1 

United States District Court

Northern District of Texas

Amarillo Division

STATE OF TEXAS,

Plaintiff,

v.

ALEJANDRO MAYORKAS, in his official 

capacity as Secretary of Homeland 

Security, et al., 

Defendants.

Case 2:22-cv-00094

Texas’s Brief on 8 U.S.C. § 1252(f)(1)

Section 1252(f)(1) does not prevent the Court from hearing this case. That 

section forbids lower courts “to enjoin or restrain the operation” of certain 

provisions of the Immigration and Naturalization Act, but it does not affect a 

district court’s authority to vacate an unlawful action or to enter declaratory

relief. And whether that section limits the remedies a district court may order

(such as under the APA or its inherent equitable powers) or rescinds an 

otherwise-applicable waiver of sovereign immunity (such as under 5 U.S.C. 

§ 702), those protections may be forfeited. 

Argument

A. Section 1252(f)(1) does not deprive the Court of jurisdiction. 

Section 1252(f)(1) does not affect the Court’s power to hear this APA 

challenge. That section prevents an order that “enjoin[s] or restrain[s]” the 

operation of part IV; it does not prevent an order holding the Defendants to the 

terms of part IV. To the extent that section affects this case at all, it limits the 

available remedies, not the Court’s jurisdiction. Because section 1252(f)(1)’s 

text limits only injunctive relief, it does not affect district courts’ authority to 

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vacate unlawful administrative action under the APA or to issue declaratory 

relief.

1. The district court’s injunction falls outside section 1252(f)(1)’s 

scope.

Section 1252(f)(1) prohibits injunctive relief only where such relief 

“enjoin[s] or restrain[s] the operation” of covered sections of the INA. Read in 

context, section 1252(f)(1) prevents the Court from prohibiting the enforcement 

of those sections, but it does not prevent it from requiring such enforcement.

The word “enjoin” is a “term[] of art in equity” that “refer[s] to” an “equitable 

remed[y] that restrict[s] or stop[s] official action.” Direct Mktg. Assn. v. Brohl, 

575 U.S. 1, 13 (2015). Under section 1252(f)(1), the official action to be enjoined 

or restrained is the “operation”—“the state of being active or functioning”—of 

the specified sections See Oxford English Reference Dictionary 1018; see also 

Webster’s Third New International Dictionary of the English Language 1581

(2002). Taken together, these terms mean that the Court cannot prohibit or 

prevent the functioning of part IV of the INA.

But section 1252(f)(1) does not prohibit injunctions requiring the Executive 

to continue the functioning of the INA. An injunction against a violation of a 

statute does not “forbid” or “prevent” that statute’s “functioning.” It instead

aids its operation. Thus, section 1252(f)(1) permits injunctions requiring 

continued enforcement of covered sections while forbidding lower courts from 

prohibiting executive enforcement of those provisions.1

The relief Texas seeks here would not enjoin or restrain the operation of 

covered sections of the INA. Rather, it seeks to prevent the Defendants from 

1 Section 1252(f)(2) reinforces this conclusion: it prohibits enjoining executive action—

namely, “the removal of any alien pursuant to a final order”—but does not restrict 

injunctions against the Executive’s refusal to act.

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implementing illegal administrative action of the sort that the Court has 

earlier found would lead to “systemic violation of” the INA’s requirements.

Texas v. Biden, 554 F. Supp. 3d 818, 852, 857 (N.D. Tex. 2021). If the 

Defendants’ Interim Final Rule is, in fact, in conflict with the requirements of 

the INA and the Constitution, an order setting that rule aside and preventing 

the Defendants from implementing it will neither enjoin nor restrain their 

exercise of statutory authority; it will instead confine them to their statutory 

authority. Such an injunction falls outside section 1252(f)(1)’s limitation.

The relief Texas seeks here is different in kind from injunctions the 

Supreme Court has previously considered in the section 1252(f)(1) context. For 

example, the lower courts in Nielsen v. Preap had enjoined section 1226’s 

detention mandate, “holding that criminal aliens are exempt from mandatory 

detention under [8 U.S.C.] § 1226(c) (and are thus entitled to a bond hearing) 

unless they are arrested when [they are] released, and no later.” 139 S. Ct. 954,

961 (2019) (internal quotation marks omitted). Though the Court did not reach 

the issue, that injunction prevented the enforcement of Congress’s detention 

requirements pending resolution of the merits—and thus violated section 

1252(f)(1). Id. at 962. Setting aside the Interim Final Rule, however, would do 

nothing of the sort.

