5COA Moses

Case: 23-50869 Document: 49-1 Page: 1 Date Filed: 12/19/2023
United States Court of Appeals

FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
December 19, 2023

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 23-50869 State of Texas v. DHS
USDC No. 2:23-CV-55
Enclosed is an order entered in this case.
Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________
Whitney M. Jett, Deputy Clerk
504-310-7772
Mr. Ari Cuenin
Mr. Philip Devlin
Mr. Christopher A. Eiswerth
Mr. Robert D. Green
Mr. Robert E. Henneke
Mr. James Andrew Mackenzie
Mr. Steven Andrew Myers
Mr. Aaron Lloyd Nielson
Ms. Melissa Nicole Patterson
Mr. Ryan Daniel Walters
United States Court of Appeals

for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
December 19, 2023
No. 23-50869
____________ 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, Acting
Commissioner, U.S. Customs and Border Protection; Jason Owens, in his
official capacity as Chief of the U.S. Border Patrol; Juan Bernal, in his
official capacity as Acting 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 Haynes, Willett, and Duncan, Circuit Judges.

No. 23-50869
Stuart Kyle Duncan, Circuit Judge:1

PUBLISHED ORDER
Texas seeks an injunction pending appeal to prevent the United States
Border Patrol from cutting, destroying, or otherwise interfering with concer-
tina wire (“c-wire”) Texas has constructed along more than 29 miles of mu-
nicipal and private land in the Eagle Pass sector of our southern border. The
district court granted Texas a temporary restraining order, after which it held
hearings, heard testimony from multiple witnesses, and received copious
documentary evidence. Despite making numerous fact findings supporting
Texas’s claims, the district court ruled that the United States’ sovereign im-
munity had not been waived under 5 U.S.C. § 702 and that the court was
therefore barred from converting the TRO into a preliminary injunction.
Texas immediately appealed and sought an emergency injunction pending
appeal. The panel granted a temporary administrative stay while considering
the parties’ submissions.
Concluding that the district court legally erred with respect to sover-
eign immunity and that Texas has otherwise satisfied the factors under Nken
v. Holder, 556 U.S. 418, 434 (2009), we GRANT Texas’s request for an in-
junction pending appeal. Accordingly, Defendants are ENJOINED during
the pendency of this appeal from damaging, destroying, or otherwise inter-
fering with Texas’s c-wire fence in the vicinity of Eagle Pass, Texas, as indi-
cated in Texas’s complaint. As the parties have agreed, Defendants are per-
mitted to cut or move the c-wire if necessary to address any medical emer-
gency as specified in the TRO. See App. K at 4, 9–11 (Oct. 30, 2023).
_____________________
1 Judge Haynes would send this case to a merits panel as an expedited appeal
and would grant an administrative stay for a brief period of time, deferring the question of
the stay pending appeal to the oral argument merits panel which receives this case.
2
No. 23-50869
I. Facts and Proceedings

