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U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:20-cv-01494-HSG

Sierra Club et al v. Trump et al Assigned to: Judge Haywood S Gilliam, Jr Relate Case Case: 4:19-cv-00892-HSG Cause: 28:1331 Fed. Question

Date Filed: 02/28/2020 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff Sierra Club

represented by Cecillia Derphine Wang American Civil Liberties Union Foundation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0775 Fax: 415-395-0950 Email: cwang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dror Ladin American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2500 Email: dladin@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David A Donatti ACLU of Texas P.O. Box 8306 Houston, TX 77288

713-325-7011 Email: ddonatti@aclutx.org PRO HAC VICE ATTORNEY TO BE NOTICED
Gloria Diantha Smith Sierra Club 85 Second Street Suite 2 San Francisco, CA 94105 415-977-5532 Email: gloria.smith@sierraclub.org ATTORNEY TO BE NOTICED
Mollie M Lee Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 415-510-4439 Email: mollie.lee@doj.ca.gov TERMINATED: 06/05/2020
Noor Zafar American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2500 Email: nzafar@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sanjay Narayan Sierra Club 2101 Webster St Suite 1300 Oakland, CA 94612 415-977-5769 Email: sanjay.narayan@sierraclub.org ATTORNEY TO BE NOTICED
Vasudha Talla ACLU Foundation of Northern

Plaintiff
Southern Border Communities Coalition

California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621-2493 Fax: (415) 255-8437 Email: vtalla@aclunc.org ATTORNEY TO BE NOTICED
represented by Cecillia Derphine Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dror Ladin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David A Donatti (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gloria Diantha Smith (See above for address) ATTORNEY TO BE NOTICED
Mollie M Lee (See above for address) TERMINATED: 06/05/2020
Noor Zafar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sanjay Narayan (See above for address) ATTORNEY TO BE NOTICED
Vasudha Talla (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump President of the United States, in his official capacity
Defendant Mark T. Esper U.S. Secretary of Defense, in his official capacity
Defendant Chad F. Wolf Acting U.S. Secretary of Homeland Security, in his official capacity
Amicus U.S. House of Representatives

represented by Andrew Irwin Warden U.S. Department of Justice, Civil Division 1100 L. Street, NW Washington, DC 20530 202-616-5084 Fax: 202-616-8460 Email: andrew.warden@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew Irwin Warden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas N. Letter U.S. House of Representatives Office of General Counsel 219 Cannon House Office Building Washington, DC 20515 202-225-9700 Email: douglas.letter@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

02/28/2020 1

Docket Text
COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0971-14228708.). Filed bySierra Club, Southern Border

02/28/2020 02/28/2020 02/28/2020 02/28/2020
02/28/2020 02/28/2020

Communities Coalition. (Attachments: # 1 Civil Cover Sheet)(Wang, Cecillia) (Filed on 2/28/2020) (Entered: 02/28/2020)

2 Proposed Summons. (Wang, Cecillia) (Filed on 2/28/2020) (Entered: 02/28/2020)
3 Certificate of Interested Entities by Sierra Club, Southern Border Communities Coalition (Wang, Cecillia) (Filed on 2/28/2020) (Entered: 02/28/2020)

Electronic Filing Error. Incorrect CCS (Rev. 06/17). The Civil Cover Sheet's latest Rev. is (Rev 07/19). Please E-file an amended CCS ONLY. Event is from > Other Filings > Other Documents > Civil Cover Sheet.

Re: 1 The Complaint's Civil Cover Sheet filed by Sierra Club, Southern Border Communities Coalition (cfeS, COURT STAFF) (Filed on 2/28/2020) (Entered: 02/28/2020)

4 Case assigned to Magistrate Judge Laurel Beeler.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 51(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 3/13/2020. (cfeS, COURT STAFF) (Filed on 2/28/2020) (Entered: 02/28/2020)

5 Civil Cover Sheet by Sierra Club, Southern Border Communities Coalition . (Wang, Cecillia) (Filed on 2/28/2020) (Entered: 02/28/2020)

Initial Case Management Scheduling Order with ADR

6

Deadlines: Case Management Statement due by 5/21/2020.

Initial Case Management Conference set for 5/28/2020 11:00

AM. (mclS, COURT STAFF) (Filed on 2/28/2020) (Entered:

02/28/2020)

02/28/2020 03/02/2020 03/03/2020 03/05/2020
03/05/2020 03/05/2020 03/05/2020 03/05/2020

