IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

AMARILLO DIVISION

) 

STATE OF TEXAS, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) Civil Action No. 2:22-cv-00094-Z

) 

ALEJANDRO MAYORKAS, et al., ) 

 ) 

Defendants. ) 

 ) 

REPLY TO PLAINTIFFS’ OPPOSITION 

TO NOTICE OF SUPPLEMENTAL AUTHORITY 

Defendants offer this short response to an argument newly raised by Plaintiff in its 

opposition, ECF No. 130, to Defendants’ notice of supplemental authority regarding Arizona v. 

Garland, No. 6:22-cv-1130, 2024 WL 1645417 (W.D. La. Apr. 16, 2024), ECF No. 129, a decision 

dismissing a challenge by 17 States to the Asylum Officer Interim Final Rule (“IFR”) for lack of 

Article III standing.1 Plaintiff argues that the Arizona court’s decision to deny the government’s 

motion to transfer, which addresses whether the IFR implements 8 U.S.C. § 1225(b)(1), can be 

used offensively under the doctrine of issue preclusion to preclude Defendants from arguing the 

IFR is permitted by the Immigration and Nationality Act (“INA”) in this case. ECF No. 130 (citing 

Arizona, 2024 WL 1645417, at *8). 

Plaintiff’s argument is foreclosed by longstanding Supreme Court precedent. First, the 

doctrine of issue preclusion cannot be used offensively against the federal government. 

1

 The other arguments made by Plaintiff in its opposition filing also lack merit, for reasons already 

explained. See ECF Nos. 123, 128. Much of Plaintiff’s filing improperly provides additional 

briefing regarding its opposition to Defendants’ Motion to Reconsider the Court’s ruling on the 

motion to dismiss. See, e.g., ECF No. 130 at 6-8. 

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“[N]onmutual offensive collateral estoppel simply does not apply against the government[.]” 

United States v. Mendoza, 464 U.S. 154, 162 (1984). “The conduct of government litigation in the 

courts of the United States is sufficiently different from the conduct of private civil litigation in 

those courts so that what might otherwise be economy interests underlying a broad application of 

collateral estoppel are outweighed by the constraints which peculiarly affect the government.” Id.

at 162-63. 

Even if issue preclusion could be employed against Defendants here, its elements are not 

satisfied. “Issue preclusion or collateral estoppel is appropriate when: (1) the identical issue was 

previously adjudicated; (2) the issue was actually litigated; and (3) the previous determination was 

necessary to the decision.” Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th Cir. 2005). 

Further, “a dismissal for lack of jurisdiction,” such as Arizona’s dismissal for lack of standing, 

would only “preclude relitigation of the issues determined in ruling on the jurisdiction question” 

itself. Miller v. Nationwide Life Ins. Co., No. 06-31178, 2008 WL 3086783, at *4 (5th Cir. Aug. 

6, 2008) (emphasis added). The court’s discussion of whether the IFR implements section 

1225(b)(1), 2024 WL 1645417 at *5-*8, was not part of its determination of the standing issue and 

not “necessary to the decision” dismissing the case for lack of standing in Arizona, id. at *16.2

 

Arizona entered judgment for the federal government, holding that the States lacked Article 

III standing to challenge the IFR. Arizona did not enter judgment for the States, and its discussion 

of the IFR’s statutory legal authority concerned the ancillary issue of whether to transfer venue. 

Id. The court’s determination on transfer was unconnected to its determination that the States 

lacked standing, id. at 14, and the section 1225(b)(1) and 1252(e) discussion was dicta as far as 

2

 Moreover, Arizona’s conclusion that the IFR does not implement section 1225(b)(1) is flatly at 

odds with this Court’s contrary conclusion, ECF No. 68 at 4. 

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Arizona’s judgment against the States was concerned. The issue to be precluded must be 

“necessary to the ultimate outcome of the prior proceeding.” Bobby v. Bies, 556 U.S. 825, 829 

(2009) (“Issue preclusion ... does not transform final judgment losers, in civil or criminal 

proceedings, into partially prevailing parties.”); see Restatement (Second) of Judgments § 27 

(1982) (explaining issue preclusion does not apply to determinations where “the judgment is not 

dependent upon the determinations,” which “have the characteristics of dicta”). Plaintiff cannot 

impose issue preclusion based on a court’s language that was unrelated to its judgment that went 

the other way. 

A court has “leeway to choose among threshold grounds for denying audience to a case on 

the merits” but when it resolves a case on a threshold ground, it does “not proceed at all to an 

adjudication of the cause.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 

(2007) (emphasis added) (internal quotation omitted). Thus, where a court dismisses claims based 

on a jurisdictional defect such as standing, the dismissal by definition does not reach the merits 

(which are what Plaintiff seeks to use Arizona’s discussion of the IFR’s implementing statute for 

here), and discussion of issues unrelated to the jurisdictional defect have no preclusive effect. See 

Miller, 2008 WL 3086783, at *4; Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) 

(“Dismissal with prejudice for failure to state a claim is a decision on the merits and essentially 

ends the plaintiff's lawsuit, whereas a dismissal on jurisdictional grounds alone is not on the merits 

....”). Indeed, where Arizona did in fact reach the merits, it dismissed those claims with prejudice, 

further reinforcing the fact that its omnibus dismissal without prejudice for lack of standing did 

not address the merits of the States’ claims. See 2024 WL 1645417 at *16 (dismissing with 

prejudice the Secure Fence Act and Take Care Clause claims on the additional ground that they 

failed to state a claim under Fed. R. Civ. P. 12(b)(6)). Plaintiff thus has no basis for arguing that 

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Arizona has preclusive effect for the merits of its Administrative Procedure Act claims here. 

For the foregoing reasons, Arizona’s discussion of the IFR’s statutory authority has no 

preclusive effect here. 

Date: May 10, 2024 Respectfully submitted, 

 BRIAN M. BOYNTON 

 Principal Deputy Assistant Attorney General 

 WILLIAM C. PEACHEY 

 Director 

 Office of Immigration Litigation 

District Court Section 

EREZ REUVENI 

Counsel

BRIAN C. WARD 

Senior Litigation Counsel

/s/ Joseph A. Darrow 

JOSEPH A. DARROW 

ERIN T. RYAN 

ELISSA P. FUDIM 

Trial Attorneys 

U.S. Department of Justice 

Civil Division 

Office of Immigration Litigation 

District Court Section 

P.O. Box 868, Ben Franklin Station 

Washington, DC 20044 

Tel.: 202-598-7537 

Email: joseph.a.darrow@usdoj.gov 

Counsel for Defendants 

 

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CERTIFICATE OF SERVICE 

 I hereby certify that on May 10, 2024, I electronically filed the foregoing with the Clerk of 

the Court using CM/ECF, which provided an electronic notice and electronic link of the same to 

all attorneys of record. 

By: /s/ Joseph A. Darrow 

JOSEPH A. DARROW 

United States Department of Justice 

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