State of Texas v. DHS

Case: 23-50869 Document: 181-1 Page: 1 Date Filed: 11/27/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

____________ Fifth Circuit

FILED

No. 23-50869 November 27, 2024

____________

Lyle W. Cayce

Clerk

State of Texas,

Plaintiff—Appellant,

versus

United States Department of Homeland Security;

Alejandro Mayorkas, Secretary, U.S. Department of Homeland

Security; United States Customs and Border Protection;

United States Border Patrol; Troy Miller, Senior Official

Performing the Duties of the Commissioner, U.S. Customs and Border

Protection; Jason Owens, in his official capacity as Chief of the U.S. Border

Patrol; Robert Danley, in his official capacity as Chief Patrol Agent, Del

Rio Sector, United States Border Patrol,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:23-CV-55

______________________________

Before Willett, Duncan, and Ramirez, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

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

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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.”

8 U.S.C. § 1357(a)(3). The fence is located in the Eagle Pass area, which in

recent years has been an epicenter of millions of unlawful entries into Texas.

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 § 702 of the Administrative Procedure Act

(“APA”). That conclusion is supported by a flood of uncontradicted circuit

precedent to which the United States has no answer. We also reject the

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United States’ alternate arguments. The injunction is not barred by

intergovernmental immunity because Texas is seeking, not to “regulate”

Border Patrol, but only to safeguard its own property. Nor, for similar

reasons, is the injunction barred by the Immigration and Nationality Act

(“INA”). Finally, Texas has satisfied the injunction factors from Winter v.

Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). Most importantly,

the United States does not even contest that Texas has shown it will likely

succeed on its state law trespass claims.

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 complaint, in instances where Defendants

have the necessary access to both sides of Texas’s c-wire for immigration law

enforcement and emergency purposes. That access must include the land

side of the c-wire fence along the international border within Shelby Park.

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1

See Sys. Fed’n No. 91, Ry. Emp. Dept., AFL-CIO v. Wright, 364 U.S. 642, 647

(1961) (“There is also no dispute but that a sound judicial discretion may call for the

modification of the terms of an injunctive decree if the circumstances, whether of law or

fact, obtaining at the time of its issuance have changed, or new ones have arisen.”).

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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

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2

The facts are taken from the findings made after the district court’s initial

preliminary injunction hearing and the subsequent hearing on limited remand.

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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 in federal court alleging common law conversion, common law

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3

Defendants are the U.S. Department of Homeland Security and its Secretary,

Alejandro Mayorkas; U.S. Customs and Border Protection; U.S. Border Patrol; Troy

Miller, Acting Commissioner of U.S. Customs and Border Protection; Jason Owens, Chief

of the U.S. Border Patrol; and Juan Bernal, Acting Chief Patrol Agent, Del Rio Sector U.S.

Border Patrol.

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trespass to chattels, and violations of the APA. Among other relief, Texas

sought a preliminary injunction based on its trespass to chattels claim. Three

days later, Texas sought a TRO. The next day, Texas notified the court that

“Defendants, knowing a motion for a TRO had already been filed, used a

forklift to seize concertina wire and smash it to the ground.”

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 reason that, in its view, Congress did not waive the United States’

sovereign immunity under 5 U.S.C. § 702. Despite this holding, the court

fully analyzed the injunction factors from Winter. Analyzing Texas’s

likelihood of success on its common law claims, the court rejected

Defendants’ arguments that they were justified in cutting the c-wire either to

detain aliens or prevent emergencies. Instead, the court found that

Defendants cut the wire “for no apparent purpose other than to allow aliens

easier entrance further inland.”

The court rejected as a factual matter Defendants’ assertion that they

cut the wire to “inspect, apprehend, and process” incoming aliens.4 It found

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4

See 6 U.S.C. § 211(c)(8)(B) (setting out Commissioner’s responsibility for “the

detection, interdiction, removal, departure from the United States, short-term detention,

and transfer of persons unlawfully entering, or who have recently unlawfully entered, the

United States”); 8 U.S.C. § 1357(a)(3) (authorizing agents, “within a distance of twenty-

five miles from any . . . external boundary [of the United States] to have access to private

lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry

of aliens into the United States”).

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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

The court also rejected the contention that wire-cutting was needed

to prevent “medical emergencies.” To be sure, everyone recognized that

“[i]njury, drowning, dehydration, and fatigue are real and common perils in

this area of the border,” and so “medical emergencies justify cutting or

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5

The court also rejected Defendants’ argument that it must inspect, apprehend,

and afford statutory rights to aliens the instant they step over the international border. The

court held that aliens who were “detained shortly after unlawful entry cannot be said to

have ‘effected an entry.’” The court relied on the Supreme Court’s decision in DHS v.

Thuraissigiam, 591 U.S. 103, 139–40 (2020), which held that an alien lacks any due process

rights and discussed how an alien’s entry into the country “25 yards” changed nothing

about his legal status.

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moving [Texas’s] fence.” But such events would not justify any and all

destruction of the wire. “While an ongoing medical emergency can justify

opening the fence, the end of that exigency ends the justification.” So, for

example, “cutting the wire to address a single individual’s display of distress

does not justify leaving the fence open for a crowd of dozens or hundreds to

pass through.”6

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

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6

The court also rejected Defendants’ argument that cutting the c-wire could be

justified because it would assist in the “prevention of possible future exigencies.” Such an

exception would “swallow [the] rule.”

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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

5 U.S.C. § 702 does waive sovereign immunity for state law claims seeking

non-monetary relief. Second, the panel rejected Defendants’ argument that

the Federal Tort Claims Act (“FTCA”) “impliedly forbids” tort-based

injunctive relief under § 702. Third, the panel ruled Texas’s suit was not

barred by intergovernmental immunity because it does not “directly

regulat[e]” Border Patrol. Fourth, for similar reasons, the panel ruled

Texas’s suit was not barred by § 1252(f)(1) of the INA. See

8 U.S.C. § 1252(f)(1). Finally, the panel assessed the additional stay factors

based on the district court’s fact findings, ruling that Texas was irreparably

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harmed by Defendants’ unjustified destruction of the c-wire. See Nken v.

Holder, 556 U.S. 418, 434 (2009).7

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

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7

Given its disposition, the panel did not need to reach Texas’s APA claims.

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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

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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”

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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 that time, Mexican officials had also rescued two other

distressed aliens and had them on the Mexican side of the river. Finally, when

Border Patrol approached Texas officials in the park, the federal officers did

not act as if any emergency were underway but “were instead professional

and calm.”

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

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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 v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008). 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,

5 U.S.C. § 702 waives sovereign immunity on its state law claims for

injunctive relief. Because the district court found the Winter factors

otherwise favored Texas, Texas argues it is entitled to a preliminary

injunction. For their part, Defendants dispute that § 702 waives immunity

and, additionally, raise alternate grounds for affirmance under

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8

As explained in Part IV infra, however, we do rely on the supplemental findings

to modify the preliminary injunction in one respect—specifically, to require that Border

Patrol have access to both sides of the c-wire in Shelby Park.

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intergovernmental immunity, the INA, and the remaining Winter factors.

We address each argument in turn.

A. Section 702 Waiver

We begin with Texas’s argument that, contrary to the district court’s

ruling, § 702 of the APA waives sovereign immunity for its common law

claims.

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 “clear statement.” Dep’t of Agric. v.

Kirtz, 601 U.S. 42, 48–49 (2024).

We first examine § 702’s text, then turn to the precedents

interpreting it, and finally address Defendants’ argument under the FTCA.

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 action 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[.]

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5 U.S.C. § 702. Texas’s lawsuit checks all of § 702’s boxes. Texas claims it

has been “adversely affected” by “agency action,” whose definition includes

an agency’s “destruction . . . of property.” See id. § 551(13), (10)(D). Its suit

was brought as “an action” in federal court; it “seek[s] relief other than

monetary damages”; and it “stat[es] a claim” that a federal agency’s officials

and employees “acted or failed to act in an official capacity or under color of

legal authority.” Id. § 702. Accordingly, § 702 directs that Texas’s suit

“shall not be dismissed nor relief therein be denied on the ground that it is

against the United States.” That should end the matter.9

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9

The dissent argues that § 702 does not waive sovereign immunity because Texas

fails to identify any “final agency action.” Dissent at 21. We disagree. As the dissent

acknowledges, when a plaintiff seeks review of agency action pursuant to a “non-statutory

cause of action that arises completely apart from the general provisions of the APA,”

“[t]here is no requirement of ‘finality.’” Alabama-Coushatta Tribe of Tex. v. U.S., 757 F.3d

484, 489 (5th Cir. 2014) (citations omitted). That principle governs here. In addition to its

substantive APA and ultra vires claims, Texas seeks to enjoin agency action under a state

law trespass-to-chattels claim. That claim does not arise under the APA, and so the final

agency action requirement is inapplicable. See, e.g., Apter v. Dep’t of Health and Human

Servs., 80 F.4th 579, 589 (5th Cir. 2023) (“When a plaintiff uses the APA to assert a ‘non-

statutory cause of action,’” he “must identify some ‘agency action’ affecting him in a

specific way,” but “[t]he action need not be final.” (quoting Alabama-Coushatta, 757 F.4th

at 489) (emphasis added)). And, as noted, Texas easily meets the general “agency action”

requirement by alleging that border agents have repeatedly cut or removed its c-wire. See

5 U.S.C. §§ 551(13), (10)(D) (agency action includes “destruction . . . of property”).

The dissent also argues that Texas’s trespass-to-chattels claim cannot qualify as a

non-statutory claim under § 702 because it is a “state-law claim” that does not arise under

28 U.S.C. § 1331. Dissent at 21. We disagree. The dissent cites no authority for that

proposition. The three cases the dissent cites—our Alabama-Coushatta decision and

decisions from the Third and D.C. Circuits—do not address the issue. They recognize only

that an equitable claim under § 1331 qualifies as a non-statutory claim under § 702,

something no one disputes. What the dissent overlooks, however, is that at least four

circuits (including later decisions from the Third and D.C. Circuits) expressly recognize

that § 702 also waives immunity for state-law equitable claims such as Texas’s trespass

claim. See infra III.A.2 (discussing Perry Cap. v. Mnuchin, 864 F.3d 591, 620 (D.C. Cir.