7 Summons Issued as to Mark T. Esper, Donald J. Trump, Chad F. Wolf. (mclS, COURT STAFF) (Filed on 2/28/2020) (Entered: 02/28/2020)
8 ORDER RELATING CASE TO Docket No. 19-cv-00892-HSG. Signed by Judge Haywood S. Gilliam, Jr. on 3/2/2020. (ndrS, COURT STAFF) (Filed on 3/2/2020) (Entered: 03/02/2020)
9 ORDER REASSIGNING CASE. Case reassigned to Judge Haywood S Gilliam, Jr for all further proceedings. Magistrate Judge Laurel Beeler no longer assigned to case. Signed by the Clerk on 03/03/2020. (ajsS, COURT STAFF) (Filed on 3/3/2020) (Entered: 03/03/2020)
10 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE FOR REASSIGNED CIVIL CASE. Notice is hereby given that a Case Management Conference has been set for May 26, 2020, before Judge Haywood S. Gilliam, Jr., at 2:00 p.m., in Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA. Case Management Statement due by May 19, 2020. Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. All future filings should reflect the case number as 4:20-cv-01494-HSG. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Filed on 3/5/2020) (Entered: 03/05/2020)
11 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14249678.) filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate of Good Standing)(Ladin, Dror) (Filed on 3/5/2020) (Entered: 03/05/2020)
12 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14249769.) filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate of Good Standing)(Zafar, Noor) (Filed on 3/5/2020) (Entered: 03/05/2020)
13 NOTICE of Appearance by Andrew Irwin Warden (Warden, Andrew) (Filed on 3/5/2020) (Entered: 03/05/2020)
14 STIPULATION WITH PROPOSED ORDER to Establish Briefing Schedule and Procedures to Litigate Fiscal Year 2020 Border Barrier Projects filed by Mark T. Esper, Donald J. Trump, Chad F. Wolf, Southern Border Communities Coalition, and Sierra Club (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on

3/5/2020) Modified on 3/6/2020 (jjbS, COURT STAFF). Modified on 3/6/2020 (jjbS, COURT STAFF). (Entered: 03/05/2020)

03/06/2020 15

ORDER by Judge Haywood S. Gilliam, Jr. Granting (Docket Nos. 14 in case 4:20-cv-01494-HSG and 15 in case 4:20-cv01563-HSG) Stipulation to Establish Briefing Schedule and Procedures to Litigate Fiscal Year 2020 Border Barrier Projects.(ndrS, COURT STAFF) (Filed on 3/6/2020) (Entered: 03/06/2020)

03/06/2020

Reset Deadlines, See Docket Nos. 15 in case 4:20-cv-01494-HSG and 21 in case 4:20-cv-01563-HSG: Motions due by 3/30/2020; Opposition and Cross Motions due by 4/17/2020; Replies and Responses due by 4/24/2020 and Replies due by 4/29/2020. (ndrS, COURT STAFF) (Filed on 3/6/2020) (Entered: 03/06/2020)

03/06/2020

Electronic filing error. REMINDER TO COUNSEL: Counsel is instructed that all future filings shall bear the initials HSG immediately after the case number. Re: 11 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14249678.) filed by Sierra Club, Southern Border Communities Coalition, 12 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14249769.) filed by Sierra Club, Southern Border Communities Coalition (jjbS, COURT STAFF) (Filed on 3/6/2020) (Entered: 03/06/2020)

03/06/2020 16

ORDER by Judge Haywood S. Gilliam, Jr. Granting 11 Motion for Pro Hac Vice as to Dror Ladin. (ndrS, COURT STAFF) (Filed on 3/6/2020) (Entered: 03/06/2020)

03/06/2020 17

ORDER by Judge Haywood S. Gilliam, Jr. Granting 12 Motion for Pro Hac Vice as to Zafar, Noor. (ndrS, COURT STAFF) (Filed on 3/6/2020) (Entered: 03/06/2020)

03/06/2020

18 ***SEE DOCKET ENTRY 19 FOR CORRECTED DOCUMENT*** NOTICE of Filing of Administrative Record for Fiscal Year 2020 Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 284 by Mark T. Esper, Donald J. Trump, Chad F. Wolf. (Attachments: # 1 Exhibit Administrative Record for FY20 Section 284 Projects, # 2 Exhibit Certification of Administrative Record)(Warden, Andrew) (Filed on 3/6/2020) Modified on 3/9/2020 (cjlS, COURT STAFF). Modified on 3/10/2020 (cjlS, COURT STAFF). (Entered: 03/06/2020)

03/09/2020

Electronic filing error. Incorrect Case numbers on the Notice. [err201] This filing will not be processed by the clerks office.

Please re-file in its entirety Re: 18 Notice of Filing of Administrative Record for Fiscal Year 2020 Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 284 filed by Chad F. Wolf, Mark T. Esper, Donald J. Trump. (cjlS, COURT STAFF) (Filed on 3/9/2020) (Entered: 03/09/2020)

03/09/2020

19 NOTICE of Filing of Administrative Record for Fiscal Year 2020 Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 284 (corrected case numbers) by Mark T. Esper, Donald J. Trump, Chad F. Wolf. (Attachments: # 1 Exhibit Administrative Record for FY20 Section 284 Projects, # 2 Exhibit Certification of Administrative Record)(Warden, Andrew) (Filed on 3/9/2020) Modified on 3/10/2020 (cjlS, COURT STAFF). (Entered: 03/09/2020)

03/19/2020

20 CERTIFICATE OF SERVICE by Sierra Club, Southern Border Communities Coalition (Ladin, Dror) (Filed on 3/19/2020) (Entered: 03/19/2020)

03/20/2020

Electronic filing error. REMINDER: No title Page. Certificate of Service e-filed separately and not as an attachment, require a title page. Please refer to Civil Local Rules 3-4 r e first page requirement. [err201] No further action is necessary Re: 20 Certificate of Service filed by Sierra Club, Southern Border Communities Coalition. (cjlS, COURT STAFF) (Filed on 3/20/2020) (Entered: 03/20/2020)

