United States Court of Appeals

for the Fifth Circuit

No. 21-30505

State of Louisiana; State of Alabama; State of Alaska; 

State of Arkansas; State of Georgia; State of 

Mississippi; State of Missouri; State of Montana; State 

of Nebraska; State of Oklahoma; State of Texas; State 

of Utah; State of West Virginia, 

Plaintiffs—Appellees,

versus

Joseph R. Biden, Jr., in his official capacity as President of the United 

States; Deb Haaland, in her official capacity as Secretary of the Interior; 

Michael Nedd, in his official capacity as Deputy Director of the Bureau of 

Land Management; Chad Padgett, in his official capacity as Director of 

the Bureau of Land Management Alaska Office; Raymond Suazo, in his 

official capacity as Director for the Bureau of Land Management Arizona Office; 

Karen Mouritsen, in her official capacity as Director for the Bureau of 

Land Management California Office; Jamie Connell, in his official 

capacity as Director for the Bureau of Land Management Colorado Office; 

Mitchell Leverette, in his official capacity as Director for the Bureau of 

Land Management Eastern States Office; John Ruhs, in his official capacity 

as Director for the Bureau of Land Management Idaho Office; John 

Mehlhoff, in his official capacity as Director for the Bureau of Land 

Management Montana-Dakotas Office; Jon Raby, in his official capacity as 

Director for the Bureau of Land Management Nevada Office; Steve Wells, 

in his official capacity as Director for the Bureau of Land Management New 

Mexico Office; Barry Bushue, in his official capacity as Director for the 

Bureau of Land Management Oregon-Washington Office; Greg Sheehan, 

in his official capacity as Director for the Bureau of Land Management Utah 

Office; Kim Liebhauser, in her official capacity as Director for the Bureau 

United States Court of Appeals

Fifth Circuit

FILED

August 17, 2022

Lyle W. Cayce

Clerk

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of Land Management Wyoming Office; Amanda Lefton, in her official 

capacity as Director of the Bureau of Ocean Energy Management; Michael 

Celata, in his official capacity as Regional Director of the Bureau of Ocean 

Energy Management Gulf of Mexico Office; Lars Herbst, in his official 

capacity as Regional Director of the Bureau of Safety and Environmental 

Enforcement Gulf of Mexico OCS Office; Mark Fesmire, in his official 

capacity as Regional Director of the Bureau of Safety and Environmental 

Enforcement Alaska and Pacific Office, 

Defendants—Appellants.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:21-CV-778

Before Higginbotham, Dennis, and Graves, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

The district court issued a nationwide preliminary injunction

enjoining President Biden and various Department of Interior officials (the 

“Government”) from pausing oil and gas lease sales. Because the district 

court’s order and accompanying memorandum lack specificity, we vacate 

and remand. 

I.

On January 20, 2021, Acting Secretary of the Interior Scott de la Vega

suspended delegated authority “[t]o issue any onshore or offshore fossil fuel 

authorization . . . .” On January 27, 2021, President Biden issued Executive 

Order 14,008.1 This case centers on Section 208 of the Executive Order, 

which includes the following: 

1 Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7619, 7624–25 

(Jan. 27, 2021).

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To the extent consistent with applicable law, the Secretary of 

the Interior shall pause new oil and natural gas leases on public 

lands or in offshore waters pending completion of a 

comprehensive review and reconsideration of Federal oil and 

gas permitting and leasing practices in light of the Secretary of 

the Interior’s broad stewardship responsibilities over the 

public lands and in offshore waters, including potential climate 

and other impacts associated with oil and gas activities on 

public lands or in offshore waters.2

On the same day, the Bureau of Land Management published a fact 

sheet about the Executive Order, explaining that the pause of new oil and 

natural gas leasing did not impact existing operations and instead provided a 

chance to review the federal oil and gas program to ensure it served the public 

interest so as to “restore balance on America’s public lands and waters to 

benefit current and future generations.”3 At the time the district court 

entered the injunction, no onshore oil and gas lease sale had been held since 

the Executive Order. 

