This is an appeal of a district court’s November 29, 2023 decision denying Texas’s request for a preliminary injunction blocking the alleged policy and practice of Customs and Border Protection agents of cutting concertina wire (aka “razor wire”) that Texas has been installing as a border barrier. The razor wire is part of Texas’ “Operation Lone Star,” which seeks to deter migration to the state through dangerous border barriers, criminalization and deportation. Although the district court judge initially blocked the alleged policy on an emergency basis, she ultimately concluded that Texas failed to show that it was likely to succeed on any of its claims, and so denied its motion for a preliminary injunction and permitted the previous temporary restraining order to expire. Texas appealed the next day.
On December 4, 2023–a few days after it appealed–Texas filed a motion with the Fifth Circuit requesting that it issue an injunction of the alleged policy while it considers the appeal in full. At the same time, it also asked the Fifth Circuit to issue an “administrative injunction” of the alleged policy to block it while the parties are briefing Texas’s request for an injunction pending resolution of the full appeal. The Fifth Circuit granted the motion for an administrative injunction on the same day it was filed, thereby blocking the alleged policy while the parties are briefing the motion for an injunction pending appeal.
Later in December 2023, the Fifth Circuit granted Texas’s request to enjoin (block) the federal government from “damaging, destroying, or otherwise interfering with Texas’s c-wire [razorwire] fence in the vicinity of Eagle Pass, Texas,” except “if necessary to address any medical emergencies.” On January 2, 2024, the Biden Administration asked the Supreme Court to vacate (nullify) the Fifth Circuit’s injunction; that request was granted on January 22, 2024.
Shortly after the Supreme Court vacated its injunction pending appeal, the Court of Appeals issued an order that held the appeal in abeyance (e.g., paused it) and remanded the case back to the district court for 60 days for the purpose of further developing the factual record–particularly about the drowning deaths of Victerma de la Sancha Cerros (a Mexican migrant) and her 8- and 10-year old children, Yorlei and Jonathan, in an area to which Texas had reportedly blocked access with razorwire.
Following the remand, the panel could order supplemental briefing and/or oral argument.
Texas's complaint alleges six claims regarding the alleged policy of destroying the state’s razor wire. Those claims are that the policy constitutes: (1) common law conversion; (2) common law trespass; (3) final agency action unauthorized by statute; (4) an APA notice and comment violation; (5) an APA arbitrary and capricious violation; and in the alternative, (6) an ultra vires non-final agency action.
Judge Moses’s November 29, 2023 opinion held that Texas’s common law claims are barred by sovereign immunity; that the APA claims did not challenge final agency action; and that Texas had not carried its burden on the ultra vires claim.