Nor does this case resemble the injunction in Gonzalez v. Garland. 142 

S. Ct. 919 (2021) (granting certiorari to Aleman Gonzalez v. Barr, 955 F.3d 762

(9th Cir. 2020)). There, the Ninth Circuit determined that the plaintiffs were

“likely to succeed on the merits of their claim that § 1231(a)(6) requires the 

Government to provide class members individualized bond hearings.” Aleman 

Gonzalez, 955 F.3d at 765. Where the injunction in Gonzalez would restrain 

the Executive’s ability to remove aliens that Congress has deemed removable 

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by requiring bond hearings, id., setting aside the Interim Final Rule would do 

no such thing.

Finally, reading section 1252(f)(1) to divest the Court of jurisdiction would

take it out of context and read it ahistorically. The Illegal Immigration Reform 

and Immigration Responsibility Act, which enacted section 1252(f)(1) in its 

current form, was passed in response to persistent executive refusal to enforce 

Congress’s immigration mandates. The legislative history confirms that 

Congress did not intend for section 1252(f)(1) to prevent courts from enjoining 

administrative policies seeking to nullify detention mandates. As a report of 

the House Judiciary Committee noted, section 1252(f)(1) was designed to 

ensure that “the new removal procedures established in this legislation . . . will 

remain in force while . . . lawsuits are pending.” H.R. Rep. No. 104-469, at 161 

(1996). This history confirms that section 1252(f)(1) lacks the “clearest 

command” this Court requires to extinguish equitable authority. Califano v. 

Yamasaki, 442 U.S. 682, 705 (1979).

2. Section 1252(f)(1) is a remedial limitation only.

a. Section 1252(f)(1) limits the lower courts’ equitable 

remedies, not their jurisdiction.

Even if section 1252(f)(1) applied, it would not limit the Court’s jurisdiction, 

only the available remedies for those claims. Though the distinction can be

blurry, cf. Fort Bend County v. Davis, 139 S. Ct. 1843, 1848–49 (2019), section 

1252(f)(1) is best understood as limiting lower courts’ remedial powers.

First and foremost, the Supreme Court has described section 1252(f)(1) as 

a remedial limitation. “By its plain terms, and even by its title, [section 

1252(f)(1)] is nothing more or less than a limit on injunctive relief.” Reno v. 

Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 481 (1999) (“AADC”).

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When responding to a meritless argument that section 1252(f)(1) conferred 

lower-court jurisdiction, this Court held that it “plainly serves as a limit on 

injunctive relief rather than as a jurisdictional grant” Id. at 487. If section 

1252(f)(1) unambiguously restricted the lower courts’ jurisdiction, this Court 

would have said so.

Only section 1252(f)(1)’s imprecise use of the term “jurisdiction” suggests 

otherwise. “Jurisdictional requirements mark the bounds of a ‘court’s 

adjudicatory authority.’” Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, 1497

(2022) (citation omitted). Statutes are truly jurisdictional only if Congress 

clearly indicates they restrict a court’s power to hear a case. Id. A court’s

subject-matter jurisdiction is affected only if a statute delineates “the classes 

of cases a court may entertain.” Davis, 139 S. Ct. at 1848. As neither Congress 

nor the Supreme Court has used the term “jurisdiction” consistently, see 

Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714 & n.3 (2019), a nonjurisdictional requirement does not become one merely because the term 

appears in close proximity. Cf. Sebelius v. Auburn Regl. Med. Ctr., 568 U.S. 

145, 155 (2013). 

Section 1252(f)(1) does not unambiguously speak in jurisdictional terms.

“[I]t is a cardinal rule of statutory construction that when Congress employs a 

term of art it presumably knows and adopts the cluster of ideas that were 

attached” to that term. Air Wisc. Airlines Corp. v. Hoeper, 571 U.S. 237, 248 

(2014) (cleaned up). Congress’s use of the term “jurisdiction” here tracks

twentieth-century usages of the term as concerning when a court may grant 

relief—not when it has the power to adjudicate a case. E.g., Steel Co. v. Citizens 

for a Better Envt., 523 U.S. 83, 90-93 (1998); Glidden Co. v. Zdanok, 370 U.S. 

530, 557 (1962).

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Consistent with this traditional understanding, “jurisdiction” as used in 

section 1152(f)(1) means “nothing more or less than a limit on injunctive relief.” 

