Filed Date: July 13, 2021
Case Ongoing
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This is a case challenging the Biden administration's decision to stop building a southern border wall. On July 13, 2021, the General Land Office of the State of Texas and its then-commissioner, George P. Bush (collectively, “GLO”) sued President Biden, the Department of Homeland Security (DHS), and the Secretary of DHS in the U.S. District Court for the Southern District of Texas. GLO challenged Proclamation 10142 (“the Proclamation”), which ordered DHS to stop construction of the southern U.S. border wall for which Congress had appropriated money. GLO alleged that the Proclamation and DHS’s observance of it violated separation of powers principles, as well as the Spending Clause, Take Care Clause, and Presentment Clause. GLO also claimed that the action violated appropriations statutes, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and substantive and procedural requirements of the Administrative Procedure Act (APA). Substantively, GLO asserted that the action was arbitrary, capricious, an abuse of discretion, contrary to constitutional law, and carried out without legal authority. They also asserted that DHS failed to abide by notice-and-comment procedures. GLO sought declaratory and injunctive relief and litigation costs, including attorneys’ fees. The case was originally assigned to Judge Ricardo H. Hinojosa, who recused himself two days after the complaint was filed. Judge Micaela Alvarez subsequently replaced Judge Hinojosa.
On October 21, 2021, the State of Missouri and the State of Texas sued the same defendants, plus U.S. Customs and Border Protection (CBP), in the same court on similar grounds (docket 7:21-cv-00420). Four days later, the defendants moved to consolidate the two cases. On November 8, 2021, Texas and Missouri moved for a preliminary injunction to enjoin the defendants from enforcing and implementing the Proclamation. On November 29, 2021, the district court granted the defendants’ motion to consolidate. 2021 WL 5588160.
GLO filed an amended complaint on December 22, 2021, adding a claim that the challenged action violated the Regulatory Flexibility Act. Filing of the amended complaint mooted an earlier motion to dismiss by the defendants, who filed a new motion to dismiss the amended complaint on January 10, 2022. The defendants asserted, among other arguments, that GLO lacked standing and a cause of action and that the President was not an appropriate defendant. The district court did not rule on this motion either, but instead issued a stay on February 22, 2022, based on the U.S. Supreme Court's grant of certiorari in Biden v. Texas, a case in which Texas challenged the Biden administration's suspension of DHS’s Migrant Protection Protocols.
On August 3, 2022, the district court issued an order and opinion granting in part the defendants’ first motion to dismiss, dismissing all of GLO’s claims apart from their claims alleging violations of the APA. The court held that the other statutes GLO cited did not create causes of action separate from the APA. The court also dismissed GLO's constitutional claims, holding that they were actually statutory claims and were not subject to judicial review. Finally, the court dismissed GLO's ultra vires claims (alleging that the government had acted in excess of its legal power) because GLO could already challenge the administration's actions under the APA. 619 F. Supp. 3d 673.
The court also granted the defendants’ second motion to dismiss, dismissing all of Texas’s and Missouri’s claims, rendering the States’ motion for preliminary injunction moot. The court found that Texas had violated the rule against claim splitting, warranting the dismissal of Texas as an independent party to protect the defendant from being harassed by repetitive actions based on the same claim. The defendants had argued that Missouri should also be dismissed as a plaintiff, based on their tenuous claim of being inundated with requests for driver's licenses by people who crossed over the border. The court agreed with the defendants and found that Missouri’s claims of financial harm from the defendants' acts were too attenuated to create standing, so the court granted the defendants’ motion to dismiss Missouri as a plaintiff.
Five days later, Texas and Missouri appealed from the orders of the district court dismissing the states’ action and denying their preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit.
On November 14, 2022, GLO moved to compel the introduction of additional materials to supplement the record and to produce a privilege log. The defendants argued, among other things, that the administrative record was sufficient to enable judicial review of GLO’s APA claims. On March 31, 2023, the district court issued an opinion and order denying GLO’s motion, finding the record to be sufficient. 2023 WL 2733388.
On June 16, 2023, the Fifth Circuit reversed the district court's August 3, 2022 order. First, the Fifth Circuit held that Texas should not be dismissed for claim splitting because the Texas General Land Office and Texas itself had divergent interests, so the two parties filing separate suits did not constitute claim splitting. Second, the court held that Texas had standing to sue because it had sufficiently pled that the lack of a border wall would cause higher costs in terms of driver's licenses, education, and healthcare. Because Texas had standing, the suit could continue without any analysis of Missouri's standing. However, the Fifth Circuit left the question of whether to issue a preliminary injunction to the discretion of the district court on remand. 71 F. 4th 264.
On July 7, 2023, GLO moved to join Texas and Missouri's motion for a preliminary injunction. The court granted GLO's motion to join the following month, on August 16, 2023.
On August 11, 2023, the case was transferred to Judge Drew B. Tipton for efficiency reasons. The parties filed supplemental briefings with regard to the preliminary injunction motion still before the court. Following the conclusion of briefings on December 19, 2023, Judge Tipton granted the joint motion for preliminary injunction in part on March 8, 2024.