03/27/2020

21 STIPULATION WITH [PROPOSED] ORDER Requesting Order Changing Time filed by Sierra Club, Southern Border Communities Coalition, Mark T. Esper, Donald J. Trump, Chad F. Wolf. (Attachments: # 1 Declaration of Dror Ladin, # 2 Proposed Order)(Ladin, Dror) (Filed on 3/27/2020) Modified on 3/30/2020 (cjlS, COURT STAFF). (Entered: 03/27/2020)

03/30/2020 22

ORDER by Judge Haywood S. Gilliam, Jr. Granting 21 Stipulation Requesting Order Changing Time. Motions due by 4/13/2020; Responses/Cross Motions due by 5/1/2020; Replies/Responses due by 5/8/2020 and Replies due by 5/13/2020. (ndrS, COURT STAFF) (Filed on 3/30/2020) (Entered: 03/30/2020)

04/13/2020 23

MOTION for Partial Summary Judgment Regarding Section 284 Projects filed by Sierra Club, Southern Border Communities Coalition. Motion Hearing set for 5/28/2020 02:00 PM before Judge Haywood S Gilliam Jr.. Responses due by 5/1/2020. Replies due by

5/8/2020. (Attachments: # 1 Appendix of Declarations, # 2

Request for Judicial Notice, # 3 Proposed Order)(Ladin, Dror) (Filed on 4/13/2020) (Entered: 04/13/2020)

04/16/2020

24 NOTICE of Appearance by Douglas N. Letter (Letter, Douglas) (Filed on 4/16/2020) (Entered: 04/16/2020)

04/16/2020

25 Consent MOTION for leave to File Amicus Curiae Brief filed by U.S. House of Representatives. Responses due by 4/30/2020.

Replies due by 5/7/2020. (Attachments: # 1 Exhibit (Amicus Brief), # 2 Proposed Order)(Letter, Douglas) (Filed on 4/16/2020) Modified on 4/17/2020 (cjlS, COURT STAFF). (Entered: 04/16/2020)

04/17/2020 26

ORDER (as modified) by Judge Haywood S. Gilliam, Jr. Granting (docket nos. 25 in case 4:20-cv-01494-HSG and 60 in case 4:20-cv-01563-HSG) Consent MOTION to File Amicus Curiae Brief. Counsel is directed to file the Houses amicus brief on the docket in this matter.(ndrS, COURT STAFF) (Filed on 4/17/2020) (Entered: 04/17/2020)

04/21/2020

27 NOTICE of Errata re 23 MOTION for Partial Summary Judgment Regarding Section 284 Projects by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 [Corrected] Appendix of Declarations in Support Of Plaintiffs Motion For Partial Summary Judgment)(Ladin, Dror) (Filed on 4/21/2020) Modified on 4/22/2020 (cjlS, COURT STAFF). (Entered: 04/21/2020)

04/22/2020

28 CLERK'S NOTICE. Notice is hereby given that the hearing on

the 23 motion for partial summary judgment,previously set for

May 28th is vacated. See Docket No. 15 . (This is a text-only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Filed on 4/22/2020) (Entered: 04/22/2020)

04/27/2020

29 MOTION for leave to appear in Pro Hac Vice Re: David Donatti (Filing fee $310, receipt number 0971-14412163) filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Certificate/Proof of Service Certificate of Good Standing)(Donatti, David) (Filed on 4/27/2020) Modified on 4/28/2020 (cjlS, COURT STAFF). (Entered: 04/27/2020)

05/01/2020 30

MOTION for Partial Summary Judgment Regarding Fiscal Year 2020 Border Barrier Projects Pursuant to 10 U.S.C. 284 and Opposition to Plaintiffs' Motion for Partial Summary Judgment (ECF No. 23) filed by Mark T. Esper, Donald J. Trump, Chad F. Wolf. Responses due by 5/8/2020. Replies due by 5/13/2020. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Declaration, # 5 Proposed Order)(Warden, Andrew) (Filed on 5/1/2020) (Entered: 05/01/2020)

05/07/2020 31

ORDER by Judge Haywood S. Gilliam, Jr. Granting 29 Motion for Pro Hac Vice as to Donatti, David. (ndrS, COURT STAFF) (Filed on 5/7/2020) (Entered: 05/07/2020)

05/08/2020

32 REPLY (re 30 MOTION for Partial Summary Judgment Regarding Fiscal Year 2020 Border Barrier Projects Pursuant to 10

U.S.C. 284 and Opposition to 23 Plaintiffs' Motion for Partial Summary Judgment Regarding Section 284 Projects) filed by Sierra Club, Southern Border Communities Coalition. (Attachments: # 1 Appendix of Declarations in Support Of Plaintiffs Reply)(Ladin, Dror) (Filed on 5/8/2020) Modified on 5/11/2020 (cjlS, COURT STAFF). (Entered: 05/08/2020)

05/13/2020

33 REPLY (re 30 MOTION for Partial Summary Judgment) filed by Mark T. Esper, Donald J. Trump, Chad F. Wolf. (Attachments: # 1 Declaration Second Enriquez Decl.)(Warden, Andrew) (Filed on 5/13/2020) Modified on 5/14/2020 (jlmS, COURT STAFF). (Entered: 05/13/2020)

05/18/2020

34 CLERK'S NOTICE. Notice is hereby given that the case management conference, previously set for May 26th, will be held on that date as a telephonic case management conference before Judge Haywood S. Gilliam, Jr. at 2:00 p.m. All counsel shall use the following dial-in information to access the call:Dial-In: 888-8086929/Passcode: 6064255. For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where at all possible, parties shall use landlines. The parties are further advised to ensure that the Court can hear and understand them clearly before speaking at length. (This is a text-only entry generated by the court. There is no document associated with this entry.) (ndrS, COURT STAFF) (Filed on 5/18/2020) (Entered: 05/18/2020)