2017); Treasurer of New Jersey v. U.S. Dep’t of Treasury, 684 F.3d 382, 389–90, 400 n.19

(3d Cir. 2012); S. Delta Water Agency v. U.S. Dep’t of Interior, Bureau of Reclamation, 767

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The district court thought § 702 was not plain enough, however.

What was lacking, it reasoned, was precedent confirming that “an action”

includes state or common law trespass-to-chattels claims. That asks too

much. It is true, of course, that courts construe ambiguities strictly in favor

of sovereign immunity. See Sebelius v. Cloer, 569 U.S. 369, 380–81 (2013). But

there is no ambiguity here. By its terms, § 702 waives immunity for any

“action” seeking nonmonetary relief in federal court. See Richard

Fallon et al., Hart & Wechsler’s The Federal Courts

and the Federal System 902 (7th ed. 2015) (§ 702 waiver applies to

“any suit”). And the Supreme Court recently reaffirmed that Congress

needs no “magic words” to waive sovereign immunity. Kirtz, 601 U.S. at 48–

49 (quoting FAA v. Cooper, 566 U.S. 284, 291 (2012)). To the contrary, a

statute must be “unmistakably clear” that “in so many words . . . it is

stripping immunity from a sovereign entity.” Id. (quoting Financial Oversight

and Management Bd. for P.R. v. Centro De Periodismo Investigativo, Inc., 598

U.S. 339, 347 (2023)). Section 702 meets that bar, and its text does not

suggest it excludes state or common law claims.

Defendants’ counterarguments fail. They argue § 702 applies only to

federal causes of action, whether common, statutory, or constitutional. As

explained, though, the text does not support that reading. We cannot rewrite

§ 702 to say “a federal action” when Congress only wrote “an action.” See

Elec. Storage Battery Co. v. Shimadzu, 307 U.S. 5, 14 (1939) (“We cannot thus

rewrite the statute” by “read[ing] into the law words which plainly are

missing.”); United States v. Shear, 962 F.2d 488, 495 (5th Cir. 1992) (refusing

to “effectively rewrite the statute” by reading words into it).

_____________________

F.2d 531, 536 (9th Cir. 1985); and Gilmore v. Weatherford, 694 F.3d 1160, 1166 n.1 (10th Cir.

2012)).

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When Congress wants to add the qualifier “federal,” it knows how.

Elsewhere in § 702 itself, Congress did just that. See § 702 (“Provided, That

any mandatory or injunctive decree shall specify the Federal officer or

officers . . . personally responsible for compliance.”). That word choice

powerfully suggests that, earlier in the same provision, Congress chose not

to qualify “action” with “federal.” See Romag Fasteners, Inc v. Fossil, Inc.,

590 U.S. 212, 215 (2020) (“Nor does this Court usually read into statutes

words that aren’t there. It’s a temptation we are doubly careful to avoid when

Congress has (as here) included the term in question elsewhere in the very same

statutory provision.” (emphasis added)); see Antonin Scalia & Bryan

Garner, Reading Law 107 (2012) (“The expression of one thing

implies the exclusion of others.”).10

Finally, Defendants point to Congress’s simultaneous elimination of

the amount-in-controversy requirement for federal question jurisdiction,

arguing this shows § 702 meant to waive immunity for federal actions only.

See Pub. L. No. 94-574, 90 Stat. 2721 (1976). We disagree. Statutory history

(unlike legislative history) can sometimes illuminate a statute’s meaning. See

Thomas v. Reeves, 961 F.3d 800, 807 n.8 (5th Cir. 2020); In re Crocker, 941

F.3d 206, 213 (5th Cir. 2019). But the history Defendants cite does not do

that here. The bare fact of Congress’s eliminating the amount-in-controversy

_____________________

10

Moreover, when Congress amended the APA in 1976 to waive sovereign

immunity for an “action” seeking nonmonetary relief in federal court, see Pub. L. No. 94-

574, 90 Stat. 2721 (1976) (codified as amended at 5 U.S.C. § 702), federal courts had long

exercised jurisdiction over state claims via pendent (now supplemental) jurisdiction. See

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966); Levering & Garrigues Co. v.

Morrin, 289 U.S. 103, 106–08 (1933). Congress is presumed to be aware of that legal

background when amending a statute. See Cannon v. Univ. of Chi., 441 U.S. 677, 696–97

(1979) (elected officials are presumed to know the law when legislating); Ryan v. Gonzales,

568 U.S. 57, 66 (2013) (“We normally assume that, when Congress enacts statutes, it is

aware of relevant judicial precedent.” (quoting Merck & Co. v. Reynolds, 559 U.S. 633, 648

(2010))).

18

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threshold for federal jurisdiction tells us nothing that would override the

plain import of § 702’s text.

2. Precedent interpreting § 702

Texas’s waiver argument is also strongly supported by the cases

interpreting § 702.

Start with our own decisions. We have never suggested that § 702

excludes state or common law claims. To the contrary, we have said that

§ 702 “generally waives” sovereign immunity, Apter v. HHS, 80 F.4th 579,

589 (5th Cir. 2023) (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 567 U.S. 209, 215 (2012)), including for “suits seeking

nonmonetary relief through nonstatutory judicial review of agency action.”

Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985).11

Every one of our sister circuits has construed § 702’s plain language

as a waiver of sovereign immunity for all equitable actions, regardless of

whether they arise under the APA or other federal law. See, e.g., Puerto Rico

_____________________

11

See also Gulf Restoration Network v. McCarthy, 783 F.3d 227, 232 n.22 (5th Cir.

2015) (§ 702 “waives sovereign immunity for all claims ‘other than money damages’”

(quoting 5 U.S.C. § 702)); Doe v. United States, 853 F.3d 792, 798–99 (5th Cir. 2017)

(explaining § 702 “broaden[s] the avenues for judicial review of agency action by

eliminating the defense of sovereign immunity” in nonmonetary suits (quoting Bowen v.

Massachusetts, 487 U.S. 879, 891–92 (1988)); Hous. Cmty. Hosp. v. Blue Cross Shield of Tex.,

Inc., 481 F.3d 265, 278 (5th Cir. 2007) (“Now that 5 U.S.C. § 702 exposes the United

States to equitable relief . . . [t]he only portion of the United States’ original immunity from

suit that Congress continues to assert is a right not to pay damages[.]” (emphases added)

(quoting Pullman Const. Indus., Inc. v. United States, 23 F.3d 1166, 1168 (7th Cir. 1994), as

amended on denial of reh’g (May 19, 1994)); Fort Bend County v. U.S. Army Corp of Eng’rs,

59 F.4th 180, 192 (5th Cir. 2023) (holding that § 702 “has been satisfied in that the

complaint alleges plaintiffs have been aggrieved by agency action, that the suit is not one

for money damages, and that the injury arises from an officer or employee” of the federal

government).

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v. United States, 490 F.3d 50, 57–58 (1st Cir. 2007) (holding § 702 waives

sovereign immunity for “all equitable actions” and thus “applies to any suit

whether under the APA or not” (quoting Trudeau v. FTC, 456 F.3d 178, 186

(D.C. Cir. 2006) (noting D.C. Circuit has “repeatedly . . . rejected” the

argument § 702 waiver applies only to APA actions))).12 And at least four of

_____________________

12

See also B.K. Instrument, Inc. v. United States, 715 F.2d 713, 724–25 (2d Cir. 1983)

(noting Congress stated that “the time [has] now come to eliminate the sovereign

immunity defense in all equitable actions for specific relief against a Federal agency or

officer acting in an official capacity” (alteration in original) (quoting H.R. Rep. No. 1656,

94th Cong., 2d Sess. 9, reprinted in 1976 U.S. Code Cong. & Admin. News 6121, 6129));

Stehney v. Perry, 101 F.3d 925, 932–33 (3d Cir. 1996) (holding § 702 waives sovereign

immunity when a party seeks nonmonetary relief and a separate statute does not preclude

relief); Randall v. United States, 95 F.3d 339, 346 (4th Cir. 1996) (explaining that “[t]he

waiver of sovereign immunity in the APA is limited to suits seeking relief ‘other than

money damages’” (quoting 5 U.S.C. § 702)); Hostetter v. United States, 739 F.2d 983, 985

(4th Cir. 1984) (“In Section 702 Congress has waived the defense of sovereign immunity

in such nonstatutory review cases in which nonmonetary relief is sought . . . .”); Muniz-

Muniz v. U.S. Border Patrol, 741 F.3d 668, 672 (6th Cir. 2013) (joining “all of our sister

circuits” in holding that “§ 702’s waiver of sovereign immunity extends to all non-

monetary claims against federal agencies” (emphasis added)); Michigan v. U.S. Army Corps

of Eng’rs, 667 F.3d 765, 775–76 (7th Cir. 2011) (“When Congress amended the APA in

1976 it gave every indication that it intended to provide specific relief for all nonstatutory

claims against the government.”) (emphasis added); Blagojevich v. Gates, 519 F.3d 370, 371

(7th Cir. 2008) (holding that “Congress has waived sovereign immunity for most forms of

prospective relief”); Red Lake Band of Chippewa Indians v. Barlow, 846 F.2d 474, 476 (8th

Cir. 1988) (holding that “the waiver of sovereign immunity contained in section 702 . . . is

dependent on the suit against the government being one for non-monetary relief”);

Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989) (“Congress

stated that ‘the time [has] now come to eliminate the sovereign immunity defense in all

equitable actions for specific relief against a Federal agency or officer acting in an official

capacity’” (alteration in original) (quoting H.R. Rep. No. 1656, 94th Cong., 2d Sess. 9,

reprinted in 1976 U.S.Code Cong. & Admin.News 6121, 6129)); Kansas v. United States, 249

F.3d 1213, 1222 (10th Cir. 2001) (“Section 702 generally waives the sovereign immunity of

the United States in agency review actions ‘seeking relief other than money damages.’”