As to offshore lease sales, the parties specifically litigate regarding

Lease Sale 257 in the Gulf of Mexico4 and Lease Sale 258 in Cook Inlet, 

Alaska.5 Lease Sale 257 was held following the district court’s order. As to 

Lease Sale 258, on February 23, 2021, the Bureau of Ocean Energy 

Management cancelled the public comment period and virtual hearings per 

2 Id. (emphasis added). 

3 Fact Sheet: President Biden to Take Action to Uphold Commitment to Restore 

Balance on Public Lands and Waters, Invest in Clean Energy Future, Bureau of Land 

Management (Jan. 27, 2021), https://www.blm.gov/press-release/fact-sheet-presidentbiden-take-action-uphold-commitment-restore-balance-public-lands(last visited August 3, 

2022). 

4 86 Fed. Reg. 10132 (Feb. 18, 2021).

5 85 Fed. Reg. 55859 (Sept. 10, 2020).

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the Executive Order, ostensibly to avoid administrative costs while the sale 

was under review.6

On March 24, 2021, thirteen states7 (the “States”) filed a complaint 

seeking injunctive relief and alleging that the Department of Interior violated 

the Administrative Procedure Act by actions that were contrary to law, 

arbitrary and capricious, and for failing to go through notice and comment 

when implementing lease sale postponements or cancellations.8 On March 

31, 2021, the States moved for a preliminary injunction, which the district 

court granted on June 15, 2021. The Government timely appealed.

II.

As a threshold issue, we address whether the Government waived its

argument that the injunction failed to meet Federal Rule of Civil Procedure

Rule 65(d).

9 The Government’s opening brief argued that the injunction 

must be reversed because the injunction is tantamount to enjoining an 

6 86 Fed. Reg. 10994 (Feb. 23, 2021).

7 The states are Alabama, Alaska, Arkansas, Georgia, Louisiana, Mississippi, 

Missouri, Montana, Nebraska, Oklahoma, Texas, Utah, and West Virginia.

8 The States characterize the lease actions as “cancellations,” while the 

Government characterize them as “postponements.” The complaint included four 

additional counts that did not seek injunctive relief: two counts under the APA for unlawful 

withholding or unreasonable delay of lease sales, a Citizen Suit under the Outer Continental 

Shelf Lands Act (“OCSLA”), and an ultra vires claim which alleged that President Biden 

exceeded his authority under the Mineral Leasing Act and OCSLA.

9 The Rule requires: 

Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued;

(B) state its terms specifically; and

(C) describe in reasonable detail--and not by referring to the complaint or other 

document--the act or acts restrained or required.

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Executive Order, which is not subject to judicial review. The States 

countered that the district court did not enjoin the Executive Order, instead 

enjoining “the unwritten but conspicuous nationwide lease-sale ‘Pause’ as 

final agency action reviewable under the APA.” The Government replied 

that the States mischaracterized the injunction, but that if the district court 

had found an unwritten pause, then such an injunction would fail to comply 

with Rule 65.

The Government first invoked Rule 65 in its reply brief. Although we 

typically do not entertain arguments raised for the first time in a reply brief,10

we will when a new issue is raised in the appellee’s brief and the appellant 

responds in the reply brief.11 This avoids the unfairness of the situation when 

“an appellant raises a completely new issue in its reply brief, disadvantaging 

the appellee, and for which the procedural bar concerning initial briefs was 

properly developed and utilized.”12 Here, the States raised a new issue in 

their brief by positing the district court enjoined an unwritten pause, to which 

the Government responded in their reply brief, invoking Rule 65. Applying 

our precedent, we exercise our discretion to address the merits of the Rule 

65 issue.13

III.

“We review a preliminary injunction for abuse of discretion, 

reviewing findings of fact for clear error and conclusions of law de novo.”14

10 United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009).

11 Id.

12 Id.

13 Id.

14 Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 537 (5th Cir. 2013).

