingly, we REVERSE the district court‘s judgment and GRANT Texas‘s request for a preliminary injunction. Based on the district court‘s supplemental fact findings concerning intervening events in Shelby Park, however, we modify the preliminary injunction as follows.
Defendants are ENJOINED from damaging, destroying, or otherwise interfering with Texas‘s c-wire fence in the vicinity of Eagle Pass, Texas, as indicated in Texas‘s complaint, in instances where Defendants have the necessary access to both sides of Texas‘s c-wire for immigration law enforcement purposes. That necessary access must include the land side of the c-wire fence along the international border within Shelby Park.
Because Texas has not met its burden to show a waiver of sovereign immunity or a likelihood of success on the merits, I respectfully dissent.
I
Texas pleads four claims arising under federal law—three via the Administrative Procedure Act (APA) and one challenging “ultra vires non-final agency action.” It contends that Defendants have a “policy, pattern, or practice of intermeddling with [Texas]‘s concertina wire” along the border, and thаt this “wire-cutting policy” (the Policy) runs afoul of the APA both substantively and procedurally. Substantively, Texas claims that the Policy is arbitrary and capricious, and it exceeds Defendants’ statutory authorization to “control and guard the boundaries and borders of the United States against the illegal entry of aliens.” Procedurally, Texas claims that Defendants did not submit the Policy for notice-and-comment as required under the APA.34
Texas also pleads two claims arising under state law: common-law trespass-to-chattels and common-law conversion. According to Texas, the concertina wire is its personal property, and Defendants “intentionally and repeatedly intermeddled with, destroyed, or otherwise exercised dominion over [the wire] by seizing and cutting it.” Texas claims that these repeated and ongoing acts of trespass and conversion may only be remedied through injunctive relief.
The district court initially found that sovereign immunity barred Texas‘s claim for injunctive relief.35 Texas v. DHS, No. 23-CV-55, 2023 WL 8285223, at *6 n.8, *7–11 (W.D. Tex. Nov. 29, 2023). It then assessed the likelihood of success on the merits of Texas‘s federal claims. Id. at *14–17. It found that Texas had not established a “policy, practice, or pattern” of cutting the concertina wire, and that there was insufficient evidence that the alleged “wire-cutting policy” is final agency action as required for Texas to succeed on its three APA claims. Id. The district court also found Texas‘s ultra vires claim lacking and denied the motion for preliminary injunction. Id. at *17.
II
The APA dictates how federal courts review agency action. Christopher J. Walker, The Lost World of the Administrative Procedure Act: A Literature Review, 28 GEO. MASON L. REV. 733, 734 (2021). Enacted in 1946, it emerged “against a background of rapid expansion of the administrative process as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” United States v. Morton Salt Co., 338 U.S. 632, 644 (1950).
The APA requires federal agencies to meet certain procedural requirements in developing and issuing regulations. For example, agencies are required to publish “[g]eneral notice of proposed rule making[s] . . . in the Federal Register.”
Under the APA, there are two types of rules: (a) substantive rules and (b) intеrpretative rules. A substantive rule is “[a]n agency action that purports to impose legally binding obligations or prohibitions on regulated parties—and that would be the basis for an enforcement action for violations of those obligations or requirements.” Nat‘l Mining Ass‘n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014) (Kavanaugh, J.). Substantive rules have “the ‘force and effect of law.‘” Mock v. Garland, 75 F.4th 563, 578 (5th Cir. 2023) (quoting Perez v. Mortgage Bankers Ass‘n, 575 U.S. 92, 96 (2015)). An interpretive rule, on the other hand, “merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties.” Nat‘l Mining Ass‘n, 758 F.3d at 252.
In contrast to rules, a “statement of policy” “merely explains how the agency will enforce a statute or regulation—in other words, how it will exercise its broad enforcement discretion . . . under some extant statute or rule.” Id. It “leaves the agency and its decision-makers free to exercise discretion” and does not impose any rights or obligations. Texas v. United States, 809 F.3d 134, 171 (5th Cir. 2015).
The APA permits judicial review of agency actions, including substantive rules, in certain instances,
A
Texas contends the Policy is “subject to judicial review” under
authorizing statute,” and (2) final agency action for which no adequate remedy at law exists.