05/19/2020 35

STIPULATION WITH [PROPOSED] ORDER To Vacate Case Management Conference Scheduled for May 26, 2020 filed by Mark T. Esper, Donald J. Trump, Chad F. Wolf, Sierra Club,

Southern Border Communities Coalition. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 5/19/2020) Modified on 5/20/2020 (cjlS, COURT STAFF). (Entered: 05/19/2020)

05/20/2020 36

ORDER by Judge Haywood S. Gilliam, Jr. Granting (Docket Nos. 35 in case 4:20-cv-01494-HSG and 68 in case 4:20-cv01563-HSG) Stipulation To Vacate Case Management Conference Scheduled for May 26, 2020. (ndrS, COURT STAFF) (Filed on 5/20/2020) (Entered: 05/20/2020)

05/20/2020

37 NOTICE of Modification to Fiscal Year 2020 Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 284 by Mark T. Esper, Donald J. Trump, Chad F. Wolf. (Attachments: # 1 Declaration)(Warden, Andrew) (Filed on 5/20/2020) Modified on 5/21/2020 (cjlS, COURT STAFF). (Entered: 05/20/2020)

05/29/2020

38 NOTICE of Updated Information Regarding Obligation of Funds for Fiscal Year 2020 Border Barrier Projects Undertaken Pursuant to 10 U.S.C. § 284 by Mark T. Esper, Donald J. Trump, Chad F. Wolf. (Attachments: # 1 Declaration)(Warden, Andrew) (Filed on 5/29/2020) Modified on 6/1/2020 (cjlS, COURT STAFF). (Entered: 05/29/2020)

06/05/2020

39 ***DISREGARD ENTRY, DOCUMENT FILED IN THE WRONG CASE*** NOTICE of Substitution of Counsel by Vasudha Talla (Talla, Vasudha) (Filed on 6/5/2020) Modified on 6/8/2020 (cjlS, COURT STAFF). (Entered: 06/05/2020)

06/05/2020

40 NOTICE of Substitution of Counsel by Vasudha Talla (Talla, Vasudha) (Filed on 6/5/2020) (Entered: 06/05/2020)

01/21/2021

41 ORDER by Hon. Haywood S. Gilliam, Jr. DIRECTING the parties to file a joint status report regarding what effect President Biden's January 20, 2021 Executive Order terminating the national emergency declared by Proclamation 9844 and pausing work on the construction projects on the southern border wall has on these cases and the pending motions for summary judgment. The parties shall file their joint status report by February 16, 2021. (This is a text-only entry generated by the court. There is no document associated with this entry.) (hsglc1S, COURT STAFF) (Filed on 1/21/2021) (Entered: 01/21/2021)

01/22/2021 02/16/2021 02/17/2021

Set Deadline: See Docket No. 41 Status Report due by 2/16/2021. (amgS, COURT STAFF) (Filed on 1/22/2021) (Entered: 01/22/2021)
42 STATUS REPORT by Mark T. Esper, Donald J. Trump, Chad F. Wolf. (Attachments: # 1 Exhibit)(Warden, Andrew) (Filed on 2/16/2021) (Entered: 02/16/2021)
43 ORDER by Hon. Haywood S. Gilliam, Jr. DIRECTING the parties to file a further joint status report regarding what effect President Biden's January 20, 2021 Executive Order terminating the national emergency declared by Proclamation 9844 and pausing work on the construction projects on the southern border wall has on these cases and the pending motions for summary judgment. The parties shall file their joint status report by April 15, 2021. (This is a text-only entry generated by the court. There is no document associated with this entry.) (hsglc1S, COURT STAFF) (Filed on 2/17/2021) (Entered: 02/17/2021)

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 Case 4:20-cv-01494-HSG Document 1 Filed 02/28/20 Page 1 of 31

1 CECILLIA D. WANG (SBN 187782)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
2 39 Drumm Street
San Francisco, CA 94111
3 Tel.: (415) 343-0770
Fax: (415) 395-0950
4 cwang@aclu.org

5 SANJAY NARAYAN (SBN 183227)**
GLORIA D. SMITH (SBN 200824)**
6 SIERRA CLUB ENVIRONMENTAL LAW PROGRAM
2101 Webster Street, Suite 1300
7 Oakland, CA 94612
Tel.: (415) 977-5772
8 sanjay.narayan@sierraclub.org
gloria.smith@sierraclub.org
9 **Counsel for Plaintiff SIERRA CLUB

10 Attorneys for Plaintiffs (Additional counsel listed on following page)

11

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO-OAKLAND DIVISION

13 SIERRA CLUB and SOUTHERN BORDER
COMMUNITIES COALITION,
14
Plaintiffs,
15
v.
16
DONALD J. TRUMP, President of the United
17 States, in his official capacity; MARK T. ESPER,
U.S. Secretary of Defense, in his official capacity;
18 and CHAD F. WOLF, Acting U.S. Secretary of
Homeland Security, in his official capacity,
19
Defendants.
20

Case No.:
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

22

23

24

25

26

27

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:20-cv-01494-HSG Document 1 Filed 02/28/20 Page 2 of 31