(quoting 5 U.S.C. § 702)); Tinnerman v, United States, No. 21-14023, 2022 WL 3654844,

at *4 (11th Cir. Aug. 25, 2022) (holding that § 702 “operates as a general waiver of

sovereign immunity for suits against the United States seeking nonmonetary relief, even if

the claim does not arise under the APA.” (citing Panola Land Buyers Ass’n v. Shuman, 762

F.2d 1550, 1555 (11th Cir. 1985)); Delano Farms Co. v. Ca. Table Grape Comm’n, 655 F.3d

20

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those circuits have logically taken that principle to mean that the § 702

waiver applies to state law claims for nonmonetary relief. See, e.g., Perry Cap.

v. Mnuchin, 864 F.3d 591, 620 (D.C. Cir. 2017) (“Treasury’s argument that

§ 702 does not waive its immunity from suit for state law claims is foreclosed

by our precedent.”).

For instance, the Third Circuit held that § 702 allowed New Jersey’s

claim against the Treasury under that state’s unclaimed property acts,

rejecting “the distinction that the Government makes between federal and

state law in either the text or the history of section 702.” Treasurer of New

Jersey v. U.S. Dep’t of Treasury, 684 F.3d 382, 389–90, 400 n.19 (3d Cir.

2012). The Ninth Circuit has similarly permitted application of state water

laws against the Department of the Interior under § 702. See S. Delta Water

Agency v. U.S. Dep’t of Interior, Bureau of Reclamation, 767 F.2d 531, 536 (9th

Cir. 1985) (holding § 702 waived immunity because “[c]ontrary to federal

defendants’ contentions, the federal government must acquire water rights

in accordance with state law”). And the Tenth Circuit has twice explained

that it is immaterial to § 702 whether a claim arises under the APA or

common law. See Gilmore v. Weatherford, 694 F.3d 1160, 1166 n.1 (10th Cir.

2012) (Gorsuch, J., on panel) (explaining “[w]hether plaintiffs’ claims arise

under the APA or common law is [] immaterial with respect to the sovereign

_____________________

1337, 1344 (Fed. Cir. 2011) (holding that § 702 “waives sovereign immunity for non-

monetary claims against federal agencies, subject [only] to the limitations” that § 702 does

not “affect[] other limitations on judicial review” or permit the court to “grant relief if any

other statute . . . expressly or impliedly forbids the relief which is sought” (cleaned up));

Aetna Cas. & Sur. Co. v. United States, 71 F.3d 475 (2d Cir. 1995) (allowing plaintiff

asserting tortious conversion against IRS to amend complaint to state a claim under § 702).

21

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immunity analysis[,]” because “[u]nder 5 U.S.C. § 702, the United States

waives sovereign immunity as to [such] actions”).13

For their part, Defendants fail to cite a single circuit precedent

supporting their view that the § 702 waiver applies only to federal claims.14

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, § 702 does not apply here because the

FTCA “impliedly forbids” waiving immunity for state tort claims seeking

injunctive relief. This argument fails.

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.”

_____________________

13

See also Fletcher v. United States, 160 F. App’x 792, 796–97 (10th Cir. 2005)

(“[P]laintiffs’ reliance upon common law trust principles in pursuit of their [§ 702] claim

is immaterial [for sovereign immunity purposes], as here they seek specific relief other than

money damages; and federal courts have jurisdiction to hear such claims under the APA.”

(cleaned up)). The Sixth Circuit has held that § 702’s waiver applies to a suit to enjoin a

U.S. Forest Service policy based on both federal and state law. See Herr v. U.S. Forest Servs.,

803 F.3d 809, 812, 818–19 (6th Cir. 2015). The court seemed to assume that the waiver

applied equally to the state claim but without discussing the issue specifically.

14

And, as discussed, neither does the dissent. See supra note 9. The dissent argues

the circuits applying § 702’s waiver to state and common-law claims are irrelevant because,

unlike ours, they maintain a § 702 waiver “does not require final agency action.” Dissent

at 23. We disagree. As our court has recognized, the final agency action requirement does

not apply here because Texas seeks an injunction pursuant to a non-statutory claim. See,

e.g., Apter, 80 F.4th at 589 (“When a plaintiff uses the APA to assert a ‘non-statutory cause

of action,’” he “must identify some ‘agency action’ affecting him in a specific way,” but

“[t]he action need not be final.” (quoting Alabama-Coushatta, 757 F.4th at 489) (emphasis

added)). And, as discussed, Texas has easily shown that Defendants’ destruction of its c-

wire constitutes “agency action” specifically affecting Texas. See

5 U.S.C. §§ 551(13), (10)(D) (agency action includes “destruction . . . of property”).

22

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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

28 U.S.C. § 2672 (emphasis added). But it neither says nor implies anything

about prospective or nonmonetary relief. Every substantive section of the

statute deals only with money damages.15 The FTCA gives no indication,

implicit or otherwise, that it meant to preclude prospective relief in general,

much less the nonmonetary relief expressly authorized by § 702.

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

_____________________

15

See § 2672 (requiring written approval from the Attorney General for any

“award, compromise, or settlement in excess of $25,000” and dictating which budgets

payouts must come from); § 2673 (requiring the head of federal agencies to report annually

to Congress “all claims paid by it” including, among other things “the amount claimed”

and “the amount awarded”); § 2674 (making the United States liable for “tort claims, in

the same manner and to the same extent as a private individual under like circumstances”

but not for “interest prior to judgment or for punitive damages” unless the case involved a

victim’s death and the local law construes such damages as “only punitive in nature” in

which case “the United States shall be liable for actual or compensatory damages,

measured by the pecuniary injuries resulting from such death”); § 2675(a) (requiring that

plaintiffs first present their “claim against the United States for money damages” to the

agency and only permitting a suit if the agency denies the claim); § 2675(b) (restricting any

action in federal court to the “amount of the claim presented to the federal agency” unless

newly discovered evidence not reasonably discoverable supports a different amount);

§ 2675(c) (“Disposition of any claim by the Attorney General or other head of a federal

agency shall not be competent evidence of liability or amount of damages.”); § 2676

(explaining that a judgment in an action for money damages “shall constitute a complete

bar to any action by the claimant, by reason of the same subject matter” against the

government employee); § 2678 (restricting attorney fees to “25 per centum of any

judgment” or “20 per centum of any award, compromise, or settlement”); § 2679(b)(1)

(providing that “[t]he remedy against the United States provided by [the FTCA] . . . is

exclusive of any other civil action or proceeding for money damages”(emphasis added)).

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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 § 702 Congress “intended to provide specific

relief for all nonstatutory claims against the government.” Michigan, 667 F.3d

at 775–76. Accordingly, the court rejected the argument that “the FTCA

implicitly prohibits injunctive relief in tort suits against the United States”

as “read[ing] too much into congressional silence.” Id. at 775. Finally, the

Tenth Circuit aptly explained that § 702 and the FTCA should be read in

harmony. “Congress has limited the relief available under the APA by

waiving sovereign immunity only as to suits ‘seeking relief other than money

damages,’” whereas “[t]he raison d’etre of the FTCA . . . is to waive

sovereign immunity to suits seeking relief via money damages.” Franklin

Sav. Corp. v. United States, 180 F.3d 1124, 1140 (10th Cir. 1999) (quoting

5 U.S.C. § 702).

Defendants give us no reason to split from these circuits.

***

To sum up: § 702 clearly waives the United States’ sovereign

immunity for Texas’s common law claims. The district court legally erred in

ruling otherwise.16

_____________________

16

The dissent suggests that even after establishing a § 702 waiver, Texas must

show Defendants are substantively liable. Dissent at 18–19, 22–23. Not so. It is true, of

course, that a waiver of sovereign immunity does not itself provide a cause of action. See In

re Supreme Beef Processors, Inc., 468 F.3d 248, 254 (5th Cir. 2006). But the cases cited by

24

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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.”

_____________________

the dissent address whether the plaintiffs had any valid cause of action for their asserted

claims. For example, in FDIC v. Meyer, the question was whether the plaintiff could sue the

federal defendants under Bivens. 510 U.S. 471, 483–84 (1994). Similarly, in U.S. Postal

Service v. Flamingo Industries (USA) Ltd., the Supreme Court ruled that Congress waived

the Postal Service’s immunity from suit but nevertheless held that the Postal Service was

not subject to substantive liability under the Sherman Act. 540 U.S. 736, 743–44 (2004).

Unlike in those cases, there is no issue as to whether the underlying substantive law here—

state common law—furnishes Texas with a cause of action. The only question is whether

sovereign immunity has been waived against those state law claims.

Finally, then-Judge Kavanaugh’s concurrence in El-Shifa Pharm. Indus. Co. v.

United States, is not to the contrary. 607 F.3d 836, 854 (D.C. Cir. 2010) (en banc)

(Kavanaugh, J., concurring in the judgment). 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 § 702.

Moreover, the D.C. Circuit has subsequently held that § 702’s waiver does extend to state

law claims. Perry Cap., 864 F.3d at 620.

25

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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

_____________________

17

At the outset, we note that Defendants rely heavily on outdated precedent. They

cite older cases invalidating state laws because they increased the Federal Government’s

operating costs. See, e.g., United States v. County of Fresno, 429 U.S. 452, 460 (1977). Those

cases are no longer the law. See Washington, 596 U.S. at 839 (explaining “a state law

is . . . no longer unconstitutional just because it indirectly increases costs for the Federal

Government, so long as the law imposes those costs in a neutral, nondiscriminatory way”).

18

The doctrine does not apply if “Congress has consented to such regulation

through waiver.” Washington, 596 U.S. at 838–39. As explained, § 702 plainly waives

sovereign immunity for the nonmonetary relief Texas seeks here. Moreover, § 702

expressly authorizes an “injunctive decree” against “Federal officers.” Ibid. In any event,

we need not rely on waiver because, as we explain infra, Texas’s lawsuit does not seek to

“regulate” federal officers within the meaning of the doctrine.

19

This distinguishes our case from Leslie Miller, Inc. v. Arkansas, 352 U.S. 187

(1956), on which the dissent relies heavily. See Dissent at 27. Leslie Miller dealt with a

“conflict between [a] license requirement which Arkansas places on a federal contractor

and the action which Congress and the Department of Defense have taken to [e]nsure the

reliability of persons and companies contracting with the Federal Government.” Id. at 190.

Through its licensing requirement, Arkansas was acting as a regulator, rather than as an

“ordinary proprietor.” Fort Leavenworth Ry. v. Lowe, 114 U.S. 525, 531 (1885).

20

See also Shannon v. United States, 160 F. 870, 875–76 (9th Cir. 1908) (treating

federal government’s forbidding trespass as proprietary); Denver v. Mercantile Trust Co. of

N.Y., 201 F. 790, 802–03 (8th Cir. 1912) (city’s trespass action against a company was

“proprietary, as distinguished from legislative or governmental, authority”). The dissent

tries to distinguish cases like American Trucking on the ground that they involved “a state’s

26

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court’s finding at the preliminary injunction hearing that “nobody is trying

to regulate federal law enforcement” and “nobody is prohibiting the federal

government from enforcing immigration law.” In short, Texas is not seeking

to “regulate” Defendants merely by suing to prevent trespass and property

damage.

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

_____________________

participation in the marketplace” and not “what a state can do as a property owner.”

Dissent at 29. We disagree. American Trucking discussed a state acting as a “market actor”

and a “proprietor” in the same breath. See Am. Trucking, 569 U.S. at 650 (discussing “the

State acting as a State, not as any market actor—or otherwise said, the State acting in a

regulatory rather than proprietary mode” (emphasis added)).

21

See e.g., Washington, 596 U.S. at 835 (statute that applied only to employees at

federal facilities); Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 815–17 (1989) (state

tax law favoring state employee retirees over federal); Dawson v. Steager, 586 U.S. 171, 179–

80 (2019) (same); Boeing v. Movassaghi, 768 F.3d 832, 839–43 (9th Cir. 2014) (state law

directly regulating federal nuclear cleanup efforts); Geo Grp., Inc. v. Newsom, 50 F.4th 745,

758–61 (9th Cir. 2022) (en banc) (state law prohibiting operation of private detention

facilities); United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010) (ordinance

expressly regulating military recruiters); United States v. Delaware, 958 F.2d 555, 563 (3d

Cir. 1992) (utility rate regulation of Air Force electricity rates).

22

See, e.g., South Carolina v. Baker, 485 U.S. 505, 523 (1988) (state cannot directly

tax federal government but can tax its contractors); Blackburn v. United States, 100 F.3d

1426, 1435 (9th Cir. 1996) (neutral ordinance not applicable to federal lands in Yosemite

National Park); State of Ariz. v. Bowsher, 935 F.2d 332, 334 (D.C. Cir. 1991) (state

unclaimed property laws impermissibly sought to directly regulate federal property).

27

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category does not apply because Texas has sued to preserve 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 suit does not seek

_____________________

23

See United States ex rel. Drury v. Lewis, 200 U.S. 1, 3, 7–8 (1906) (applying state

criminal law to United States Army officers); Johnson v. Maryland, 254 U.S. 51, 56 (1920)

(discussing state tort law’s application to a United States postal worker); Wilkie v. Robbins,

551 U.S. 537, 560 (2007) (discussing state tort and property law’s application to federal

Bureau of Land Management officials); Hall v. Virginia, 105 S.E. 551, 552 (Va. 1921)

(applying state traffic laws to a United States postal worker); North Carolina v. Ivory, 906

F.2d 999, 1001–02 (4th Cir. 1990) (same).

24

See also North Dakota, 495 U.S. at 434 (noting the Supreme Court “[o]ver 50

years ago . . . decisively rejected the argument that any state regulation which indirectly

regulates the Federal Government’s activity is unconstitutional” and “that view has now

been ‘thoroughly repudiated’” (and collecting cases)); Jefferson County v. Acker, 527 U.S.

423, 428 (1999) (rejecting intergovernmental immunity arguments and applying a county

tax on professional licenses to federal judges because “[i]n practice, [it] serve[d] a revenue-

raising, not a regulatory, purpose” and did not “in any way regulate[] them in the

performance of their duties”); Evansville-Vanderburgh Airport Auth. v. Delta Airlines, 405

U.S. 707, 720–21 (1972) (holding the “use and service charge” of $1 for each passenger

deplaning from a commercial aircraft for maintenance and improvement of airport was not

blocked by intergovernmental immunity because it was an incidental burden); Wilson v.

Cook, 327 U.S. 474, 486–88 (1946) (holding a state tax on lumber-severance from federal

land was not barred by intergovernmental immunity because it was an incidental burden);

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to control how Border Patrol agents carry out their duties. At most, Texas’s

seeking to preserve its own property might incidentally affect how agents do

their jobs.

The only federal duty implicated here is found in

8 U.S.C. § 1357(a)(3). That provision allows Border Patrol agents, within 25

miles of the border, to “have access to private lands, but not dwellings, for

the purpose of patrolling the border to prevent the illegal entry of aliens into

the United States.” Texas concedes Border Patrol’s right of access under

§ 1357(a)(3). What it contests, though, is whether Border Patrol is destroying

its c-wire for the “purposes” set out in that provision. The district court

concluded—after a multi-day hearing featuring live witnesses—that the

federal agents were not. Instead, agents were “cutting multiple holes in the

concertina wire for no apparent purpose other than to allow migrants easier

entrance further inland.” Moreover, they were doing so when they already

had “access” to both sides of the fence, which is what § 1357(a)(3) requires.

At most, Texas’s suit incidentally impacts how Defendants carry out

their duties under § 1357(a)(3). Yes, as all concede, Border Patrol agents may

access private property in order to prevent illegal entries. Texas’s suit would

_____________________

McHenry County v. Kwame Raoul, 44 F.4th 581, 592 (7th Cir. 2022) (holding that a state law

prohibiting state and local government officials from entering or maintaining cooperative

agreements to house aliens only incidentally burdened the Federal Government and did not

directly regulate it); K&D LLC v. Trump Old Post Office LLC, 951 F.3d 503, 507 (D.C. Cir.

2020) (intergovernmental immunity “is not boundless” and citing Johnson and Acker to

distinguish between “regulatory” laws that impermissibly control the lawful exercise of

federal power and permissible “revenue-raising” provisions that do not); Don’t Tear It

Down, Inc. v. Pa. Ave. Dev. Corp., 642 F.2d 527, 534–36 (D.C. Cir. 1980) (“Insofar as [local]

laws substantially impede federal activities or directly place ‘a prohibition on the federal

government,’ the Court has treated them as presumptively invalid under the Supremacy

Clause . . . . This is not to say that federal programs or properties are necessarily insulated

from incidental or nonburdensome local requirements.” (quoting Hancock v. Train, 426

U.S. 167, 179 (1976)).

29

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only ensure that agents’ destruction of fencing is actually in furtherance of

§ 1357(a)(3). True, that imposes a burden on agents, but it is an incidental

one that comes nowhere near the burdens courts have, in the past, found

sufficient to trigger intergovernmental immunity.25 Cf. Washington, 596 U.S.

at 839 (explaining “a state law is . . . no longer unconstitutional just because

it indirectly increases costs for the Federal Government, so long as the law

imposes those costs in a neutral, nondiscriminatory way”).

