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Summary

On October 24, 2023, Texas sued the Biden Administration to stop Customs and Border Protection agents from cutting concertina wire (aka “razor wire”) that the State has been installing as a border barrier. Like the large buoys Texas previously put in the Rio Grande, 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. Texas’s complaint alleges that the federal government has a policy or practice of cutting the razor wire and that doing so is illegal because it amounts to unlawful destruction of private property (the razor wire itself) that is not authorized by federal law, and that the alleged policy did not go through required procedures.

On the same day it filed suit, Texas also filed a motion for a preliminary injunction, requesting that the court block the alleged policy of cutting razor wire while the case proceeds to final judgment. 

On October 27, Texas filed a motion for a temporary restraining order (TRO) to enjoin (block) the federal government from continuing the alleged policy or practice of cutting the razor wire until the court could rule on Texas’s preliminary injunction motion. On October 30, Judge Moses granted Texas’s request for a TRO until November 13, but noted an exception in the order to permit the federal government to move or cut the razor wire fencing to aid individuals in the event of medical emergencies. Judge Moses later extended that emergency TRO twice, until it expired on November 29, 2023.

After holding two hearings on Texas’s request for a preliminary injunction, Judge Moses issued an opinion denying it on November 29, 2023, holding that Texas had failed to carry its burden of proving that it was likely to succeed on any of its claims. Texas appealed that decision the next day. In December 2023, the Fifth Circuit granted Texas’s request for an injunction prohibiting the federal government from cutting the razorwire in most instances pending the full resolution of the appeal.  On January 22, 2024, however–after a Mexican mother and her two children drowned in an area to which Texas had reportedly blocked access with razorwire–the Supreme Court vacated the Fifth Circuit’s injunction. Then on January 26, 2024, the Fifth Circuit stayed (paused) the appeal and remanded the case back to Judge Moses to develop the factual record further, including about the drowning deaths.

After the case returned to Judge Moses, she held an evidentiary hearing on March 4 and 5, 2024, in Del Rio, Texas, after which she issued supplemental findings of fact on March 26, 2024. The Fifth Circuit appeal then proceeded. 

The parties finished briefing the federal government’s motion to dismiss this lawsuit on May 16, 2024. Judge Moses could issue a decision at any time.

Technical Summary

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.

Texas filed this case in the Del Rio division of the Western District of Texas, where there is a 100% chance it would be assigned to Chief Judge Alia Moses. 

Judge Moses’s February 2024 production order–after the limited remand–required the parties to produce the documents ex parte, under seal, and completely unredacted. It also specified that she would not exchange the document productions amongst the parties unless they affirmatively consented to it. Judge Moses’s order did not seem to contemplate the documents being shared with the public.
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