1 Additional counsel for Plaintiffs:

2 DROR LADIN*
NOOR ZAFAR*

3 JONATHAN HAFETZ*
HINA SHAMSI*

4 OMAR C. JADWAT*
AMERICAN CIVIL LIBERTIES UNION FOUNDATION

5 125 Broad Street, 18th Floor
New York, NY 10004

6 Tel.: (212) 549-2660
Fax: (212) 549-2564

7 dladin@aclu.org
nzafar@aclu.org

8 jhafetz@aclu.org
hshamsi@aclu.org

9 ojadwat@aclu.org
* Application for admission pro hac vice forthcoming

10
MOLLIE M. LEE (SBN 251404)

11 AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN CALIFORNIA, INC.
12 39 Drumm Street

13

San Francisco, CA 94111 Tel.: (415) 621-2493

14

Fax: (415) 255-8437 mlee@aclunc.org

15 DAVID DONATTI*

16

ANDRE I. SEGURA (SBN 247681) AMERICAN CIVIL LIBERTIES UNION FOUNDATION

17

OF TEXAS P.O. Box 8306

18

Houston, TX 77288 Tel.: (713) 325-7011

19

Fax: (713) 942-8966 ddonatti@aclutx.org

20 asegura@aclutx.org

21 * Application for admission pro hac vice forthcoming

22

23

24

25

26

27

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:20-cv-01494-HSG Document 1 Filed 02/28/20 Page 3 of 31

1

INTRODUCTION

2

1. Multiple courts have ruled that President Donald Trump has no authority to spend

3 billions of dollars, appropriated by Congress for the military, to carry out his campaign promise to

4 build a wall along the U.S.-Mexico border. Rather than abide by these decisions, President Trump

5 is now diverting even more congressionally-appropriated military funds to border wall construction.

6

2. Although President Trump has demanded that Congress appropriate billions of

7 dollars to fund his wall project, Congress has consistently rejected his demands. For each of the last

8 two fiscal years, Congress has decided that only $1.375 billion should be spent on any border

9 barrier construction. Most recently, on December 20, 2019, President Trump signed into law

10 Congress’s Consolidated Appropriations Act, 2020, enacting Congress’s decision that only $1.375

11 billion should be spent on the border wall in fiscal year 2020.

12

3. Beginning in February 2019, the executive branch has unlawfully sought to divert

13 billions of dollars appropriated for the military to aggrandize the border wall project. On February

14 15, 2019, President Trump signed the Consolidated Appropriations Act, 2019, but simultaneously

15 declared a national emergency in an effort to spend billions beyond what Congress allocated. That

16 same day, the White House announced that the executive branch would spend $3.6 billion in

17 military construction funds and $2.5 billion in other military funds on the border wall. This court

18 found both of those diversions unlawful.

19

4. Defendants have continued with this course of conduct in fiscal year 2020. In spite

20 of Congress’s decision to fund only $1.375 billion for wall construction for this fiscal year, on

21 February 13, 2020, Secretary of Defense Mark T. Esper announced that the Department of Defense

22 (DoD) would fund $3.831 billion in border wall construction using fiscal year 2020 funds.

23

5. On the same day Secretary Esper announced that DoD would divert $3.831 billion to

24 border wall construction, President Trump announced that he was extending the national emergency

25 he had declared in 2019 in a further effort to try and circumvent Congress’s funding decisions.

26

6. Neither a declaration of emergency nor the military funding statutes the

27 administration has invoked permit the executive branch to disregard Congress’s enacted

28

1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:20-cv-01494-HSG Document 1 Filed 02/28/20 Page 4 of 31

1 appropriations legislation. The executive branch has no authority to spend money without

2 congressional approval, and its continuing efforts to do so are unlawful and violate the Constitution.

3

7. Plaintiffs Sierra Club and Southern Border Communities Coalition are harmed by

4 the President’s unlawful declaration of a national emergency and bring this action seeking

5 declaratory and injunctive relief and other remedies as set forth below.

6
JURISDICTION AND VENUE
7
8. This case arises under the Consolidated Appropriations Act of 2020, Pub. Law No.
8
116-93; Article I, section 9, clause 7 of the U.S. Constitution; Article I, section 7 of the U.S.
9
Constitution; the National Environmental Policy Act, 42 U.S.C. § 4332; the Administrative
10
Procedures Act, 5 U.S.C. §§ 701–706, and other acts of Congress. This Court has subject matter
11
jurisdiction under 28 U.S.C. §§ 1331 (federal question), 1361 (mandamus), 1651 (All Writs Act)
12
and 2201 (declaratory relief).
13
9. Venue is proper under 28 U.S.C. § 1391(e)(1) because the defendants are agencies of
14
the United States and officers of the United States acting in their official capacity and (1) at least
15
one plaintiff resides in this district; and/or (2) a substantial part of the events or omissions giving
16
rise to the claims occurred in this district.
17

18

PARTIES

19

10. Plaintiff Sierra Club is incorporated in the State of California as a nonprofit public

20 benefit corporation with headquarters in Oakland, California. Sierra Club is a national organization

21 with 67 chapters and more than 825,000 members dedicated to exploring, enjoying, and protecting

22 the wild places of the earth; to educating and enlisting humanity to protect and restore the quality of

23 the natural and human environment; and to using all lawful means to carry out these objectives.