Consider a hypothetical. In addition to allowing conditional access to

private lands, § 1357(a)(3) flatly forbids agents from accessing “dwellings”

to prevent illegal entries. Suppose agents were nonetheless barging into

dwellings in violation of the statute. Would intergovernmental immunity

prevent a homeowner’s trespass suit? Of course not. And that would be true

even if the agents argued the suit sought to “control” how they were carrying

out their duties. The same is true here. Based on the district court’s findings,

the destruction of Texas’s c-wire fence was not in furtherance of § 1357(a)(3)

and so every bit as impermissible as accessing dwellings.26 Both illegal actions

_____________________

25

See, e.g., Hancock, 426 U.S. at 180 (a state permit “tantamount to prohibiting

operation of [] federal installations” impermissibly sought to control the Federal

Government); Augustine v. Dep’t of Veteran Affs., 429 F.3d 1334, 1339–40 (Fed. Cir. 2005)

(gathering cases discussing how state licensing requirements for federal employees and

contractors that control who can effectuate federal law impermissibly seek to regulate the

Federal Government); Arcata, 629 F.3d at 991 (local ordinances that “by their express

terms—prohibit military recruiters from recruiting or attempting to recruit individuals

under the age of eighteen”); Movassaghi, 768 F.3d at 839 (state law empowering local

authorities to compel federal agencies to clean up a nuclear waste site); Blackburn, 100 F.3d

at 1435 (state law seeking to compel the National Park Service to install certain signs and

safety ropes as well as operate a national park in a specific way); cf. Drury, 200 U.S. at 7–8

(permitting a state criminal law prosecution against federal officers to proceed because they

killed a man while potentially acting beyond their authority to enforce federal law); Ivory,

906 F.3d 1001–02 (enforcing traffic laws against a federal military driver because he did not

demonstrate how anything in his federal duties justified violation of these laws).

26

For that reason, we disagree with the dissent’s suggestion that a private party

“could not assert a [trespass] claim against” the federal agents here “because doing so

30

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can be enjoined by a state law trespass suit without “controlling” federal

agents’ patrol of the border.

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 Cal. Penal Code § 9501). But Immigration and Customs

Enforcement (“ICE”) relies “almost exclusively on privately operated

detention facilities” in California to house aliens. Ibid. The en banc Ninth

Circuit held that California’s law violated intergovernmental immunity by

requiring ICE “to cease its ongoing immigration detention operations in

California and adopt an entirely new approach in the state.” Id. at 758.

This case presents no such concern. Texas does not seek to prohibit

Defendants from cutting a lock or a fence when necessary under § 1357(a)(3).

It only claims that, on these facts, Defendants continuously destroyed its

property when not necessary under federal law. That is a far cry from banning

federal officials from performing necessary immigration operations within an

entire state. Geo Group involved that sort of attempted “control” of federal

employees, but this case does not.

Finally, Defendants try to smuggle in preemption. They insinuate that

intergovernmental immunity “follows from principles of federal

_____________________

would offend the Supremacy Clause.” Dissent at 29 n.15. That begs the question whether

the agents were acting in contravention of federal law, which is the question at issue. The

Supremacy Clause does not immunize federal agents from state law merely because they

work for the United States. See, e.g., Johnson, 254 U.S. at 56 (“Of course an employee of

the United States does not secure a general immunity from state law while acting in the

course of his employment.”).

31

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preemption.” That will not do. Defendants expressly disavowed a

preemption argument below—they explicitly told the district court that, in

contrast to preemption, “the better doctrine to follow is intergovernmental

immunity.” And they never raised preemption anywhere else. So, the issue

is forfeited. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

Regardless, preemption would not help Defendants. Their brief

suggests an intractable conflict between federal law and Texas’s assertion of

property rights. We fail to see any conflict. As noted, the only federal statute

in play is § 1357(a)(3), which grants agents “access to private lands” within

25 miles of the border to prevent illegal entries. Defendants cannot possibly

maintain this statute inevitably requires the destruction of Texas’s c-wire. As

Texas correctly argues, “nothing in the statute allows federal officials to

destroy private property when they have no need to do so.”

In sum, intergovernmental immunity does not bar Texas’s lawsuit.

C. INA Jurisdictional Bar

Finally, Defendants contend that § 1252(f)(1) of the INA

jurisdictionally bars us from enjoining Border Patrol from engaging in

unauthorized destruction of Texas’s c-wire. We disagree.27

The INA bars inferior courts from enjoining “the operation of”

certain immigration statutes, specifically 8 U.S.C. §§ 1221–1232. See

_____________________

27

For its part, Texas argues Defendants “waived reliance on § 1252(f)(1)” by

voluntarily submitting to an extension of the district court’s original TRO. We disagree.

Defendants merely agreed to extend the TRO for 48 hours to allow the court to conduct a

second preliminary injunction hearing. But Defendants consistently maintained that

§ 1252(f)(1) prohibited injunctive relief during those proceedings. See, e.g., CSX Transp.,

Inc. v. N.Y. State Office of Real Prop. Servs., 306 F.3d 87, 92, 94–98 (2d Cir. 2002)

(considering a party’s state sovereign immunity argument despite both parties consenting

to an extended TRO).

32

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§ 1252(f)(1).28 Plainly, though, the provision does not encompass an

injunction against statutes it does not cross-reference. See Gonzalez v. ICE,

975 F.3d 788, 814 (9th Cir. 2020) (holding Ҥ 1357(d) is not located in Part

IV, and thus § 1252(f)(1)’s limitations do not apply”); O.A. v. Trump, 404 F.

Supp. 3d 109, 158 (D.D.C. 2019) (holding § 1252(f)(1) does not bar an

injunction issued against § 1158(b)(1) since it is not a covered provision). And

as the Supreme Court suggested in dicta, “a court may enjoin the unlawful

operation of a provision that is not specified in § 1252(f)(1) even if that

injunction has some collateral effect on the operation of a covered

provision.” Garland v. Aleman Gonzalez, 596 U.S. 543, 553 n.4 (2022).

Texas does not seek to enjoin the operation of any of the provisions

listed in § 1252(f)(1). It seeks an injunction only against conduct—namely,

cutting or other destruction of its c-wire—unauthorized by § 1357(a)(3).

Accordingly, because § 1357(a)(3) is not one of the statutes referenced in

§ 1252(f)(1), the injunction Texas seeks is not barred. Such an injunction

would, at most, have only a “collateral effect on the operation” of the

covered statutes (specifically, §§ 1225 and 1226). Aleman Gonzalez, 596 U.S.

at 553 n.4. That is especially the case here, where the district court found

_____________________

28

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 8 U.S.C. §§ 1221–1232, which generally

address the admission, legal status, and removal of aliens in the United States.

33

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Defendants were cutting c-wire neither to detain aliens nor to respond to

emergencies.

Defendants respond that, in essence, they are the ultimate judges of

whether § 1252(f)(1)’s bar applies. They argue Aleman Gonzalez prohibits

injunctions of uncovered statutes that “in the Government’s view” impact its

ability to enforce the covered sections listed in § 1252(f)(1). That is badly

mistaken. Congress legislated which sections are covered by § 1252(f)(1).

The Executive Branch does not get to propose additions. See U.S. Const.

art. I, § 1 (vesting “All legislative Powers” in Congress).

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 § 1231(a)(6), a

provision squarely within § 1252(f)(1). Aleman Gonzalez, 596 U.S. at 546.

The Supreme Court reversed, holding § 1252(f)(1) prohibits courts from

granting class wide injunctive relief as to § 1231(a)(6). See id. at 550

(“[Section] 1252(f)(1) generally prohibits lower courts from entering

injunctions that order federal officials to take or to refrain from taking actions

to enforce, implement, or otherwise carry out the specified statutory

provisions.” (emphasis added)).

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 § 1252(f)(1). See id. at 551. The Court was

merely alluding to the fact that the injunctions at issue (requiring bond

hearings) were, according to the Government, contrary to the affirmative

grant of authority in § 1231(a)(6). See 8 U.S.C. § 1231(a)(6) (providing

certain aliens ordered removed “may be detained beyond the removal

period”). The Supreme Court did not, however, make “the Government”

the arbiter of which immigration statutes fall within § 1252(f)(1)’s bar. In

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Aleman Gonzalez, there was no question that the enjoined statute,

§ 1231(a)(6), fell within the bar. Here, there is no question that the enjoined

statute, § 1357(a)(3), does not. See Gonzalez v. DHS, 508 F.3d 1227, 1233 (9th

Cir. 2007) (holding injunction against unlawful application of § 1255(i) was

not barred even though it incidentally impacted reinstatement proceedings

under § 1231(a)(5)).

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 § 1251(f)(1)—specifically, 8 U.S.C. §§ 1225

and 1226. Those statutes empower agents to inspect and apprehend aliens

entering the United States. Defendants argue an injunction against wire-

cutting would “directly impede[] agents’ ability to inspect migrants under

Section 1225, as well as to apprehend and detain them under Section 1226.”

We disagree.

The district court found as a factual matter that Defendants’ duties

under §§ 1225 and 1226 would not be thwarted by the injunction. As it found,

“Border Patrol 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.”

According to those findings, Defendants did not need to cut the wire in order

to carry out their duties to inspect and apprehend aliens. The fact that they

cut the wire anyway did not convince the district court that doing so was

necessary to enforce those covered sections of the INA. We see no error in

that finding.

***

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In sum, § 1251(f)(1) of the INA does not bar the injunction Texas

seeks against unauthorized cutting of its c-wire.29

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.

_____________________

29

Because we conclude Texas is entitled to a preliminary injunction on its state law

claims, we need not consider whether Texas is also likely to succeed on its APA claims that

Defendants’ actions were arbitrary and capricious and ultra vires. As such, we need not

address whether the Policy is subject to judicial review under 5 U.S.C. § 704 or whether

there has been “final agency action.” See Dissent at 2–17. Review under § 704 is only

relevant to Texas’s federal APA and ultra vires claims, not its state law claims.

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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 incidents of wire

cutting” of which “the Court is aware.” Moreover, the court discredited the

Defendants’ justifications for cutting Texas’s wire, describing their conduct

as “culpable and duplicitous,” labeling their arguments as “cynical,” and

not crediting their “evasive answers and demeanor.” Accordingly, the court

concluded that “compensation for past injury cannot adequately redress the

prospect of [Texas’s] continuing or future harm for which the only

appropriate remedy would be injunctive relief.”

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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

_____________________

30

Defendants argue that Texas has not suffered irreparable harm because its claims

are for property damage and can be adequately remedied by an FTCA claim or settled by

the Government under 19 U.S.C. § 1630. While it is true that harm is generally not

irreparable if there is an adequate remedy at law such as money damages, see Janvey v.

Alguire, 647 F.3d 585, 600 (5th Cir. 2011), this argument ignores the nature of Texas’s

continuous trespass claim.

31

See also 42 Am. Jur. 2d Injunctions § 109 (2023) (explaining that “prevention

of a multiplicity of suits is universally recognized as a ground for equitable intervention by

injunction, and especially is this so in the case of trespasses. . . . even when each act of

trespass is trivial or the damage is trifling and despite the fact that no single trespass causes

irreparable injury” (footnote omitted)).

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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.

Incorporating its TRO by reference, the court focused its public

interest analysis on two grounds: preventing unlawful agency action and

deterring illegal immigration. It found both factors weighed in Texas’s favor

“but just barely.” The motions panel declined to rely on the illegal

immigration justification and instead relied on a public interest in protecting

property rights. We agree that the district court’s findings are not clearly

erroneous for two reasons.

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,

39

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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, § 1357(a)(3)’s grant of authority covers “tens of

thousands of square miles.” But the public interest supports clear protections

for property rights from government intrusion and control.32 That interest is

protected by ensuring that the actions taken by federal agents to enforce

immigration law do not unnecessarily intrude into the rights of countless

property owners.

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

_____________________

32

See Chi., B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 235–36 (1897) (“Due

protection of the rights of property has been regarded as a vital principle of republican

institutions.”); Pa. Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) (“This is the case of a single

private house. No doubt there is a public interest even in this . . . .”); Minard Run Oil Co.

v. U.S. Forest Serv., 670 F.3d 236, 257 (3d Cir. 2011) (“Granting the injunction would

vindicate the public’s interest in aiding the local economy [and] protecting the property

rights of mineral rights owners . . . .” (citation omitted)); Apple Inc. v. Samsung Elec. Co.,

Ltd., 809 F.3d 633, 647 (Fed. Cir. 2015) (“[T]he public interest nearly always weighs in

favor of protecting property rights . . . .”).

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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 “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 risk to human safety. But so does Defendants’ behavior.

The court found Defendants facilitated and encouraged aliens to “undertake

the dangerous task of crossing the river.” It found that “the very emergencies

the Defendants assert make it necessary to cut the wire are of their own

creation.” The unauthorized port of entry “at a particularly dangerous

stretch of the river creates a perverse incentive for aliens to attempt to cross

at that location, begetting life-threatening crises for aliens and agents both.”

Moreover, the court found that Texas’s “c-wire serves as a deterrent—an

effective one at that.” So, this prong favors neither party.

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 raised 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

_____________________

33

See Gov’t of Mex., Information Note No. 04 (July 14, 2023),

https://perma.cc/V72L-GTXE; Gov’t of Mex., Information Note No. 05 (July 26, 2023),

https://perma.cc/F932-U9T9.

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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.

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Irma Carrillo Ramirez, Circuit Judge, dissenting:

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 that 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.

_____________________

34

Because it did not address its notice-and-comment rulemaking claim, Texas

forfeited this argument. Sec. & Exch. Comm’n v. Hallam, 42 F.4th 316, 327 (5th Cir. 2022)

(“[A]ny issue not raised in an appellant’s opening brief is forfeited.” (citing United States

v. Bowen, 818 F.3d 179, 192 n. 8 (5th Cir. 2016))).

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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.” 5 U.S.C. § 553(b). After notice has been given, the

agencies must then allow “interested persons an opportunity to participate

_____________________

35

The district court granted Texas’s motion for a temporary restraining order

based on its trespass-to-chattels claim, and Texas appears to pursue only this state-law

claim on appeal.

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in the rule making through submission of written data, views, or arguments

with or without opportunity for oral presentation.” 5 U.S.C. § 553(c).

Under the APA, there are two types of rules: (a) substantive rules and

(b) interpretative 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, 5 U.S.C. §§ 701–06. For example, §

701 permits judicial review except to the extent that a statute precludes

judicial review, 5 U.S.C. § 701(a)(1), or when “agency action is committed

to agency discretion by law,” 5 U.S.C. § 701(a)(2). Section 702 further

“authorizes suit by ‘[a] person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action within the

meaning of a relevant statute.’” Norton v. S. Utah Wilderness All., 542 U.S.

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55, 61 (2004) (quoting 5 U.S.C. § 702). But under § 704, only “[a]gency

action made reviewable by statute and final agency action for which there is

no other adequate remedy in a court are subject to judicial review.” 5 U.S.C.

§ 704. A “preliminary, procedural, or intermediate agency action or ruling

not directly reviewable is subject to review on the review of the final agency

action.” Id.

A

Texas contends the Policy is “subject to judicial review” under

§ 704.36

Section 704 determines which agency actions are subject to judicial

review. Whether agency action is subject to judicial review is a jurisdictional

question. Fort Bend County v. U.S. Army Corps of Eng’rs, 59 F.4th 180, 192

(5th Cir. 2023). Under § 704, federal courts may review two “categories” of

agency action: (1) agency action “made reviewable by a specific review-

_____________________

36

Only a “person” may seek judicial review of agency action. 5 U.S.C. § 702. The

APA defines a person as “an individual, partnership, corporation, association, or public or

private organization other than an agency.” See id. §§ 551(2), 701(b)(2). A member of the

Supreme Court has noted that, it “never explicitly mentions a state or state agency, much

less expressly authorizes a state or state entity to sue the federal government in their role

as parens patriae.” Maryland v. U.S. Dep’t of Educ., 474 F. Supp. 3d 13, 44 (D.D.C. 2020)

(Jackson, K.B., J.), vacated as moot, No. 20-5268, 2020 WL 7868112 (D.C. Cir. Dec. 22,

2020); see Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16

(1982) (“A State does not have standing as parens patriae to bring an action against the

Federal Government.”). Several statements plausibly demonstrate that Texas has brought

this action in its parens patriae capacity. Nevertheless, its claims are analyzed as if asserted

as “any other property owner” because the district court found that Defendants had not

challenged Texas’s authority to sue in this capacity. DHS, 2023 WL 8285223, at *5–6.

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authorizing statute,” and (2) final agency action for which no adequate

remedy at law exists. 5 U.S.C. § 704.

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

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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 Policy.37 Texas alleges that the emails at

issue are “changeable agency action authorizing line-level officers to tamper

with Texas’s property,” memorializing Defendants’ alleged “policy,

pattern, or practice of intermeddling with [Texas]’s concertina wire” along

the border.

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

_____________________

37

Texas offers the internal communications as evidence that the Policy exists but

acknowledges that it “could better establish the details of the policy if it had access to the

relevant documents.”

38

“This opinion uses the term ‘noncitizen’ as equivalent to the statutory term

‘alien.’” Nasrallah v. Barr, 590 U.S. 573, 578 n.2 (2020) (citing 8 U.S.C. § 1101(a)(3)).

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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

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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 done by an administrative agency.”

(brackets and citation omitted)); JERRY L. MASHAW ET AL.,

ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM 1218 (7th ed.

2014) (“Agencies engage in a host of other types of regulatory activities that

do not involve their formal law making or enforcement authority.”). To the

extent Texas believes that a particular instance in which Defendants cut

through its fencing constituted unlawful agency action, Texas may file an

action seeking review of that specific act—but because the challenge Texas

has brought concerns the Policy, instances of wire cutting do not bear on the

immediate challenge. See Lujan, 497 U.S. at 894 (“Th[is] case-by-case

approach . . . is understandably frustrating . . . . But this is the traditional, and

remains the normal, mode of operation of the courts.”).

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

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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

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consequences. Texas appears to contend that the problem stems from the

fact that Defendants’ “interpretation of statutory language is binding on

their staff.” But it provides no evidence to contradict what the Policy

seemingly contains: information regarding federal agents’ preexisting

responsibilities and authority when they encounter physical impediments in

the course of apprehending, processing, and inspecting noncitizens. See

Nat’l Pork, 635 F.3d at 756 (stating that agency action is nonfinal if it restates

an existing legal rule). The Policy cannot produce new legal consequences if

it recites what is already established. See Becerra, 89 F.4th at 540. Moreover,

Texas does not specify how the Policy binds Defendants’ staff. There is no

record evidence demonstrating that the Policy requires cutting any fencing,

and Texas does not explain how the Policy requires or prohibits specific acts

by Defendants or their staff, see, e.g., Luminant Generation Co., L.L.C. v. EPA,

757 F.3d 439, 442 (5th Cir. 2014) (determining that agency action did not

meet the second Bennett prong because it did “not commit the [agency] to

any particular course of action”). It is therefore unclear how the Policy is

binding.

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

10

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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.

_____________________

39

Texas cites Biden v. Texas for the proposition that agency action requiring

execution by agency personnel satisfies the second Bennett prong prior to execution. See

597 U.S. 785, 808 (2022). Unlike here, however, the agency actions at issue in Biden legally

obligated agency personnel to refrain from taking certain actions. See id. at 808–09.

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B

Texas also contends that judicial review is not precluded under

§ 701(a)(2) of the APA because the Policy is not “committed to agency

discretion by law.”

Section 701(a) specifies when judicial review of agency action is

precluded. Relevant here, § 701(a)(2) instructs that federal courts may not

review agency action “committed to agency discretion by law.” Whether

agency action is committed to agency discretion is a jurisdictional question.

Mejia-Alvarenga v. Garland, 95 F.4th 319, 327 (5th Cir. 2024).

To determine whether § 701(a)(2) precludes judicial review, courts

look to “the statute on which the claim of agency illegality is based” and

“careful[ly] examin[e]” it. Webster v. Doe, 486 U.S. 592, 600 (1988). “[I]f the

statute is drawn so that a court would have no meaningful standard against

which to judge the agency’s exercise of discretion,” judicial review is

unavailable. Heckler v. Chaney, 470 U.S. 821, 830 (1985); Perales v. Casillas,

903 F.2d 1043, 1047 (5th Cir. 1990) (“Agency action is committed to agency

discretion by law . . . if there are no statutory or regulatory provisions creating

standards against which the agency action can be measured.”). The Supreme

Court has generally limited § 701(a)(2)’s reach “to ‘certain categories of

administrative decisions that courts traditionally have regarded as

“committed to agency discretion.”’” Dep’t of Com. v. New York, 588 U.S. 752,

772 (2019) (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)).

“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

12

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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 §§ 1226(c)(1) and 1231(a)(1)(A) by prioritizing the use of scarce

resources.”). That is so primarily because “the immigration statutes afford

substantial discretion to the Executive.” Biden, 597 U.S. at 815 (Kavanaugh,

J., concurring). When different administrations “exercise that discretion

differently,” Article III tribunals have no role to play—“Administrative Law

101” is at work.40 Id.; see Texas v. United States, 106 F.3d 661, 667 (5th Cir.

1997) (“Real or perceived inadequate enforcement of immigration laws does

not constitute a reviewable abdication of duty.”). So long as a meaningful

standard does not exist to gauge an agency’s exercise of discretion,

§ 701(a)(2) precludes judicial review.41

Texas proffers state tort law as the standard. But precedent is clear that

the statute or regulation “on which the claim of agency illegality is based”

supplies the applicable standard. See Webster, 486 U.S. at 600 (majority

_____________________

40

The political branches can provide federal courts a role to play by putting forth

“statutory or regulatory provisions” that “creat[e] standards against which . . . agency

action can be measured.” See Perales, 903 F.2d at 1047.

41

The discretion afforded to the executive branch flows directly from legislative

enactments. It is within Congress’s purview to grant such discretion and define it. See

Lincoln, 508 U.S. at 193. When Congress commits an action to agency discretion, “the

Judiciary has no role to play.” Dep’t of Com., 588 U.S. at 837 (Alito, J., concurring in part

and dissenting in part); see Dep’t of State v. Muñoz, 144 S. Ct. 1812, 1820 (2024) (“The

Judicial Branch has no role to play ‘unless expressly authorized by law.’” (citation

omitted)).

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opinion); see 4 Charles H. Koch, Jr. & Richard Murphy,

Administrative Law and Practice § 12:12 (3d ed.) (“Where a

standard cannot be gleaned from either the statutory scheme or its legislative

history, . . . review should be precluded.”).

This court may grant Texas the injunctive relief it seeks only if

§ 701(a)(2) permits judicial review of the complained-of agency action.

Because Texas has not identified a viable legal standard by which Defendants’

discretion may be evaluated, jurisdiction to review § 701(a)(2)’s

judicial-review bar is lacking, and Texas has not demonstrated a substantial

likelihood of success.

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 § 704. Some jurisdictions recognize two types of

ultra vires claims, however: (i) those under the APA, and (ii) those under the

common law. See Fed. Express Corp. v. U.S. Dep’t of Com., 39 F.4th 756, 763

(D.C. Cir. 2022) (distinguishing “statutory review of an agency action” from

common-law ultra vires challenges). Based on its contention that ultra vires

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challenges to agency action do not require final agency action, Texas appears

to assert a common-law ultra vires claim.42

“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).

To succeed on a common-law ultra vires claim, “a plaintiff must ‘do

more than simply allege that the actions of the officer are illegal or

unauthorized.’” Danos, 652 F.3d at 583 (quoting Ala. Rural Fire Ins. Co. v.

Naylor, 530 F.2d 1221, 1226 (5th Cir. 1976)). “The complaint must allege

facts sufficient to establish that the officer was acting ‘without any authority

whatever,’ or without any ‘colorable basis for the exercise of authority.’” Id.

(quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11

(1984)). If the plaintiff cannot not satisfy this pleading standard, then

sovereign immunity bars the suit. In other words, “even at the pleading

stage,” the plaintiff must present “a strong merits argument.” Apter, 80

F.4th at 588; see Griffith v. Fed. Labor Relations Auth., 842 F.2d 487, 493

_____________________

42

The 1976 amendment to the APA sought “to do away with th[is] ultra vires

doctrine.” Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985); but see Fed. Express Corp.,

39 F.4th at 763 (finding that the doctrine “survived the enactment of the APA”). To the

extent Texas reads post-Geyen caselaw to permit the application of the common-law ultra

vires exception, Geyen likely precludes such a result. See Arnold v. U.S. Dep’t of Interior, 213

F.3d 193, 196 n.4 (5th Cir. 2000) (“[U]nder the rule of orderliness, to the extent that a

more recent case contradicts an older case, the newer language has no effect.”).

Nevertheless, previous panels, see, e.g., Danos v. Jones, 652 F.3d 577, 582 (5th Cir. 2011),

have assumed arguendo that the common-law ultra vires doctrine is available.

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(D.C. Cir. 1988) (“The Supreme Court and others have sought to confine

[the ultra vires exception] to agency error so extreme that one may view it as

jurisdictional or nearly so.”).

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

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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 has not shown that

Defendants “transgress[ed] ‘clear and mandatory’ limits that

Congress . . . imposed on [their] authority.” Changji Esquel, 40 F.4th at 725

(citation omitted).

* * *

Texas has not shown that the purported agency action is subject to

judicial review under § 704 or based on an APA ultra vires claim, or that §

701(a)(2) permits judicial review. Texas has also failed to establish a

common-law ultra vires claim that can overcome sovereign immunity.

Accordingly, because this court has no jurisdiction to consider the purported

agency action it challenges, Texas has not demonstrated a substantial

likelihood of success on the merits of its claims.

III

Texas also seeks injunctive relief for its trespass-to-chattels claim,

which arises under Texas law. Texas contends § 702’s plain text waives

Defendants’ sovereign immunity for this claim. Defendants respond that

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§ 702’s waiver extends to those suits seeking nonmonetary relief arising

under federal law.

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 § 702 waives sovereign immunity here

turns on whether § 702 waives Defendants’ immunity from suit, and whether

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Defendants are subject to Texas law.43 See FDIC v. Meyer, 510 U.S. 471, 484

(1994).

A

The second sentence of § 702, in relevant part, reads: “An action 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 . . . .” Read in isolation, this sentence seemingly indicates that

Congress waived the United States’ sovereign immunity “in all suits seeking

equitable, nonmonetary relief against an agency.” Walmart Inc. v. DOJ, 21

F.4th 300, 307 (5th Cir. 2021).

This court has held, however, that § 702 waives sovereign immunity

only if the challenged government actions are “otherwise subject to judicial

review.” Fort Bend County, 59 F.4th at 189 (quoting Ala.-Coushatta, 757 F.3d

at 488). In other words, § 702’s sovereign-immunity waiver applies only in

“cases in which a plaintiff can ‘identify some “agency action” affecting him

in a specific way’ and ‘show that he has “suffered legal wrong because of the

challenged agency action, or is adversely affected or aggrieved by that action

within the meaning of a relevant statute.”’” Harrison County v. U.S. Army

_____________________

43

The parties also debate the availability of judicial review given § 702(2), which

makes the APA’s waiver of sovereign immunity inapplicable if another statute (here, the

FTCA) “grants consent to suit expressly or impliedly forbids the relief” sought by Texas.

See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215

(2012). This court has not previously addressed this question, and it is unnecessary to so at

this stage. See Privitera v. Curran (In re Curran), 855 F.3d 19, 22 (1st Cir. 2017) (“[C]ourts

should not rush to decide unsettled issues when the exigencies of a particular case do not

require such definitive measures.”).

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Corps of Eng’rs, 63 F.4th 458, 462 (5th Cir. 2023) (quoting Ala.-Coushatta,

757 F.3d at 489).44

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 APA, then final agency action is required to

waive sovereign immunity. Id. Texas appears to argue that it has been

“adversely affected” by “agency action” under 5 U.S.C. § 551(13). It

contends its “mangled fence” falls squarely within the definition of “agency

action” under the APA because this definition includes “destruction of …

property.” 45

_____________________

44

A circuit split exists as to whether § 702’s second sentence is “cabined” by its

first sentence. See Walmart, 21 F.4th at 307–08. This court answered the question

affirmatively. See id. at 308 & n.4 (recognizing as much and identifying other concurring

circuits); Doe v. United States, 853 F.3d 792, 799 & n.20 (5th Cir. 2017) (acknowledging this

court’s interpretation of § 702’s sovereign-immunity waiver differs from Trudeau v.

Federal Trade Commission, 456 F.3d 178 (D.C. Cir. 2006)); see also William Baude,

Jack L. Goldsmith, John F. Manning, James E. Pfander & Amanda L.