AADC, 525 U.S. at 481. Congress used “jurisdiction” and “authority” in that 

section as synonyms in defining what courts may “enjoin and restrain.” See

generally Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141 (2018)

(discussing distribution of antecedents). And the Supreme Court has 

characterized that section as “‘prohibit[ing] federal courts from granting 

classwide injunctive relief.’” Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018) 

(quoting AADC, 525 U.S. at 481); Nken v. Holder, 556 U.S. 418, 431 (2009). 

This conclusion is bolstered by section 1252’s structure. See, e.g., Minerva 

Surgical, Inc. v. Hologic, Inc., 141 S. Ct. 2298, 2307 (2021); Rotkiske v. Klemm, 

140 S. Ct. 355, 360 (2019). The subsection title places a “[l]imit on injunctive 

relief.” 8 U.S.C. § 1252(f). Moreover, where Congress wanted to make 

“[m]atters not subject to judicial review” in section 1252, it did so expressly—

in a different paragraph. Id. § 1252(a)(2). That Congress limited the federal 

courts’ jurisdiction unambiguously elsewhere in section 1252 strongly suggests 

that it did not do so through section 1252(f)(1).

Finally, other well-established principles support the interpretation of 

section 1252(f)(1) as a remedial limitation. There is a “strong presumption 

favoring judicial review of administrative action,” and “Congress is presumed 

to legislate with it in mind.” Salinas v. U.S. R.R. Retirement Bd., 141 S. Ct. 

691, 698 (2021). If section 1252(f)(1) were a jurisdictional rule, it would require

litigants to raise certain challenges in the Supreme Court in the first instance. 

But such claims must be brought against the United States or one of its 

officers—falling within the Supreme Court’s appellate jurisdiction and

generally not within its original jurisdiction. U.S. Const. art. III, § 2, cl. 2. Such 

an expansion of the Court’s original jurisdiction would violate Article III. Ortiz 

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v. United States, 138 S. Ct. 2165, 2173 (2018). Because interpreting section 

1252(f)(1) as a remedial limitation both preserves judicial review and “avoids 

placing its constitutionality in doubt,” that is the interpretation required by 

well-established canons of construction. Antonin Scalia & Bryan A. Garner, 

Reading Law: The Interpretation of Legal Texts 247 (2012).

b. Section 1252(f)(1) permits vacatur of unlawful 

administrative action and declaratory relief.

Section 1252(f)(1) does not affect the Court’s authority under the APA to 

“vacate and remand,” 5 U.S.C. § 706, the Interim Final Rule. That remedy is 

distinct from injunctive relief. A district court’s authority to set aside or vacate 

administrative action under the APA differs from its power to enjoin unlawful 

action. Vacatur is a “less drastic remedy” than an injunction. Monsanto Co. v. 

Geertson Seed Farms, 561 U.S. 139, 165–66 (2010). An order vacating 

administrative action does not “enjoin or restrain” the INA’s operation because 

vacatur alone does not enjoin anything.

Like vacatur, declaratory relief is distinct from injunctive relief. Though a 

declaratory judgment binds the parties, “Congress plainly intended 

declaratory relief to act as an alternative” to injunctive relief, Steffel v. 

Thompson, 415 U.S. 452, 466 (1974), because declaratory relief does not 

directly coerce any party or enjoin any action. Section 1252(f)(1)’s silence 

regarding declaratory relief stands in contrast to the preceding subsection, 

which explicitly enumerates “declaratory, injunctive, or other equitable relief.” 

8 U.S.C. § 1252(e)(1)(A). The APA similarly distinguishes between “declaratory 

judgments” and “writs of prohibitory or mandatory injunction.” 5 U.S.C. § 703. 

Section 1252(f)(1), in contrast, refers to injunctive relief alone. “[W]hen 

‘Congress includes particular language in one section of a statute but omits it 

in another section of the same Act, it is generally presumed that Congress acts 

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intentionally and purposely in the disparate inclusion or exclusion.’” Barnhart 

v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (citation omitted).

Consistent with section 1252’s text, the Supreme Court has suggested that 

section 1252(f)(1) does not bar declaratory relief. Jennings, 138 S. Ct. at 851 

(“[I]f the Court of Appeals concludes that it may issue only declaratory relief 

[under § 1252(f)(1)], then the Court of Appeals should decide whether that 

remedy can sustain the class on its own.”). The Jennings dissent explicitly 

embraced that view. Id. at 875. And the Preap plurality similarly indicated 

that section 1252(f)(1) did not deprive courts of jurisdiction to entertain a 

“request for declaratory relief.” 139 S. Ct. at 962. Even where section 1252(f)(1) 

prohibits a given injunction, it does not limit district courts’ power to issue 

declaratory relief.