We briefly summarize the procedural history and the district court’s
relevant fact findings. See generally App. P at 6–10.
A.
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.
To guard the “vast stretches of land between” those points, Congress
created the Border Patrol, whose objective is to “deter illegal entry into the
United States.” In recent years, illegal crossings have increased dramatically.
“The 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.” Unsurprisingly, the situation has
been exploited by drug cartels, who have made “an incredibly lucrative
enterprise” out of trafficking human beings 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
through allocation of state resources. The activity in question here is Texas’s
“laying of concertina wire along several sections of [the] riverfront.” The c-
wire serves as a “deterrent—an effective one at that,” causing illegal
crossings to drop precipitously. “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 has set up a temporary processing center in Maverick County
on private land close to the Rio Grande. By September 2023, Texas had
3
No. 23-50869
installed over 29 miles of c-wire in this area. Both the Border Patrol and Texas
agree that the c-wire must be cut in the event of an emergency, such as the
threat of a migrant’s drowning or suffering heat exhaustion. “The problem
arises when Border Patrol agents cut the wire without prior notification to
[Texas] for reasons other than emergencies.”
B.
On October 24, 2023, Texas sued Defendants2 in federal court
alleging common law conversion, common law trespass to chattels, and
violations under the Administrative Procedure Act (“APA”). Among other
relief, Texas sought a preliminary injunction based on its trespass to chattels
claim. Three days later, Texas sought a TRO. The following day, Texas filed
a notice with the district court alleging that “the 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 on
October 30, 2023, 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 for a preliminary injunction;
heard testimony from multiple witnesses; and received thousands of pages of
evidence (including five videos) as a result of expedited discovery. The court
also twice extended the TRO.
Although the court would ultimately deny a preliminary injunction on
sovereign immunity grounds, the court made numerous fact findings
supporting Texas’s trespass to chattels claim. As a general matter, the court
_____________________
2
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.
4
No. 23-50869
rejected Defendants’ claims that the Border Patrol was justified in cutting the
c-wire: (1) to inspect, apprehend, and detain illegal aliens; and (2) to prevent
or address medical emergencies. To the contrary, the court found that the
Border Patrol cut the c-wire “for no apparent purpose other than to allow
migrants easier entrance further inland.”
While noting it was “aware of at least fourteen incidents of wire
cutting,” the court focused on a September 20 incident that was captured on
video and was, in the court’s view, “most illustrative.”3 In that incident,
Border Patrol agents cut two additional holes in the c-wire 15 feet away from
an existing hole and installed “a climbing rope for migrants.” Meanwhile, a
Border Patrol boat “passively observ[ed] a stream of migrants” crossing the
river who were never “interviewed, questioned as to citizenship, or in any
way hindered in their progress into the United States.” Instead, after letting
the migrants 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
immigration processing center.
The court first rejected as a factual matter Defendants’ claim that the
Border Patrol’s actions were intended to “inspect, apprehend, and process”
incoming aliens.4 The court found no alien was “inspected” at all. Moreover,
if agents intended to inspect, they could have done so without doing anything
_____________________
3
Because the video was not yet publicly available, the court included still photos
from the video as an appendix to its opinion. We have included the same photos as an
appendix to this order.
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) (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”).
5
No. 23-50869
to the wire. As the court noted, “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.” Nor was wire-cutting necessary to
“apprehend” or “process” aliens. Indeed, no one was “apprehended” or
placed in “custody”—as the court found, aliens coming through the holes
were merely waived along in the “hope that [they] will flow in an orderly
manner . . . to the nearest processing center.” Moreover, agents let “some
4,555 migrants [in] during [the September 20] incident, but only
2,680 presented themselves for processing.” Accordingly, the court found
that “[n]o reasonable interpretation of the[] definitions [of ‘apprehension’
or ‘detention’] can square with Border Patrol’s conduct.”
The court also rejected Defendants’ argument that wire-cutting was
generally necessary to prevent “medical emergencies.” To be sure, the court
(and the parties) recognized that “injury, drowning, dehydration, and fatigue
are real and common perils in this area of the border,” and so “medical
emergencies justify cutting or moving [Texas’s] fence.” But the court
rejected the notion that medical emergencies could justify any and all
destruction of the c-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.” 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.”
Despite these findings, the district court nonetheless denied Texas’s
request for a preliminary injunction. The court recognized that
5 U.S.C. § 702 generally waives the United States’ sovereign immunity for
claims for non-monetary relief based on an agency official’s act or failure to
act. Nonetheless, the court reasoned that § 702 does not “unequivocally”
6
No. 23-50869
encompass injunctive relief under common law conversion or trespass to

chattels claims. Additionally, the court found that, “at this early stage of the
case,” Texas had not shown the c-wire cutting resulted from final agency
action. Finally, the court found that there was “insufficient evidence at this
juncture” to support Texas’s ultra vires claim under 5 U.S.C.§ 706(2)(C).
Texas immediately appealed, seeking an emergency injunction
pending appeal or a temporary administrative stay while the panel considered
its motion. The panel granted an administrative stay. Defendants have since
filed an opposition to Texas’s request and Texas has filed a reply in support.
II. Standard of Review
“[W]e consider four factors in deciding whether the grant a stay
pending appeal: (1) whether [Texas] has made a strong showing that [it] is
likely to succeed on the merits; (2) whether [Texas] will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the public
interest lies.” SEC v. Barton, 79 F.4th 573, 581 (5th Cir. 2023) (quoting Nken,
556 U.S. at 434). When the United States is the opposing party, the third and
fourth requirements merge. Nken, 556 U.S. at 435.
III. Discussion
A.
We begin with Texas’s likelihood of success on the merits of its
common law trespass to chattels claim. For purposes of the TRO, the district
court concluded Texas was likely to prevail on this claim. But the court
nonetheless denied Texas’s requested preliminary injunction because it
concluded that 5 U.S.C. § 702 did not clearly waive sovereign immunity for
claims of this sort. We disagree.
7
No. 23-50869
The federal government and its agencies are immune from suits, even
by states, unless Congress clearly consents by waiving sovereign immunity.
See FDIC v. Meyer, 510 U.S. 471, 475 (1994); California v. Arizona, 440 U.S.
59, 61–62 (1979). Any waiver must be clear and ambiguities are construed
strictly in favor of immunity. La. Dep’t of Env’t Quality v. EPA, 730 F.3d 446,
448–49 (5th Cir. 2013).
Section 702 of the APA provides in relevant part:

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.
5 U.S.C. § 702. We have explained that § 702 “generally waives” sovereign
immunity, Apter v. HHS, 80 F.4th 579, 589 (5th Cir. 2023), including for
“suits seeking nonmonetary relief through nonstatutory judicial review of
agency action.” Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985); see also
Doe v. United States, 853 F.3d 792, 798–99 (5th Cir. 2017) (explaining that
§ 702 “broaden[s] the avenues for judicial review of agency action by
eliminating the defense of sovereign immunity” in suits seeking
nonmonetary relief).
Section 702 plainly waives immunity for Texas’s trespass to chattels

claim. That claim was brought as “[a]n 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.” Accordingly, Texas’s claim “shall not be
dismissed nor relief therein be denied on the ground that it is against the
8
No. 23-50869
United States.” 5 U.S.C. § 702. The district court legally erred by ruling
otherwise.
Instead of relying on Section 702’s plain terms, the district court read
the provision strictly to preclude an immunity waiver. The court would have
required a Fifth Circuit or Supreme Court decision explicitly reading “an
action” in § 702 to include state or common law trespass to chattels claims.
This misapplies the principle that courts should construe ambiguities strictly
in favor of sovereign immunity, however. See Sebelius v. Cloer, 569 U.S. 369,
380–81 (2013). That principle does not apply here because there is no
ambiguity. Section 702’s plain terms waive sovereign immunity for “any
suit” seeking nonmonetary relief in federal court. Richard Fallon et
al., Hart & Wechsler’s The Federal Courts and the
Federal System 902 (7th ed. 2015).
Numerous federal circuits follow this plain-language reading of
§ 702.5 For example, the D.C. Circuit has “repeatedly . . . rejected” the
argument that § 702’s waiver applies only to actions arising under the APA.
Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006) (“There is nothing in
the language of the second sentence of § 702 that restricts its waiver to suits
brought under the APA.”). That court explained that § 702’s “clear
purpose” was to “elimina[te] the sovereign immunity defense in all equitable
actions for specific relief against a Federal agency or officer acting in an
_____________________
5
See, e.g., Delano Farms Co. v. Ca. Table Grape Comm’n, 655 F.3d 1337, 1344 (Fed.
Cir. 2011); Veterans for Common Sense v. Shinseki, 644 F.3d 845, 866 (9th Cir. 2011); Mich-
igan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 775 (7th Cir. 2011); Blagojevich v. Gates, 519
F.3d 370, 371–72 (7th Cir. 2008); Puerto Rico v. United States, 490 F.3d 50, 57–58 (1st Cir.
2007); Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 672 (6th Cir. 2013); Presbyterian
Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989); Red Lake Band of Chip-
pewa Indians v. Barlow, 846 F.2d 474, 476 (8th Cir. 1988); B.K. Instrument, Inc. v. United
States, 715 F.2d 713, 724–25 (2d Cir. 1983).
9
No. 23-50869
official capacity.” Ibid. (quoting Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d
243, 244 (D.C. Cir. 1981)). Similarly, the Third Circuit has explained that
“the waiver of sovereign immunity in section 702 extends to all nonmonetary
claims against federal agencies and their officers, regardless of whether or not
the cases seek review of ‘agency action’ or ‘final agency action.’” Treasurer
of N.J. v. U.S. Dep’t of Treasury, 684 F.3d 382, 397 (3d Cir. 2012) (emphasis
added). Applying that principle, the court ruled the § 702 waiver applied to
New Jersey’s claims against the U.S. Treasury under the state’s unclaimed
property acts. Id. at 389–90, 400 n.19. In sum, the district court erred in
interpreting § 702, which by its plain terms waives the United States’
sovereign immunity for Texas’s trespass to chattels claim.6
Defendants do not meaningfully engage with the plain language of
§ 702 or with the precedents applying it. Instead, they raise alternative
arguments in support of the district court’s denial of a preliminary injunction.
All are unavailing.
First, Defendants argue that the Federal Tort Claims Act is the
exclusive remedy for all state tort actions, regardless of the remedy they seek.
We disagree. Defendants offer little support for this argument, which finds
no purchase in the language of the FTCA and has been rejected by our sister
_____________________
6
Our circuit does not appear to have addressed this § 702 issue directly. However,
in Alabama-Coushatta Tribe of Texas v. United States, 757 F.3d 484 (5th Cir. 2014), we
favorably cited both the D.C. Circuit’s Trudeau decision, as well as the 7th Circuit’s
Michigan v. U.S. Army Corps of Engineers decision, both of which adopt a plain-language
reading of § 702. See Alabama-Coushatta, 757 F.3d at 489. Additionally, we noted in
Alabama-Coushatta that part of the first sentence of § 702 (waiving immunity where a
person is “adversely affected or aggrieved by agency action within the meaning of a relevant
statute”) applies “when judicial review is sought pursuant to a statutory or non-statutory
cause of action that arises completely apart from the general provisions of the APA.” Ibid.
That view is entirely consistent with reading the second sentence of § 702 to waive
immunity for any nonmonetary claim, state or federal, as our sister circuits do.
10
No. 23-50869
circuits. See Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d at 775 (rejecting
argument that “the FTCA implicitly prohibits injunctive relief in tort suits
against the United States” as “read[ing] too much into congressional
silence”); see also U.S. Info. Agency v. Krc, 989 F.2d 1211, 1216 (D.C. Cir.
1993) (FTCA does not “impliedly forbid[] specific relief for tortious
interference with prospective employment opportunities”).
Next, Defendants argue that they enjoy intergovernmental immunity
against Texas’s claims. We again disagree. Defendants have no
intergovernmental immunity because Texas is exercising its rights only as a
proprietor, and, as the district court found, Texas is neither directly
regulating the Border Patrol nor discriminating against the federal
government. See United States v. Washington, 596 U.S. 832, 838–39 (2022)
(clarifying that the intergovernmental immunity doctrine only prohibits state
laws “that either regulat[e] the United States directly or discriminat[e]
against the Federal Government or those with whom it deals”) (citations and
internal quotation marks omitted).
Finally, Defendants argue they enjoy jurisdictional immunity under
the Immigration and Nationality Act (“INA”). They are again mistaken.
The INA bars lower courts from issuing injunctions against certain
immigration statutes, specifically 8 U.S.C. §§ 1221–1232. See 8 U.S.C.
§ 1252(f)(1). That bar does not apply here, however. To cut Texas’s c-wire,
Defendants did not rely on any of the statutes covered by the INA bar.
Instead, they relied on 8 U.S.C. §§ 1103(a)(3) and 1357(a)(3), neither of
which are covered. Accordingly, an injunction against the Defendants would,
at most, have only a “collateral effect on the operation” of the covered
statutes, which is permissible. See Garland v. Aleman Gonzalez, 596 U.S. 543,
553 n.4 (2022).
11
No. 23-50869
Having concluded Defendants do not enjoy sovereign immunity

against Texas’s trespass to chattels claim, we briefly consider Texas’s
likelihood of success on that claim. In its TRO, the district court concluded
that 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 on that claim. Defendants do not brief this
issue and have thus waived any argument. Bailey v. Shell W. E&P, Inc., 609
F.3d 710, 722 (5th Cir. 2010). We therefore agree with the district court that
Texas has demonstrated a strong likelihood of success on the merits of its
trespass to chattels claims.7
B.
We next consider whether Texas has shown it would be irreparably
injured absent a stay. The district court found Texas would suffer irreparable
harm “in the form of loss of control and use of its private property.” We see
no error, clear or otherwise, in this finding. See Jiao v. Xu, 28 F.4th 591, 598
(5th Cir. 2022).
The district court found that Defendants’ employees have repeatedly
“damage[d], 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.’” Accordingly, the court concluded that
“compensation for past injury cannot adequately redress the prospect of
continuing or future harm for which the only appropriate remedy would be
_____________________
7
Because we decide Texas is likely to succeed on this claim, we need not decide
whether Texas is also likely to succeed on its APA claims that Defendants have acted
arbitrarily and capriciously and, alternatively, that Defendants have acted ultra vires. We
express no opinion on those claims.
12
No. 23-50869
injunctive relief.” The district court was correct. When a trespass is

continuous such that stopping it would require a “multiplicity of suits,” an
injunction is justified. See, e.g., Donovan v. Pa. Co., 199 U.S. 279, 304–05
(1905) (where a case involves “a continuing trespass,” equitable relief is
necessary to “avoid[] a multiplicity of suits” and “the inadequacy of a legal
remedy . . . is quite apparent”); see also Rojas-Adam Corp. of Del. v. Young, 13
F.2d 988, 989–90 (5th Cir. 1926); 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 has been shown and
injunctive relief is appropriate. See Restatement (Second) of
Torts § 938 cmt. c (1979).8
C.
Finally, we turn to the public interest prong. See Nken, 556 U.S. at 435
(third and fourth prongs merge when United States is opposing party). The
district court, incorporating its TRO opinion by reference, focused its public
interest analysis on two distinct bases: preventing unlawful agency action and
deterring illegal immigration. Agreeing that the first ground plainly serves the
public interest and weighs in Texas’s favor, we need not consider the second.
See Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579,
585 (5th Cir. 2013).
“There is generally no public interest in the perpetuation of unlawful
agency action.” Louisiana v. Biden, 55 F.4th 1017, 1035 (5th Cir. 2022)
_____________________
8
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”).
13
No. 23-50869
(citation omitted). And 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)
(citation and quotations omitted). The district court found that the Border
Patrol exceeded its authority by cutting Texas’s c-wire fence for purposes
other than a medical emergency, inspection, or detention. Moreover, the
public interest supports clear protections for property rights from
government intrusion and control.9 Accordingly, we find no abuse of
discretion in the district court’s weighing of the public interest prong.
IV. Conclusion
Because Texas has carried its burden under the Nken factors, we
GRANT its request for an injunction pending appeal. Accordingly,
Defendants are ENJOINED during the pendency of this appeal 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. As the
parties have agreed, Defendants are permitted to cut or move the c-wire if
necessary to address any medical emergency as specified in the TRO. See
App. K at 4, 9–11 (Oct. 30, 2023).
_____________________
9
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); Minard Run Oil Co. v. U.S.
Forest Serv., 670 F.3d 236, 257 (3d Cir. 2011); Apple Inc. v. Samsung Elec. Co., Ltd., 809 F.3d
633, 647 (Fed. Cir. 2015).
14
No. 23-50869
APPENDIX
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19

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Case: 23-50869 Document: 49-1 Page: 1 Date Filed: 12/19/2023

United States Court of Appeals

December 19, 2023

Enclosed is an order entered in this case.

United States Court of Appeals

United States Department of Homeland Security;

Appeal from the United States District Court

Before Haynes, Willett, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:1

I. Facts and Proceedings

encompass injunctive relief under common law conversion or trespass to

Section 702 of the APA provides in relevant part:

Section 702 plainly waives immunity for Texas’s trespass to chattels

Having concluded Defendants do not enjoy sovereign immunity

injunctive relief.” The district court was correct. When a trespass is

(citation omitted). And there is “substantial public interest in having

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