In Fifth Cir., DoJ, On Behalf of CBP & DHS, Responds To State Of Texas' Nonsense Re Kirtz -- Waiver Of Immunity Sophistry On Land Razor Wire At Shelby Park.

A few days ago, Texas Gov. Abbott and AG (for now only!) Ken Paxton made a stupefyingly dumb argument, trying to say that a farming credit reporting case -- should control in the face of unmistakable statutory and Constitutional provisions that grant the federal government (and only the federal government) the right to handle border matters.

That was poppycock -- and this morning, the DoJ Civil Division made it all clear as day, for the Fifth Circuit -- lest those judges are unable to read the cases, for themselves.

Here's the money bit, from the able AUSAs in DC:

. . .The government respectfully responds to Texas’s letter concerning Department of Agriculture v. Kirtz, No. 22-846 (U.S. Feb. 8, 2024).

In Kirtz, the Supreme Court held that the Fair Credit Reporting Act (FCRA) waives sovereign immunity for damages claims asserting violations of that federal statute. Contrary to Texas’s suggestion that the Court “rejected” clear-statement rules, Letter 1 (citation omitted), Kirtz reiterated that “a waiver of sovereign immunity must be unmistakably clear in the language of the statute,” Kirtz, slip op. 5 (quotation omitted). The Supreme Court then held that this standard was satisfied by FCRA’s particular text, which is not at issue here.

This case does not involve an assertion that Congress waived immunity to suits under federal law, but rather Texas’s contention that the APA waives the United States’s immunity to suits under the law of every state. The government has explained that 5 U.S.C. § 702 does not apply to state-law claims at all, see DHS Br. 25-30, and that in particular, it does not waive immunity to state tort claims because the Federal Tort Claims Act (FTCA) “grants consent to suit” against the United States under state tort law and “expressly or impliedly forbids the relief which is sought,” 5 U.S.C. § 702; see DHS Br. 30-33. Kirtz involved neither § 702 nor state-law tort claims, and sheds no light on either.

Texas suggests that Kirtz “rejected the idea that another federal statute” can “impliedly preclude[] waiver.” Letter 1 (citation omitted). But while Kirtz applied a “strong presumption” that “federal statutes touching on the same topic” can “coexist harmoniously,” Kirtz, slip op. 20 (quotation omitted), Congress departed from this presumption in § 702, expressly making it inapplicable where “any other statute that grants consent to suit expressly or impliedly forbids the relief” sought. 5 U.S.C. § 702. “Congress has dealt in particularity” with state-law tort claims and “intended a specified remedy” (damages), such that Texas “cannot use the APA to end-run” the limitations the FTCA imposes. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 216 (2012) (quotation omitted). . . .

Now you know. There is essentially zero chance MAGA Abbott will prevail bere, in the end. Onward.

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