B. Section 1252(f)(1)’s Limitation is Subject to Forfeiture.

Whether understood as a limitation on remedies or jurisdiction, however,

section 1252(f)(1) is subject to forfeiture. Remedial limitations may be forfeited.

Even if section 1252(f)(1) were jurisdictional, it would be a limit on the federal 

government’s waiver of sovereign immunity—which sounds in personal

jurisdiction, and thus likewise may be forfeited. In either event, petitioners 

have forfeited section 1252(f)(1)’s limitation.

1. Because section 1252(f)(1) is non-jurisdictional, it may be 

forfeited.

It is well established that non-jurisdictional objections are forfeitable if a 

party does not properly invoke them. E.g., Fed. R. Civ. P. 12(b) & 12(h). This 

principle extends to countless non-jurisdictional requirements. Even a 

“mandatory claim-processing rule [is] subject to forfeiture if not properly 

raised.” Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16 (2017). 

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This Court, for example, has construed Rule 23(f)’s time limit for taking an 

immediate appeal as waivable. Nutraceutical Corp., 139 S. Ct. at 714 & n.3. 

Likewise, parties may forfeit objections to personal jurisdiction and venue. 

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999); Hoffman v. Blaski, 

363 U.S. 335, 343 (1960). If understood as a non-jurisdictional remedial 

limitation, section 1252(f)(1) is thus subject to forfeiture.

2. Even if section 1252(f)(1) were jurisdictional, it would still be

subject to forfeiture. 

Even if section 1252(f)(1) were jurisdictional, it would still be subject to 

forfeiture because it is best understood as a limitation on the federal 

government’s waiver of sovereign immunity. That immunity sounds in 

personal jurisdiction and is thus subject to forfeiture. 

The claims and remedies contemplated in section 1252(f)(1) run against the 

federal government alone, and thus they require a waiver of sovereign 

immunity—as relevant here, the waiver under by the APA. 5 U.S.C. § 702; 

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 

209, 215 (2012). Absent some other statutory limitation, section 702 of the APA 

waives sovereign immunity in the federal courts “for relief other than money 

damages.” 5 U.S.C. § 702. Section 1252(f)(1), which applies “[r]egardless of the 

nature of the action,” limits the waiver the APA provides.

Sovereign immunity sounds in personal jurisdiction. Franchise Tax Bd. v. 

Hyatt, 139 S. Ct. 1485, 1493-94 (2019); see also PennEast Pipeline Co., LLC v. 

New Jersey, 141 S. Ct. 2244, 2264 (2021) (Gorsuch, J., dissenting) (“Structural 

immunity sounds in personal jurisdiction, so the sovereign can waive that 

immunity.”). Accordingly, sovereign-immunity defenses can be waived,

Coleman v. Court of Appeals of Md., 566 U.S. 30, 43 (2012), just as analogous 

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personal-jurisdiction defenses can, Ins. Corp. of Ireland v. Compagnie des 

Bauxites de Guinee, 456 U.S. 694, 703 (1982). 

Conclusion 

Section 1252(f)(1) does not limit the Court’s jurisdiction. If that section 

applies at all, it acts merely as a limitation on the types of relief that are 

available. And, at any rate, the protections offered by that section are subject 

to forfeit. Section 1252(f)(1) furnishes no basis for dismissing the case, the 

merits of which the Court should decide both preliminarily and on final 

judgment. Texas respectfully requests that it do so. 

Dated May 20, 2022. Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General 

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700

AARON F. REITZ

Lead Counsel

Deputy Attorney General for Legal Strategy

Texas Bar No. 24105704

aaron.reitz@oag.texas.gov

/s/ Leif A. Olson 

LEIF A. OLSON

Special Counsel

Texas Bar No. 24032801

leif.olson@oag.texas.gov

GENE P. HAMILTON

America First Legal Foundation

300 Independence Avenue SE

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

Counsel for the State of Texas

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Certificate of Service

I certify that on May 20, 2022, I filed this document through the Court’s 

EM/ECF system, which serves it upon all counsel of record.

/s/ Leif A. Olson 

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