The court determined that with regard to the plaintiffs’ APA-based arbitrary and capricious claims were not judicially reviewable. According to the court, discretionary agency spending was action committed to the agency’s discretion by law such that there was no meaningful standard against which to judge the agency’s exercise of discretion. The court also decline to reach the plaintiffs’ constitutional claims regarding the Take Care clause and separation-of-powers due to long-standing practice to avoid constitutional issues where there are other grounds which a decision can be reached; in this case, namely the APA. As such, the court did find the plaintiffs’ contrary-to-law APA claim reviewable with regard to violations of the appropriations statutes. 2024 WL 1023047.
The court ultimately agreed with the plaintiffs that the government failed to obligate funds for the construction of a barrier system. Rather, the government’s appropriations of funds were allocated for other purposes, such as mitigation and remediation efforts, repairing parts of the existing barrier, or other similar purposes. Seeing as funds ought to be used for the purposes for which they were appropriated, the court found that the plaintiffs were likely to succeed on the merits. As such, the funds in question could only be used for constructing physical barriers, such as additional walls or fencing. The court also determined the government’s actions would result in irreparable harm to the plaintiffs for the increase in illegal immigrants would impose costs on the plaintiff-states, including in the areas of driver’s licenses, education, and healthcare. As such, the court enjoined the government from implementing its July 2022 amended plan to the extent that its funding obligations are not authorized per the appropriations statutes. 2024 WL 1023047.
The government then filed an unopposed motion to stay the preliminary injunction on March 14, 2024. The government requested the stay to assess how best to comply with the court’s order. The stay was granted by the court, and was repeatedly extended through March 28, 2024. On March 28, a status conference was held between the parties and Judge Tipton provided “guidance” on the preliminary injunction order. However, no details are available on what this guidance entailed.
On April 10, 2024, the parties filed a joint motion for the court to both enter a final judgment and a permanent injunction consistent with the preliminary injunction as clarified by the court. Briefing on this matter is under way.
Following the court’s granting in part of the plaintiffs’ motion for preliminary injunction, there were also numerous motions to intervene in the case. Specifically, five different actors sought to intervene: contractors, environmental groups, and a ranch owner who suffered extensive environmental damage on his property. All intervenors alleged that the court’s preliminary injunction prohibited spending the appropriated money to either be spent to pay the contractors or to address the environmental damage caused by the existing barrier. The court eventually denied these motions to intervene in May 2024. In June, the intervenors appealed the court’s decision to the Fifth Circuit.
On April 22, 2024, the plaintiffs filed a memorandum in support of a full vacatur of the border wall plan pursuant to Proclamation 10142, as opposed to a partial vacatur which would require the court to determine—line by line—what could and could not “function sensibly” as part of the plan. The defendants responded to this on April 26.
On May 29, 2024, the court ruled on the parties’ prior joint motion for an entry of final judgment. The district court concluded that the plaintiffs demonstrated success on the merits of their claims brought under the APA for violations of the Appropriations Acts. The court, thus, granted a permanent injunction, enjoining and restraining the government from implementing the amended border wall plan. The government was also prohibited from obligating funds toward mitigation and remediation efforts, repair of existing barriers, or other similar purposes. The plaintiffs remaining claims were dismissed. 2024 WL 2754118.
Come November 2024, the government filed a motion to modify the final judgment and permanent injunction, requesting the court to clarify whether DHS can proceed with 40 miles of barrier construction projects as it relates to erosion and drainage measures.
Following the 2024 presidential election, on December 20, 2024, then President-Elect Donald Trump filed an amicus brief to enforce the permanent injunction. The brief also supported a status conference based on allegations that the government had violated the permanent injunction by disposing certain border construction materials.
On December 23, the government then filed a motion against the setting of a status conference, claiming that the allegations were false. The government claimed that the allegations misrepresented the government’s actions as violations of the permanent injunction. Specifically, the injunction limited the government’s activities as it relates to the border using DHS funds. However, the allegations at issue here were those expressly required by Congress for the Department of Defense (DoD) to undertake regarding disposal of excess border construction materials. The parties then filed a joint motion to stay the government’s disposition of border wall materials on December 31.
Ultimately, on February 7, 2025, the court entered an order in response to the motion to modify the final judgment. The court granted the government’s motion, finding that the drainage and erosion construction measures were not in violation of the court’s previous permanent injunction on use of DHS funds for certain border wall-related projects.
The case remains ongoing.
Summary Authors
Kevin Decker (4/5/2022)
Saba Khan (5/19/2023)
Micah Pollens-Dempsey (10/1/2023)
Kavitha Babu (2/17/2025)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/60056145/parties/the-general-land-office-of-the-state-of-texas-v-biden/
Alvarez, Micaela (Texas)
Al-Fuhaid, Munera (Texas)
Attorney, Ryan Daniel (Texas)
Baasch, Ryan (Texas)
Attorney, Anne M. (Texas)
See docket on RECAP: https://www.courtlistener.com/docket/60056145/the-general-land-office-of-the-state-of-texas-v-biden/
Last updated Oct. 21, 2025, 6:36 a.m.
State / Territory: Texas
Case Type(s):
Key Dates
Filing Date: July 13, 2021
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
The General Land Office of the State of Texas and its commissioner
Plaintiff Type(s):
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
United States (- United States (national) -), Federal
Defendant Type(s):
Case Details
Causes of Action:
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Injunction / Injunctive-like Settlement
Source of Relief:
Content of Injunction:
Order Duration: 2024 - None
Issues
General/Misc.:
Immigration/Border:
Presidential/Gubernatorial Authority: