Fifth Circuit Holds Texas Is Entitled to Preliminary Injunction Against Border Patrol Cutting of Concertina Wire Near Eagle Pass

The decision

On November 27, 2024, a panel of the U.S. Court of Appeals for the Fifth Circuit reversed a district court’s denial of a preliminary injunction sought by the State of Texas against the U.S. Department of Homeland Security and other federal defendants, and granted the injunction itself, with one modification. The suit concerns Border Patrol agents’ cutting of concertina wire (“c-wire”) fencing that Texas placed along the Rio Grande near Eagle Pass. The court held that § 702 of the Administrative Procedure Act (APA) waives the United States’ sovereign immunity for Texas’s state common-law claims seeking nonmonetary relief, and that neither intergovernmental immunity nor 8 U.S.C. § 1252(f)(1) of the Immigration and Nationality Act (INA) bars the injunction. “We now rule that Texas is entitled to a preliminary injunction,” the opinion states.

As set out in the opinion’s conclusion: “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.” It continues: “That necessary access must include the land side of the c-wire fence along the international border within Shelby Park.”

The ruling concerns a preliminary injunction on Texas’s state-law claims. The court did not decide Texas’s APA or ultra vires claims. Judge Irma Carrillo Ramirez dissented.

Background

According to the opinion, Texas launched Operation Lone Star in 2021, and by September 2023 had installed more than 29 miles of c-wire in the Eagle Pass area, much of it along the riverfront. Both Border Patrol and Texas agreed the wire could be cut in a medical emergency or to enforce federal immigration law. Beginning around September 2023 the parties clashed, and the district court found “at least fourteen incidents of wire cutting.” In one incident captured on video, agents cut holes in the wire and installed a climbing rope while a Border Patrol boat observed migrants crossing who were not questioned.

Texas sued in the Western District of Texas alleging common-law conversion, common-law trespass to chattels and APA violations, and sought a preliminary injunction based on trespass to chattels. The district court granted a temporary restraining order that excepted medical emergencies, held two hearings, and then denied a preliminary injunction solely on the ground that Congress had not waived sovereign immunity under § 702. It nonetheless analyzed the Winter factors in Texas’s favor, finding that agents already had access to both sides of the fence and had cut the wire “for no apparent purpose other than to allow migrants easier entrance further inland.” It found insufficient evidence at that stage of final agency action or ultra vires acts.

On December 19, 2023, a motions panel granted an injunction pending appeal with a medical-emergency exception. Defendants applied to the Supreme Court to vacate it and, in supplemental filings, argued that Texas’s occupation of Shelby Park had blocked Border Patrol’s access and prevented a response to two drownings in the Rio Grande on January 12, 2024. Texas disputed those assertions. On January 22, 2024, the Supreme Court vacated the injunction pending appeal by a 5-4 vote “without accompanying reasons.” The panel then ordered a limited remand. The district court’s supplemental findings stated that Texas withdrew from a 2.5-mile perimeter within hours, that the drowning emergency had concluded about an hour and a half before agents arrived at the park gates, and that it was “an open question” whether Texas’s activity constituted an impediment.

The court’s reasoning

Judge Stuart Kyle Duncan wrote the opinion. The court reviewed the denial of a preliminary injunction for abuse of discretion, which includes resting on an erroneous understanding of governing law.

Section 702 waiver

The court began with § 702’s text and found that “Texas’s lawsuit checks all of § 702’s boxes”: Texas alleged it was adversely affected by “agency action,” a term whose statutory definition includes destruction of property; it brought an action in federal court; it sought relief other than money damages; and it claimed federal officers acted under color of legal authority. The court declined to read “an action” as “a federal action,” noting that Congress used the word “Federal” elsewhere in the same provision. It found Defendants’ statutory-history argument unpersuasive. Turning to precedent, the court wrote: “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.” It cited decisions from at least four circuits applying the waiver to state-law claims for nonmonetary relief. The court concluded: “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.”

The Federal Tort Claims Act

Defendants argued the FTCA is the exclusive remedy for state tort claims and “impliedly forbids” injunctive relief. The court found no support in the FTCA’s text, which it said addresses only money damages: “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.” It noted the D.C., Seventh and Tenth Circuits had rejected the same argument.

Intergovernmental immunity

Assuming intergovernmental immunity had not been waived, the court held Texas’s suit does not violate it because Texas acts as “an ordinary proprietor” under state tort law rather than as a regulator, and because the suit at most incidentally affects how agents carry out their duties under 8 U.S.C. § 1357(a)(3), which grants access to private lands to patrol the border. The court relied on the district court’s finding that agents were cutting the wire when they already had access to both sides. It distinguished the Ninth Circuit’s en banc Geo Group decision and held that Defendants had forfeited any preemption argument by disavowing it below.

Section 1252(f)(1)

The court held that the INA’s bar on enjoining the operation of 8 U.S.C. §§ 1221–1232 does not apply: “Texas does not seek to enjoin the operation of any of the provisions listed in § 1252(f)(1).” The court reasoned that the injunction runs only against conduct unauthorized by § 1357(a)(3), which is not a covered provision, and that any effect on §§ 1225 and 1226 would be collateral. Rejecting Defendants’ reading of Garland v. Aleman Gonzalez, the court wrote: “Congress legislated which sections are covered by § 1252(f)(1). The Executive Branch does not get to propose additions.”

The Winter factors

On likelihood of success, the court stated: “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.” On irreparable harm, reviewing for clear error, the court held: “When a trespass is continuous such that stopping it would require a multiplicity of suits, an injunction is justified because monetary relief is inadequate.” On the equities and public interest, the court agreed “in part” with Texas, citing the public interest against unlawful agency action and in protecting property rights; it treated the risk to human life as “neutral” and rejected Defendants’ Supremacy Clause and international-relations arguments.

Modification

Citing System Federation No. 91 v. Wright, the court relied on the supplemental Shelby Park findings to require that Defendants’ access include the land side of the fence within Shelby Park. It otherwise declined to decide whether those findings could be considered in reviewing the denial.

Separate opinions

Judge Ramirez wrote: “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.” She treated Texas’s APA challenge as directed at a “Policy” consisting of internal emails and concluded that “Texas has not satisfied its burden to show that the Policy meets either Bennett prong,” so there was no final agency action. She would also have held review precluded under 5 U.S.C. § 701(a)(2) and the common-law ultra vires claim insufficient. On § 702, she reasoned that “[b]ecause 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,” and that waiver of immunity is distinct from consent to substantive liability. She would have held that intergovernmental immunity applies because applying Texas tort law would give Texas “a virtual power of review” over enforcement operations, and that § 1252(f)(1) bars the injunction because the relief sought “would operate against at least two provisions covered by § 1252(f)(1)—§§ 1225 and 1226.”

Status

The court reversed the district court’s judgment and itself granted the preliminary injunction as modified. The opinion states that, because Texas is entitled to a preliminary injunction on its state law claims, the court need not consider whether Texas is also likely to succeed on its APA claims.

According to the Associated Press, Texas Gov. Greg Abbott said after the ruling that the state would continue adding wire barrier.