24 Many of Sierra Club’s members reside, work, engage in recreational activities, and/or enjoy areas

25 along the border of the United States and Mexico. Sierra Club has more than 400,000 members in

26 California, over 9,700 of whom belong to its San Diego Chapter. Sierra Club’s Grand Canyon

27 Chapter, which covers the State of Arizona, has more than 16,000 members. Sierra Club’s Rio

28 Grande Chapter includes over 10,000 members in New Mexico and West Texas. Sierra Club’s Lone

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1 Star Chapter, which covers the State of Texas, has more than 26,100 members, more than 440 of

2 whom live in the Lower Rio Grande Valley.

3

11. Sierra Club’s nationwide advocacy includes educating and mobilizing the public on

4 issues of habitat destruction, divided local communities, land use, and myriad other human and

5 environmental impacts associated with border wall construction activities. Sierra Club is committed

6 to the protection of threatened and endangered species that inhabit the areas surrounding the

7 proposed border walls as well as their habitat. Sierra Club has been actively involved in protecting

8 habitat along the southern border for many years, including work to promote conservation on state,

9 federal, and private lands along and adjacent to the border, and its members regularly use and enjoy

10 areas along the border. Sierra Club members live near and regularly visit the California-Mexico

11 border around San Diego for hiking, birdwatching, photography, and other recreational and

12 aesthetic uses, and have worked to promote conservation of wildlife and habitat along the border.

13

12. Sierra Club brings this action on its own behalf and on behalf of its members. Sierra

14 Club members live near and frequently visit the parks, refuges, and other public lands along the

15 United States-Mexico border for hiking, birdwatching, photography and other professional,

16 scientific, recreational, and aesthetic uses. Sierra Club members also reside, work, and engage in

17 recreational activities in and around cities and towns affected by the border wall.

18

13. Sierra Club’s members obtain recreational, professional, scientific, educational, and

19 aesthetic benefits from their activities in these areas, and from wildlife dependent upon habitat that

20 includes these areas. Sierra Club and its members have been and will continue to be injured by the

21 construction of a border wall and related infrastructure. Such injuries are particularly significant

22 because the U.S. Department of Homeland Security is proceeding with border work without first

23 complying with decades-old environmental and public safety laws and regulations that were

24 enacted for the very purpose of protecting the places, species, and values Sierra Club members

25 work to protect. The requested relief will redress these injuries.

26

14. Sierra Club has devoted and continues to devote substantial resources to advocacy

27 opposing the Department of Homeland Security’s border wall construction, intended to avoid the

28 injuries to Sierra Club’s interests described above. Those efforts include formation of Sierra Club

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1 Borderlands, a coalition intended to investigate the environmental and social impacts of the border

2 wall, and educate the public regarding those impacts. Sierra Club also devoted substantial staff and

3 other resources towards legislative advocacy leading up to the appropriations bill passed by

4 Congress in February 2019, specifically directed towards securing Congress’s denial of substantial

5 funding to the border wall. Because of President Trump’s emergency declaration, Sierra Club has

6 been forced to redirect resources to continue and amplify its advocacy—despite Congress’s

7 decision to limit funding for near-term construction. For example, Sierra Club has allocated staff

8 and volunteers within its national headquarters in Oakland to support veterans who intend to travel

9 to Texas to oppose continued wall construction.

10

15. Plaintiff Southern Border Communities Coalition (“SBCC”) is a program of Alliance

11 San Diego, a nonprofit public benefit corporation with headquarters in San Diego, California.

12 SBCC brings together 60 organizations from California, Arizona, New Mexico, and Texas to

13 promote policies and solutions that improve quality of life in border communities, including fair

14 border enforcement policies that respect human dignity and human rights and prevent loss of life, as

15 well as rational and humane immigration-reform policies affecting the border region. Additionally,

16 SBCC engages in oversight of U.S. Customs and Border Protection and its components, including

17 Border Patrol, and advocates for accountability and transparency in the government policies and

18 practices that impact border communities.

19

16. SBCC brings this action on behalf of its members and on its own behalf. SBCC’s

20 members live in and around the border lands impacted by the President’s declaration of a national

21 emergency, in California, Arizona, New Mexico, and Texas. They engage in recreational activities

22 in and derive other benefits from public lands, including areas for which border barrier funding has

23 not been appropriated or for which the deployment of funds has been prohibited. The ongoing and

24 imminent construction of border infrastructure, including the border wall and fencing, will restrict

25 members’ access to these and other lands, degrading their quality of life. It has additional negative

26 consequences: dividing and fragmenting the communities in which SBCC members live; dividing

27 the binational character of these communities by increasing members’ fears about traveling back-

28 and-forth across the border; heightening racial division and promoting hostility towards immigrants

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1 and communities of color in border communities; and decreasing eco- and other forms of tourism

2 that generate significant revenue.

3

17. President Trump’s declaration also exposes SBCC’s membership to heightened risk

4 from flooding, as well as risks to clean water, clean air and other natural resources. These threats

5 are magnified by the government’s refusal to comply with constitutional and statutory limits on

6 construction. The border wall directly harms members economically, culturally, recreationally,

7 aesthetically, and religiously. The requested relief would redress these injuries.

8

18. Further, the declaration of a national emergency and the improper diversion of funds

9 has already and will continue to impair SBCC’s mission and divert SBCC’s resources. SBCC has

10 mobilized its staff and its affiliates to monitor and respond to the diversion of funds and the

11 construction caused by and accompanying the national emergency declaration. It has organized,

12 supported, or participated in grassroots advocacy to respond to ongoing and imminent construction

13 throughout the border lands, including in San Diego, Tucson, Las Cruces, El Paso, and the Rio

14 Grande Valley, and will continue to do so in response to new construction caused by the President’s

15 declaration. SBCC has responded locally and nationally to the President’s declaration to highlight

16 the impacts it will have on border communities. It has engaged in rapid-response political outreach

17 and advocacy, including traveling to Washington, D.C., to educate legislators about the perils to

18 border communities of the construction caused by and accompanying the national emergency

19 declaration. It has responded to several calls from local officials, communities of faith, members of

20 Congress and congressional staff, and the public about the President’s national emergency

21 declaration and the impacts it will have on the border lands and on border communities. In doing

22 so, it has provided information, guidance, and support to organizations and individuals that depend

23 on SBCC, and has led tours for groups requesting to see for themselves the “national emergency”

24 that has been proclaimed. Since the President’s declaration of emergency, these activities have

25 consumed the majority of SBCC staff’s time, thereby interfering with SBCC’s core advocacy

26 regarding border militarization, Border Patrol law-enforcement activities, and immigration reform.

27 SBCC must take these actions in furtherance of its mission to protect and improve the quality of life

28 in border communities.

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1

19. Defendant DONALD J. TRUMP is the President of the United States, and is sued in

2 his official capacity.

3

20. Defendant MARK T. ESPER, Secretary of Defense, is sued in his official capacity.

4 Secretary Esper is responsible for ensuring that Department of Defense actions comply with

5 applicable laws. Secretary Esper is responsible for carrying out the diversion of military

6 construction funds for the construction of the border wall under President Trump’s declaration of

7 national emergency.

8

21. Defendant CHAD F. WOLF, Acting Secretary of Homeland Security, is sued in her

9 official capacity. Acting Secretary Wolf is responsible for ensuring that Department of Homeland

10 Security actions comply with applicable laws. Acting Secretary Wolf is responsible for carrying out

11 the construction of the border wall and otherwise implementing President Trump’s declaration of

12 national emergency.

13

FACTUAL ALLEGATIONS

14 Congress has considered and rejected the President’s requests for billions of dollars in wall

15 funding.

16

22. For several years, Congress has considered President Trump’s demands for many

17 billions of dollars to construct a border wall, and refused to provide the funds he demanded.

18

23. Congress’s refusal to provide billions of dollars in border wall funding resulted, at

19 the end of 2018, in the longest government shutdown in U.S. history.

20

24. On January 6, 2019, the Acting Director of the Office of Management and Budget

21 communicated to the congressional Committees on Appropriation that “[t]he President requests

22 $5.7 billion for construction of a steel barrier for the Southwest border,” which would “fund

23 construction of a total of approximately 234 miles of new physical barrier and fully fund the top 10

24 priorities in CBP’s Border Security Improvement Plan.” The letter stated that “a physical barrier—

25 wall—creates an enduring capability that helps field personnel stop, slow down, and/or contain

26 illegal entries.”

27

25. On February 14, 2019, Congress passed the Consolidated Appropriations Act of

28 2019. Congress’s appropriations judgment, as expressed in the law that passed both chambers, is

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1 that only $1.375 billion should be used to construct a border wall in fiscal year 2019. The House

2 Appropriations Committee Chair, Representative Nita Lowey, confirmed that congressional

3 negotiators considered, and “frankly, . . . denie[d] the President billions of dollars in funding for the

4 concrete wall that he demanded.” Senator Patrick Leahy, Vice Chairman of the Senate

5 Appropriations Committee, who was actively involved in negotiations on the 2019 Consolidated

6 Appropriations Act, stated “[t]he agreement does not fund President Trump’s wasteful wall.” 165

7 Cong. Rec. S1362 (daily ed. Feb 14, 2019).The President continued to be in conflict with Congress

8 over border wall construction funding in negotiations over the fiscal year 2020 budget. On March

9 11, 2019, the White House Office of Management and Budget released the President’s Fiscal Year

10 2020 Budget Request. The President stated that “finishing the border wall is an urgent national

11 priority,” and that “[m]y Budget continues to reflect these priorities.” Accordingly, the fiscal year

12 2020 “Budget requests $5 billion to construct approximately 200 miles of border wall along the

13 U.S. Southwest border.”

14

26. On March 12, 2019, the Department of Defense released its fiscal year 2020 budget

15 proposal, which requested “$9.2 billion of emergency funding for unspecified military

16 construction.” Of that figure, $3.6 billion would be allocated “to build border barriers,” and an

17 additional $3.6 billion would be used to “backfill funding reallocated in FY 2019 to build border

18 barriers.”

19

27. In spite of President Trump’s multibillion-dollar wall budget requests, Congress

20 again decided that only $1.375 billion should be spent on wall construction, allocating an identical

21 amount for construction in fiscal year 2020 as it had for fiscal year 2019. Congress also imposed a

22 prohibition on the use of any appropriated funds to “increase . . . funding for a program, project, or

23 activity as proposed in the President’s budget request for a fiscal year until such proposed change is

24 subsequently enacted in an appropriation Act . . . .” Pub. Law No. 116-93, Division C § 739.