Because Texas does not identify a statute expressly authorizing review of the Policy, judicial review may be available only under the second option. See Lujan v. Nat‘l Wildlife Fed‘n, 497 U.S. 871, 882 (1990). The adequate-remedy prong is not at issue, so Texas must demonstrate that the Policy constitutes final agency action. See Qureshi v. Holder, 663 F.3d 778, 781 & n.4 (5th Cir. 2011).
“[A]n action is ‘final’ if it both (1) ‘marks the “consummation” of the agency‘s decisionmaking process’ and (2) is ‘one by which “rights or obligations have been determined,” or from which “legal consequences will flow.“‘” Smith v. Berryhill, 587 U.S. 471, 481 (2019) (quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)); see Driftless Area Land Conservancy v. Rural Utils. Serv., 74 F.4th 489, 493 (7th Cir. 2023) (“In other words, § 704 asks whether a ‘terminal event’ has occurred.” (quoting Salinas v. U.S. R.R. Bd., 592 U.S. 188, 195 (2021))). These are the ”Bennett prongs.” See, e.g., U.S. Army Corps of Eng‘rs v. Hawkes Co., Inc., 578 U.S. 590, 599 (2016); Nat‘l Pork Producers Council v. EPA, 635 F.3d 738, 755–56 (5th Cir. 2011).
Both requirements “must be satisfied independently.” Soundboard Ass‘n v. FTC, 888 F.3d 1261, 1271 (D.C. Cir. 2018). They are not unbending, however—courts “take[] a ‘pragmatic approach,’ viewing the APA finality requirement as ‘flexible.‘” Texas v. Becerra, 89 F.4th 529, 538 (5th Cir. 2024) (quoting Texas v. EEOC, 933 F.3d 433, 441 (5th Cir. 2019)). “Absent a showing of finality,” this court “lacks jurisdiction to review” agency action. La. Real Est. Appraisers Bd. v. FTC, 976 F.3d 597, 601 (5th Cir. 2020).
1
The first Bennett prong requires courts “to determine ‘whether an action is properly attributable to the agency itself and represents the culmination of that agency‘s consideration of an issue,’ or is, instead, ‘only the ruling of a subordinate official, or tentative.‘” NRDC v. Wheeler, 955 F.3d 68, 78 (D.C. Cir. 2020) (citation omitted). Agency action that is “tentative or interlocutory” is non-final. Nat‘l Pork, 635 F.3d at 755. Agency action becomes final once it is no longer “‘subject to further agency review,’ which occurs when the agency has ‘asserted its final position on the factual circumstances underpinning’ the agency action.” Louisiana v. U.S. Army Corps of Eng‘rs, 834 F.3d 574, 581 (5th Cir. 2016) (citation omitted) (first quoting Sackett v. EPA, 566 U.S. 120, 127 (2012); and then quoting Alaska Dep‘t of Env‘t Conservation v. EPA, 540 U.S. 461, 483 (2004)).
Texas‘s challenge appears to be directed at internal “communications between lower- and higher-ranking [Department of Homeland Security] officers regarding wire-cutting in the Del Rio Sector.” These emails, according to Texas, constitute the
But in fact, these emails discuss federal agents’ responsibilities in apprehending, processing, and inspecting noncitizens,38 as well as the agents’ corresponding authority when doing so. They set forth informal field guidance for agents for when they encounter physical objects impeding their ability to apprehend, process, and inspect noncitizens. This guidance appears deliberately open ended, as it provides different advice depending on the circumstances. And even when the guidance runs out, i.e., when a “supervisor is not available” and “anyone is in distress,” the communications advise agents to “use their judgment regarding how best to proceed.” They never require cutting through or lifting fencing or other obstacles.
The emails, i.e., the Policy, are “more like a tentative recommendation than a final and binding determination.” Franklin v. Massachusetts, 505 U.S. 788, 798 (1992). The Policy does not evidence any “settled agency position.” Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45, 48 (D.C. Cir. 2000). They clearly contemplate further decision-making in light of future circumstances. See, e.g., Louisiana, 834 F.3d at 582 (finding agency action “interlocutory” because it “anticipate[d] the necessity of further agency action“). Because the Policy‘s fact-dependent guidance does not provide “final position[s]” regarding specific “factual circumstances,” the Policy does not mark the consummation of Defendants’ decision-making process. See id. at 581 (quoting Alaska Dep‘t of Env‘t Conservation, 540 U.S. at 483).
Texas initially attempts to satisfy its burden on the first Bennett prong by stating that Defendants “all but conceded” that the Policy marks the consummation of the decision-making process. It provides no citation to the briefs or the record for this alleged concession, however, and Defendants appear to contest this point.
Texas also references its “mangled fencing.” The challenge it brings specifically concerns the Policy, not various instances of Defendants cutting the concertina wire. Notably, “identifying specific allegedly improper” agency conduct does not permit Texas to challenge an “entire” pattern or practice, see Sierra Club v. Peterson, 228 F.3d 559, 567 (5th Cir. 2000) (en banc), because that conduct is insufficiently “discrete” to be agency action. See City of New York v. U.S. Dep‘t of Def., 913 F.3d 423, 431 (4th Cir. 2019) (distinguishing “discrete acts” from “programmatic challenges“). Supporting this challenge with instances in which Defendants cut Texas‘s fencing constitutes “the kind of broad programmatic attack” the Supreme Court has previously rejected. See Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004); see also Indep. Equip. Dealers Ass‘n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004) (Roberts, J.) (“‘[A]gency action’ undoubtedly has a broad sweep. But . . . the term is not so all-encompassing as to authorize us to exercise ‘judicial review over’ everything
2
The second Bennett prong requires courts to ascertain if agency action “either determine[s] ‘rights or obligations’ or produce[s] ‘legal consequences.‘” Texas v. Biden, 10 F.4th 538, 550 (5th Cir. 2021) (per curiam) (quoting EEOC, 933 F.3d at 441). Agency action satisfies this prong if, instead of “adversely affect[ing]” the complainant, it “only affects” the complainant‘s “rights adversely on the contingency of future administrative action.” Rochester Tel. Corp. v. United States, 307 U.S. 125, 130 (1939); see Nat‘l Pork, 635 F.3d at 756 (“If the practical effect of the agency action is not a certain change in the legal obligations of a party, the action is non-final for the purpose of judicial review.” (emphasis added) (brackets omitted) (quoting Nat‘l Ass‘n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005))). A determination regarding any such “rights, obligations, or legal consequences must be new,” Texas v. Rettig, 987 F.3d 518, 529 (5th Cir. 2021)—if agency action “‘merely restates’ a statutory requirement or ‘merely reiterates what has already been established,‘” it is nonfinal, Becerra, 89 F.4th at 540 (brackets omitted) (quoting Nat‘l Pork, 635 F.3d at 756).
The Policy provides guidance to federal agents when they encounter physical impediments while apprehending, processing, and inspecting noncitizens. It does not reflect “new” determinations of “rights, obligations, or legal consequences.” See Rettig, 987 F.3d at 529; see also Indep. Equip., 372 F.3d at 427 (holding that courts lack authority “to review claims where ‘an agency merely expresses its view of what the law requires of a party, even if that view is adverse to the party‘” (citation omitted)). As well, there is no guarantee that the Policy will adversely affect Texas. See Nat‘l Ass‘n of Home Builders v. U.S. Army Corps of Eng‘rs, 417 F.3d 1272, 1278 (D.C. Cir. 2005) (stating that agency action is nonfinal if it does not “ha[ve] a ‘direct and immediate effect on the day-to-day business’ of the party challenging it” (original alterations omitted) (quoting FTC v. Standard Oil Co., 449 U.S. 232, 239 (1980))). This means the Policy does not compel Texas “either to alter its conduct[] or expose itself to potential liability.” See EEOC, 933 F.3d at 446. Cumulatively, these considerations demonstrate that the Policy does not “determine ‘rights or obligations’ or produce ‘legal consequences.‘” See Biden, 10 F.4th at 550 (quoting EEOC, 933 F.3d at 441).