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Whether an injunction fulfills the mandates of Fed. R. Civ. P. 65(d) is a 

question of law we review de novo.

15 

IV. 

The district court’s order is as follows: 

IT IS THEREFORE ORDERED that [Agency Defendants] 

are hereby ENJOINED and RESTRAINED from 

implementing the Pause of new oil and natural gas leases on 

public lands or in offshore waters as set forth in [the Executive 

Order] and as set forth in all documents implementing the 

terms of said Executive Order by said defendants, as to all 

eligible lands.

IT IS FURTHER ORDERED that the said Agency 

Defendants shall be ENJOINED and RESTRAINED from 

implementing said Pause with respect to Lease Sale 257, Lease 

Sale 258 and to all eligible onshore properties.16

The order enjoins implementation of the “Pause” but does not define 

that term. The district court’s accompanying memorandum defines the 

Pause without precision, leading the parties to differ in their interpretation of 

the Pause’s breadth. The Government argues that the Pause refers to and 

enjoins the Executive Order itself and the States argue that the Pause refers 

to an unwritten policy. The district court’s memorandum opens: 

The issue before this Court is whether the Plaintiff States are 

entitled to a preliminary injunction against the Government 

Defendants as a result of the implementation of a “pause” of 

new oil and natural gas leases on public lands or in offshore 

waters (“Pause”) after Executive Order 14008 was signed by 

15 Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016). 

16 The district court defined “Agency Defendants” as all defendants other than 

President Biden. 

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President Joseph R. Biden, Jr. (“President Biden”) on January 

27, 2021.

This is the only place in the memorandum where “Pause” is defined 

as a term. However, the district court devoted several pages to a section 

titled, “Is there a Pause?” In that section, the district court discussed the 

Executive Order and actions of the Acting Secretary of the Interior, by the

Bureau of Land Management and Bureau of Ocean Energy Management, and 

internal communications within the Department of Interior. The States 

contend this illustrates that the Pause is defined to encompass an unwritten 

policy of the Government. While that is a possible interpretation, the district 

court’s order did not state that with specificity. The memorandum did not 

refer to an unwritten policy when it defined “Pause,” and the section titled, 

“Is there a Pause?” did not state whether the Pause was unwritten.

To comply with Rule 65(d) a district court’s order should state its 

terms specifically and describe in reasonable detail the conduct restrained or 

required.

17 This drafting standard means “that an ordinary person reading 

the court’s order should be able to ascertain from the document itself exactly 

what conduct is proscribed.”18 “The rule embodies the elementary due 

process requirement of notice.”19 The Supreme Court has repeatedly 

emphasized that “the specificity provisions of Rule 65(d) are no mere 

technical requirements.”20 “The Rule was designed to prevent uncertainty 

17 Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 586 

(5th Cir. 2013) (quoting FED. R. CIV. P. 65(d)).

18 U. S. Steel Corp. v. United Mine Workers of Am., 519 F.2d 1236, 1246 n.20 (5th 

Cir. 1975) (quoting WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2955 at 536–

37 (1973)).

19 Id. at 1246.

20 Schmidt v. Lessard, 414 U.S. 473, 476 (1974).

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and confusion on the part of those faced with injunctive orders, and to avoid 

the possible founding of a contempt citation on a decree too vague to be 

understood.”21

The present injunction fails to meet Rule 65(d) requirements. We 

cannot reach the merits of the Government’s challenge when we cannot 

ascertain from the record what conduct—an unwritten agency policy, a 

written policy outside of the Executive Order, or the Executive Order itself—

is enjoined. Our review of APA claims must begin by determining if there was 

final agency action.22 Where, as here, it is unclear what final agency action 

the district court predicated its order upon, we are unable to reach the merits 

of the appeal.

V.

The order below does not satisfy the requirements of Rule 65(d). 

Accordingly, we VACATE the judgment of the district court and REMAND 

the case to that court for further proceedings consistent with this opinion.

21 Id.

22 Bennett v. Spear, 520 U.S. 154, 177–78 (1997).

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