Tyler, Hart and Wechsler’s The Federal Courts and the Federal

System 114 (7th ed. Supp. 2022) (“[T]he circuits are split over whether the waiver of

sovereign immunity is limited to suits under the APA and is constrained by its ‘final agency

action’ requirement. The majority position is no: though codified in the APA, the waiver

applies to any suit, whether or not brought under the APA.”).

45

Under the APA, “‘agency action’ includes the whole or a part of an agency rule,

order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C.

§ 551(13) (emphasis added). “Sanction” is further defined to include: (a) “prohibition,

requirement, limitation, or other condition affecting the freedom of a person”; (b)

“withholding of relief”; (c) “imposition of a penalty or fine”; (d) “destruction, taking,

seizure, or withholding of property”; (e) “assessment of damages, reimbursement,

restitution, compensation, costs, charges, or fees”; (f) “requirement, revocation, or

suspension of a license”; and (g) “taking other compulsive or restrictive action.” Id. §

551(10)(D) (emphasis added).

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Texas clearly seeks judicial review under the APA. But as discussed,

it has not identified any final agency action, meaning that sovereign immunity

is not waived for the requested APA review. See Walmart, 21 F.4th at 308.

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 28 U.S.C. §

1331,” Ala.-Coushatta, 757 F.3d at 488. This is a position shared by at least

three of our sister courts. See Commonwealth of Puerto Rico v. United States,

490 F.3d 50, 59 (1st Cir. 2007) (“Non-statutory review is available pursuant

to the general ‘federal question’ jurisdiction of the federal courts under 28

U.S.C. § 1331 . . .”); Jaffee v. United States, 592 F.2d 712, 718 (3d Cir. 1979)

(“We . . . hold that section 702, when it applies, waives sovereign immunity

in ‘nonstatutory’ review of agency action under section 1331.”); Five Flags

Pipe Line Co. v. Dep’t of Transp., 854 F.2d 1438, 1439 (D.C. Cir. 1988) (“If

Congress makes no specific choice [of which court will conduct judicial

review] in the statute pursuant to which the agency action is taken, or in

another statute applicable to it, . . . then an aggrieved person may get

‘nonstatutory review’—a confusing misnomer—in federal district court

pursuant to the general ‘federal question’ jurisdiction of that court.”).

Because Texas’s trespass-to-chattels claim is a state-law claim, it does not

implicate § 1331 and is therefore not a non-statutory cause of action.

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Texas does not identify any other “statutory or non-statutory” causes

of action under § 1331, so it has not demonstrated a substantial likelihood of

success on its contention that Congress clearly waived Defendants’ sovereign

immunity. Jurisdiction over the claim is therefore lacking.

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 and 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 does not identify anything in § 702, or the APA more broadly,

that explicitly subjects Defendants to Texas law. But cf. 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) (“The FTCA and Westfall Act

do expressly borrow (or permit) state tort causes of action against the United

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States in certain carefully defined circumstances.”). Absent authorization,

Texas’s “state-law cause of action may not be brought against” Defendants

because “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.; see Supreme Beef, 468 F.3d at 255.

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 § 702’s waiver of sovereign immunity does not

require final agency action. See Perry Cap. LLC v. Mnuchin, 864 F.3d 591,

620–22 (D.C. Cir. 2017) (holding “that the requirement of final agency

action in § 704 is not a condition of the waiver of immunity in § 702, but

instead limits the cause of action created by the APA”); Treasurer of N.J. v.

U.S. Dep’t of Treasury, 684 F.3d 382, 400 (3d Cir. 2012) (“Accordingly,

section 704 in limiting review to ‘final agency action’ concerns whether a

plaintiff has a cause of action under the APA that can survive a motion to

dismiss under Rule 12(b)(6) but does not provide a basis for dismissal on

grounds of sovereign immunity.”). As discussed, this court requires final

agency action before § 702’s waiver of sovereign immunity takes effect when

there is no specific review-authorizing statute. See 5 U.S.C. § 704 (“Agency

action made reviewable by statute and final agency action for which there is

no other adequate remedy in court are subject to judicial review.”). Absent

such action, Perry Capital and Treasurer of New Jersey are inapposite.

Texas also contends that this court should hold that § 702 waives

sovereign immunity because Defendants cite no circuit precedent stating that

the § 702 waiver applies only to federal claims. This again treats the waiver

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of immunity synonymously with consent to substantive liability, but it also

improperly shifts the burden of showing an unequivocal waiver of sovereign

immunity. Texas carries this burden, not Defendants; Defendants are not

required to prove—as Texas appears to suggest—that there has been no

waiver of sovereign immunity. St. Tammany Par., ex rel. Davis v. Fed.

Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009) (“Plaintiff bears

the burden of showing Congress’s unequivocal waiver of sovereign

immunity.”). Instead, as the party suing the federal government and

asserting subject-matter jurisdiction, Texas has the burden of pointing to a

congressional act that gives it consent to do so. See Peoples Nat’l Bank v. Office

of the Comptroller of the Currency of the U.S., 362 F.3d 333, 336 (5th Cir.2004)

(“The party claiming federal subject matter jurisdiction has the burden of

proving it exists.”); Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981)

(holding that, when faced with factual attack on federal court's subject matter

jurisdiction, plaintiff bears the burden “of proving by a preponderance of the

evidence that the trial court does have subject matter jurisdiction”). Texas

has not done so here.

Texas’s general argument that other circuit courts have held that §

702 applies to state law is likewise unfounded. Several of our sister courts

have instead considered claims arising from a federal statute or federal

common law or issues totally removed from sovereign immunity. S. Delta

Water Agency v. U.S., Dep't of Interior, Bureau of Reclamation, 767 F.2d 531,

536 (9th Cir. 1985) (permitting application of state water laws against the

Department of the Interior because “the Supreme Court interpreted the

[Reclamation Act of 1902], including section 7, as requiring federal

defendants to comply with state law in appropriating, purchasing, or

condemning water rights.” (citing California v. U. S., 438 U.S. 645, 665

(1978))); Gilmore v. Weatherford, 694 F.3d 1160, 1164 (10th Cir. 2012)

(plaintiff “pled an accounting claim that they contend arises under federal

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common law”); Fletcher v. United States, 160 Fed. Appx. 792, 796–97 (10th

Cir. 2005) (“…the plaintiffs sought an order directing the defendants to

comply with the requirements of the [Osage Allotment Act of 1906] from the

date of the filing of the complaint in this case.”); Herr v. U.S. Forest Serv.,

803 F.3d 809, 813 (6th Cir. 2015) (“The Herrs’ appeal raises two

questions: (1) Does the statute of limitations … impose a jurisdictional

barrier on the power of the federal courts to hear this case? And (2) did

the six-year limitations period run before they filed this lawsuit?”). See also

Hanson v. Wyatt, 552 F.3d 1148, 1173 n.11 (10th Cir. 2008) (Gorsuch, J.,

concurring) (explaining that, in the 10th Circuit, § 702’s waiver of sovereign

immunity does not require final agency action because “we have not treated

Section 704 as a limit on that waiver.” (internal citations omitted)).

Because Texas has not shown that its law runs against Defendants,

Texas has not demonstrated Congress consented to subjecting Defendants to

substantive liability here.

* * *

Texas has not satisfied its burden to show that (1) § 702 waives

Defendants’ sovereign immunity on Texas’s trespass-to-chattels claim, and

(2) the APA does not subject Defendants to Texas law.

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

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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

_____________________

46

When immunizing federal officers, this doctrine is sometimes known as

“Supremacy Clause immunity.” See Texas v. Kleinert, 855 F.3d 305, 313 (5th Cir. 2017).

The parties cite cases concerning intergovernmental immunity and Supremacy Clause

immunity to support their intergovernmental-immunity arguments—for immediate

purposes, these strands of immunity are functionally synonymous.

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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.)).

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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 from

cutting Texas’s fencing—has the direct effect of “restrain[ing] or

control[ling]” Defendants’ immigration-enforcements efforts. See Pub. Utils.

Comm’n of Cal. v. United States, 355 U.S. 534, 543 (1958); see also Nw., Inc. v.

Ginsberg, 572 U.S. 273, 283 (2014) (“What is important . . . is the effect of a

state law, regulation, or provision . . . .”). Texas’s use of its tort law against

Defendants provides Texas with “a virtual power of review” of Defendants’

immigration-enforcement operations, which would “frustrate” Defendants’

ability to ensure faithful execution of federal law. See Leslie Miller, 352 U.S.

at 190. Because Texas’s application of its tort law “places a prohibition on”

Defendants, see Hancock v. Train, 426 U.S. 167, 180 (1976), Defendants are

shielded by intergovernmental immunity.47 See Mayo, 319 U.S. at 445

(“[T]he activities of the Federal Government are free from regulation by any

state. No other adjustment of competing enactments or legal principles is

possible.” (footnote omitted)).

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.

_____________________

47

Congress may waive intergovernmental immunity for state regulation. See

Hancock, 426 U.S. at 179 (“[W]here ‘Congress does not affirmatively declare its

instrumentalities or property subject to regulation,’ ‘the federal function must be left free’

of regulation.” (quoting Mayo v. United States, 319 U.S. 441, 447 (1943))). Texas does not

identify congressional authorization permitting Texas tort law to apply to Defendants. See

El-Shifa, 607 F.3d at 854 (Kavanaugh, J., concurring in the judgment) (“State tort law

doesn’t run against the United States . . . .”).

28

Case: 23-50869 Document: 181-1 Page: 71 Date Filed: 11/27/2024

No. 23-50869

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 commerc

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