Texas advances two reasons for its claim that the Policy determines rights or obligations or produces legal consequences. It first contends the Policy binds Defendants’ staff to a legal position that produces legal consequences. Texas appears to contend that the problem stems from the fact that Defendants’ “interpretation of statutory
Second, Texas contends the Policy satisfies the second Bennett prong because “every policy must be implemented.” As previously noted, the agency action Texas challenges is the Policy, not various instances of Defendants cutting Texas‘s fencing. If Texas wishes to challenge specific applications of the Policy, it may do so on a case-by-case basis. See Lujan, 497 U.S. at 894. But challenging how Defendants implement the Policy is different from Texas‘s current challenge to the Policy itself. Cf. Turtle Island Foods, S.P.C. v. Strain, 65 F.4th 211, 218–19 (5th Cir. 2023) (distinguishing facial and as-applied constitutional challenges). Additionally, Texas‘s contention incorrectly assumes that the Policy will require Defendants to cut through or lift Texas‘s fencing. See Am. Airlines, Inc. v. Herman, 176 F.3d 283, 288 (5th Cir. 1999) (“[T]he Supreme Court has defined a nonfinal agency order as one that ‘does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action.‘” (quoting Rochester Tel., 307 U.S. at 130)). This not apparent from the face of the Policy—in fact, the record evidence shows that it may never be necessary to cut through fencing. See, e.g., Lujan, 497 U.S. at 892–93. And this contention also assumes that Texas will keep its newly installed fencing in place. Taken to its logical conclusion, Texas‘s assertion would do away with the concept of “final” agency action altogether: if implementation of a policy makes it final and all policies must be implemented, then any policy an agency promulgates will necessarily constitute final agency action.39 See, e.g., Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 228 (D.C. Cir. 2007) (determining an agency policy to be nonfinal agency action); Ctr. for Auto Safety v. NHTSA, 452 F.3d 798, 807–08 (D.C. Cir. 2006) (same).
Because Texas has not satisfied its burden to show that the Policy meets either Bennett prong, it has not demonstrated that the Policy constitutes final agency action. Absent final agency action, jurisdiction to consider the Policy is lacking and Texas cannot establish a substantial likelihood of success on the merits of its claim.
Texas also contends that judicial review is not precluded under
Section 701(a) specifies when judicial review of agency action is precluded. Relevant here,
To determine whether
“Section 701(a)(2) is “‘very narrow’ and applies only ‘in . . . rare instances,‘” Ellison v. Connor, 153 F.3d 247, 251 (5th Cir. 1998) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)), but “rare does not mean never,” Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 631 (D.C. Cir. 2020). See Webster, 486 U.S. at 608 (Scalia, J., dissenting) (“[T]here are many governmental decisions that are not at all subject to judicial review.“); see also, e.g., FDIC v. Bank of Coushatta, 930 F.2d 1122, 1129 (5th Cir. 1991).
The Supreme Court has made clear that in the immigration context, “courts generally lack meaningful standards for assessing the propriety of enforcement choices.” United States v. Texas, 599 U.S. 670, 679 (2023); see, e.g., Arizona v. Biden, 40 F.4th 375, 394 (6th Cir. 2022) (Sutton, C.J., concurring) (“The Guidance represents the Department‘s effort at implementing
This court may grant Texas the injunctive relief it seeks only if
C
Texas claims that, if not a final agency action, the Policy is ultra vires action. According to Texas, “the agency action irreparably harms [Texas], and [Texas‘s] injuries are in the zone of interests sought to be protected by the APA.”
Texas‘s complaint, request for injunctive relief, and briefing allege an APA ultra vires claim for which final agency action is required. See Ala.-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 489 (5th Cir. 2014). Because Texas has not demonstrated that the Policy constitutes final agency action, any ultra vires claim it asserts under the APA fails for the same reasons as its claim under
“At common law, ‘the ultra vires exception to sovereign immunity provides that “where the officer‘s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions.“‘” Apter v. Dep‘t of Health & Hum. Servs., 80 F.4th 579, 587 (5th Cir. 2023) (brackets and ellipsis omitted) (quoting Danos, 652 F.3d at 583). It was “the ‘main weapon in the arsenal for attacking federal administrative action‘” “[l]ong before the APA.” Fed. Express Corp., 39 F.4th at 763 (citation omitted).
Common-law ultra vires claims address “situations in which an agency has exceeded its delegated powers or ‘on its face’ violated a statute.” Kirby Corp. v. Peña, 109 F.3d 258, 269 (5th Cir. 1997). It is not enough that an agency “may have made an error of fact or law,” Physicians Nat‘l House Staff Ass‘n v. Fanning, 642 F.2d 492, 496 (D.C. Cir. 1980) (en banc)—ultra vires claims are cabined to “‘extreme’ agency error where the agency has ‘stepped so plainly beyond the bounds of its statutory authority, or acted so clearly in defiance of it, as to warrant the immediate intervention of an equity court,‘” Fed. Express Corp., 39 F.4th at 764 (brackets omitted) (quoting Griffith, 842 F.2d at 493). See Herman, 176 F.3d at 293 (“[A]ccess to the courts is accorded only if the agency‘s interpretation ‘is infused with error which is of a summa or magna quality as contraposed to decisions which are simply cum error. Only the egregious error melds the agency‘s decision into justiciability. Lesser malignancies thwart the jurisdiction of the courts.‘” (original alterations omitted) (quoting United States v. Feaster, 410 F.2d 1354, 1368 (5th Cir. 1969))). That is why, “[t]ime and again, courts have stressed that ultra vires review has ‘extremely limited scope.‘” Changji Esquel Textile Co. Ltd. v. Raimondo, 40 F.4th 716, 721–22 (D.C. Cir. 2022) (citation omitted); see, e.g., Monroe Auto Equip. Co. v. NLRB, 511 F.2d 611, 614 (5th Cir. 1975) (finding that the ultra vires exception “opens the door seldom and then only slightly“); Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009) (Kavanaugh, J.) (“A [common-law ultra vires] claim is essentially a Hail Mary pass— . . . the attempt rarely succeeds.“).
Texas contends that “Defendants’ destruction of [its] property [cannot] be justified by any authority that federal law grants Defendants,” further claiming that “th[is] is enough to show ultra vires conduct.” But Defendants cite several federal authorities that, at a minimum, arguably authorize their actions. While Texas disagrees with Defendants’ interpretation of these authorities, this disagreement demonstrates the difficulty with common-law ultra vires claims—a “dispute over statutory interpretation or challenged findings of fact” does not give rise to such claims. Kirby Corp., 109 F.3d at 269 (citation omitted). At most, the authorities Defendants cite are “vague,” and therefore “not sufficiently clear and mandatory to warrant non-APA review.” Nat‘l Ass‘n of Postal Supervisors v. USPS, 26 F.4th 960, 971–72 (D.C. Cir. 2022); see, e.g., Paladin Cmty. Mental Health Ctr. v. Sebelius, 684 F.3d 527, 532–33 (5th Cir. 2012). In short, Texas has not demonstrated that it is substantially likely to succeed on the merits of its common-law ultra vires claim because it
Texas has not shown that the purported agency action is subject to judicial review under
III
Texas also seeks injunctive relief for its trespass-to-chattels claim, which arises under Texas law. Texas contends
It is a “familiar doctrine” that “the sovereign cannot be sued in [its] own courts without [its] consent.” The Siren, 74 U.S. (7 Wall.) 152, 153–54 (1868); see THE FEDERALIST NO. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” (emphasis omitted)). This doctrine—sovereign immunity—shields the United States, as well as its agencies and the officers of those agencies acting in their official capacities, from suit. Simons v. Vinson, 394 F.2d 732, 736 (5th Cir. 1968). “The federal government enjoys complete sovereign immunity except as it has consented to be sued and consented to submit to liability.” Zayler v. Dep‘t of Agric. (In re Supreme Beef Processors, Inc.), 468 F.3d 248, 255 (5th Cir. 2006) (en banc).
Congress may “waive the federal government‘s immunity” by statute. Dep‘t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48 (2024). “[N]o suit may be maintained against the United States unless the suit is brought in exact compliance with the terms of [the] statute under which the sovereign has consented to be sued.” Koehler v. United States, 153 F.3d 263, 265 (5th Cir. 1998); see United States v. Mitchell, 463 U.S. 206, 212 (1983) (“[T]he existence of consent is a prerequisite for jurisdiction.“). “[A]cts of Congress waiving sovereign immunity must be strictly construed; exceptions to sovereign immunity are not to be implied.” Stanton v. United States, 434 F.2d 1273, 1275 (5th Cir. 1970). “Section 702 of the APA waives the United States’ sovereign immunity for actions seeking non-monetary relief against federal government agencies.” Cambranis v. Blinken, 994 F.3d 457, 462 (5th Cir. 2021). Whether
Defendants are subject to Texas law.43 See FDIC v. Meyer, 510 U.S. 471, 484 (1994).
A
The second sentence of
This court has held, however, that
The initial step is therefore to determine whether judicial review is sought under (i) only “the general provisions of the APA,” or (ii) “a statutory or non-statutory cause of action that arises completely apart from the general provisions of the APA.” Ala.-Coushatta, 757 F.3d at 489. If review is sought only under the
Texas clearly seeks judicial review under the
If Texas seeks review on non-APA grounds, then the agency need not be final. Ala.-Coushatta, 757 F.3d at 489. To the extent Texas seeks judicial review via a common-law ultra vires claim, it has not established a claim that can overcome sovereign immunity, so sovereign immunity is not waived under this theory either.
Texas appears to contend that its trespass-to-chattels claim is a non-statutory cause of action. While this court has described non-statutory causes of action as those that “arise[] completely apart from the general provisions of the APA,” Ala.-Coushatta, 757 F.3d at 480, it has limited this definition to those “causes of action against federal agencies arising under
Texas does not identify any other “statutory or non-statutory” causes of action under
B
Even if Texas satisfied this first requirement, it is necessary to determine whether Defendants are subject to Texas law, as “[a]n absence of immunity does not result in liability if the substantive law in question is not intended to reach the federal entity.” See USPS v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 744 (2004). This question is analytically distinct from whether sovereign immunity has been waived. See id. at 743-44 (“[H]aving found that the [agency]‘s immunity from suit is waived . . . , the Court of Appeals relied on the same waiver to conclude that the Sherman Act applies to the [agency]. This conflated the two steps аnd resulted in an erroneous conclusion.“). It is also analytically distinct from whether Defendants are liable in this case. Determining whether Defendants are subject to Texas law is made by “look[ing] to the statute” at issue. Id. at 744; see also Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 500 n.6 (5th Cir. 2020) (en banc) (Oldham, J., concurring) (“[S]tate law generally cannot direct ‘the exercise of the powers of the federal government‘—a federal official‘s ‘conduct can only be controlled by the power that created him.‘” (original alterations omitted) (quoting McClung v. Silliman, 19 U.S. (6 Wheat.) 598, 605 (1821))).
Texas
Texas‘s main argument to the contrary appears to be that “at least two circuits have held that Section 702‘s broad waiver applies to state-law claims.” This contention treats waiver of immunity synonymously with consent to substantive liability, even though the Supreme Court makes clear that those are separate considerations. See Flamingo Indus., 540 U.S. at 743-44. Even still, the cases Texas relies on are distinguishable—both were decided in circuits in which
Texas also contends that this court should hold that
Because Texas has not shown that its law runs against Defendants, Texas has not demonstrated Congress consented to subjecting Defendants to substantive liability hеre.
* * *
Texas has not satisfied its burden to show that (1)
IV
In the alternative, Defendants argue that intergovernmental immunity also precludes Texas‘s state-law claim.
The doctrine of intergovernmental immunity “prohibit[s] state laws that either ‘regulate the United States directly or discriminate against the Federal Government or those with whom it deals.‘” United States v. Washington, 596 U.S. 832, 838 (2022) (original alterations omitted) (quoting North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality opinion)). It is derived from the Supremacy Clause, see id., and is generally considered a “component of Supremacy Clause jurisprudence,” Arizona v. Bowsher, 935 F.2d 332, 334 (D.C. Cir. 1991). See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819) (Marshall, C.J.) (“[T]he states have no power . . . to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.“). And given that the federal government “can act only through its officers and agents,” Tennessee v. Davis, 100 U.S. (10 Otto) 257, 263 (1879), federal officers performing “governmental functions” are also immune from “state regulation,”46 Penn Dairies v. Milk Control Comm‘n of Pa., 318 U.S. 261, 269 (1943). See Trump v. Vance, 591 U.S. 786, 830-31 (2020) (Alito, J., dissenting) (“[T]wo centuries of case law prohibit the States from taxing, regulating, or otherwise interfering with the lawful work of federal agencies, instrumentalities, and officers.” (footnote omitted)).
The first step in the intergovernmental-immunity analysis is determining whether the state law at issue (1) directly regulates the federal government by “controlling” its “operations,” Washington, 596 U.S. at 838, or (2) discriminates against the federal government by “‘singl[ing it] out’ for less favorable ‘treatment,‘” or “regulat[ing it] unfavorably on some basis related to [its] governmental ‘status,‘” id. at 839 (original alterations omitted) (first quoting Washington v. United States, 460 U.S. 536, 546 (1983); and then quoting North Dakota, 495 U.S. at 438). On its face, Texas tort law does not discriminate against Defendants—it does not single them out or regulate them based on their governmental status. If intergovernmental immunity applies, it must be because applying Texas tort law directly regulates Defendants by controlling its operations.
In Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956) (per curiam), the Supreme Court faced the question of whether a state law directly regulated the federal government. Leslie Miller submitted a bid to construct an air force base in Arkansas, which the United States accepted. See id. at 187-88. Arkansas subsequently sought to enforce a state law against Leslie Miller that proscribes contractors from “submitting a bid, executing a contract, and commencing work as a contractor” in Arkansas without first “obtain[ing] a license under Arkansas law.” id. at 188. Leslie Miller contested Arkansas‘s application of state law, which the Supreme Court ultimately decided in Leslie Miller‘s favor. See id. at 189-90. It determined that “[s]ubjecting a federal contractor to the Arkansas contractor license requirements would give [Arkansas]‘s licensing board a virtual power of review over the federal determination . . . and would thus frustrate . . . federal policy.” Id. at 190. The Supreme Court concluded,
[T]he immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them and pay a fee for permission to go on. Such a requirement does not merely touch the Government servants remotely by a general rule of conduct; it lays hold of them in their specific attempt to obey orders and requires qualifications in addition to those that the Government has pronounced sufficient.
Id. (quoting Johnson v. Maryland, 254 U.S. 51, 57 (1920) (Holmes, J.)).
Similarly, enforcing Texas tort law against Defendants constitutes an effort to control federal operations. The tort law Texas seeks to apply bears directly on how Defendants execute the laws they are charged with implementing. The relief Texas requests—enjoining Defendants
Texas argues that its lawsuit does not violate intergovernmental immunity because it is acting as a proprietor rather than a regulator. It is true that Texas “possess[es] the rights of a proprietor, and had political dominion and sovereignty over [its territories].” Fort Leavenworth Ry. v. Lowe, 114 U.S. 525, 527 (1885). But these rights, as discussed above, do not entitle Texas to “a virtual power of review” of Defendants’ immigration-enforcement operations. See Leslie Miller, 352 U.S. at 190. And the cases cited to distinguish a state acting as a proprietor rather than a regulator discuss a state‘s participation in the marketplace; they do not consider what a state can do as a property owner. See Am. Trucking Associations, Inc. v. City of Los Angeles, Cal., 569 U.S. 641, 651 (2013) (“The Port here has not acted as a private party, contracting in a way that the owner of an ordinary commercial enterprise could mimic. Rather, it has forced terminal operators—and through them, trucking companies—to alter their conduct by implementing a criminal prohibition punishable by time in prison.“); Dep‘t of Revenue of Ky. v. Davis, 553 U.S. 328, 345 (2008) (“The failure to appreciate that regulation by taxation here goes hand in hand with market participation by selling bonds allows the Davises to advocate the error of focusing exclusively on the Commonwealth as regulator and ignoring the Commonwealth as bondseller, . . . just as the state court did in saying that ‘“when a state chooses to tax its citizens, it is acting as a market regulator[,]’ not as a market participant.“‘” (internal citations omitted)). Here, these cases are not implicated because the nature of Texas‘s participation in the market is not at issue.48 Texas has not shown that
V
The parties also dispute whether
In relevant part, the statute reads: “Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [the provisions in the Immigration and Nationality Act governing the inspection, apprehension, examination, and removal of noncitizens] . . . .”
Defendants cannot evade an injunction while inappropriately enforcing immigration laws.
Contrary to Texas‘s contention, the injunctive relief it seeks would operate against at least two provisions covered by
Texas also contends that the effect an injunction may have on the operation of
Additionally, Texas argues that Defendants are enforcing the Immigration and Nationality Act (INA) in violation of the statutory scheme. The INA governs all aspects of immigration into the United States, including the process of inspecting, apprehending, examining, and removing noncitizens. See
The Supreme Court has found that Texas‘s “interpretation, which makes the reach of
Because Texas has not met its burden to demonstrate
For these reasons, I respectfully dissent from reversing the district court‘s denial of a preliminary injunction.
Notes
Section 1252(f)(1) provides in full:
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
The referenced provisions in part IV are