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This was an application for vacatur (nullification) of the Fifth Circuit’s December 19, 2023 decision granting 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.” That injunction was pending the full appeal of the district court’s decision denying Texas’s request for that injunction pending the full resolution of its lawsuit.

Following briefing, the Supreme Court (in a 5-4 vote) granted the Biden Administration’s request to vacate the Fifth Circuit’s injunction on January 22, thereby removing the prohibition on the federal government cutting razorwire fencing installed by Texas along its southern border.

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 denying the motion for a preliminary injunction 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.

The Fifth Circuit’s December 19, 2023 opinion granting Texas’s request for an injunction pending appeal held that the United States waived its sovereign immunity; and that Texas would suffer an irreparable injury absent a stay.


Latest Updates

  • 01/24/2024
    Biden Administration’s Reply Brief in Support of Vacatur

    PDF at this link

  • 01/22/2024
    Order Granting Application to Vacate Injunction (PDF at this link)


  • 01/09/2024
    Texas’s Opposition to Vacatur Application

    (PDF at this link)

Full Timeline and Documents

  • 01/02/2024
    Biden Administration’s Application for Vacatur of Injunction

     (PDF at this link)

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