25

28. In considering the President’s budget request for fiscal year 2020, Congress further

26 denied the Department of Defense’s requests to provide new wall money and to backfill the $3.6

27 billion that the administration previously diverted from military construction projects during fiscal

28 year 2019. Senator Patrick Leahy, Vice Chairman of the Senate Appropriations Committee, who

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1 was actively involved in negotiations on the 2020 Consolidated Appropriations Act, explained that

2 “[a]s of November 22, the Department of Defense had only expended $2 million of the $3.6 billion

3 the President stole, so he has the ability to return a significant portion of the funds appropriated

4 back to the projects they originally supported.”

5

29. President Trump signed the 2020 Consolidated Appropriations Act into law on

6 December 20, 2019.

7 Defendants have acted to circumvent Congress’s exclusive control over appropriations.

8

30. In January 2020, multiple newspapers reported that the executive branch intended to

9 divert an additional $7.2 billion from the military to wall construction. See, e.g., Maggie Haberman

10 and Zolan Kanno-Youngs, N.Y. Times, Trump Plans to Divert Additional $7.2 Billion From

11 Military to Wall (Jan. 14, 2020).

12

31. On February 13, 2020, Secretary Esper announced that DoD would fund $3.831

13 billion in border wall construction using fiscal year 2020 funds. That same day, President Trump

14 extended the previously-declared national emergency, which was set to expire on February 15,

15 2020. 85 Fed. Reg. 8715.

16

32. The executive branch’s efforts to divert military funds to the wall repeat the same

17 actions it undertook in 2019. On February 15, 2019, President Trump declared a national

18 emergency in order to secure funding for his border wall. The President’s declaration came after a

19 weeks-long stalemate between the President and Congress, during which the President repeatedly

20 threatened to declare a national emergency if Congress did not fund the construction of the border

21 wall to the extent and at the pace the President preferred. In announcing his declaration of national

22 emergency last year, President Trump expressly disagreed with Congress’s appropriation decision

23 and called for billions more for border wall construction.

24

33. Although he signed the appropriations legislation that Congress passed, President

25 Trump stated that he was “not happy” with Congress’s compromise deal and would find “other

26 methods” to finance a wall without explicit approval form Congress. According to the President,

27 $1.375 billion from Congress is “not so much” for a border wall and an emergency declaration

28

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1 would allow him to supplement what Congress has authorized “[s]o we have a chance of getting

2 close to $8 billion [and] . . . build a lot of wall.”

3

34. In announcing his declaration of national emergency, President Trump stated that he

4 decided to declare an emergency because he was dissatisfied with the pace of Congress’s spending.

5 President Trump acknowledged that he “went through Congress . . . made a deal . . . got almost $1.4

6 billion” and was “successful, in that sense.” But, he explained, “I want to do it faster. I could do the

7 wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.”

8

35. While admitting that the appropriations bill provided him with a substantial amount

9 of border wall funding, President Trump declared that he was still “not happy with it” because “on

10 the wall, [Congress] skimped.”

11

36. Over the course of 2019, the executive branch acted to funnel $3.6 billion in military

12 construction funds and $2.5 billion in other military funds to the border wall, in contravention of

13 Congress’s appropriations judgment.

14 Construction of President Trump’s Wall Will Have Devastating Effects on the Environment.

15

37. Border wall construction using military funds diverted by the Defendants is already

16 destroying delicate lands along the border.

17

38. For example, large sections of Organ Pipe Cactus National Monument, a previously

18 protected landscape, have been and continue to be bulldozed and dynamited to make way for wall

19 and road construction. In addition, wall construction is taking a toll on scarce water resources, as

20 millions of gallons of water are slated to be drained from underground aquifers to mix cement for

21 the wall’s foundation.

22

39. In addition to ongoing and imminent construction, the President’s diversion of funds

23 not appropriated by Congress to expand and expedite the border wall has injured SBCC and its

24 member organizations. SBCC and its members have been compelled to respond to the declared

25 emergency to safeguard their and their members’ interests, including by diverting resources from

26 the organizations’ campaigns to unveil ongoing and imminent construction, educate their members,

27 and respond to threats to their organizational missions. Staff and affiliates have participated in

28 grassroots advocacy, engaged in rapid-response political outreach and advocacy with congressional

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1 and local elected officials, and responded to requests from their members, the public, and elected

2 officials about the threat and implementation of unlawful expedited construction. The

3 circumvention of legal processes, lack of transparency, notice, and consultation, have frustrated the

4 organizations’ efforts to work towards their missions on behalf of their members.

5

40. Defendants have not conducted a public review of these activities’ impacts on the

6 environment and local communities that complies with NEPA.

7
LEGAL BACKGROUND
8
The Constitution Vests Congress with Exclusive Authority to Determine the Appropriation of
9 Public Funds.

10

41. The Constitution bans the expenditure of any public funds by any branch of the

11 federal government, including the Executive Branch, absent enactment of a law appropriating such

12 funds: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made

13 by Law . . . .” U.S. Const. art. I, § 9, cl. 7. The Constitution thus vests Congress, and only Congress,

14 with the power to spend public funds, and it must do so by passing identical appropriations bills in

15 both the House and the Senate. Public funds may only be expended as specified in such duly

16 enacted appropriations laws. Except as specifically authorized by Congress, the Executive Branch

17 has no authority to expend public funds that have not been thus appropriated.

18

42. The Appropriations Clause, in Article I, section 9, clause 7 of the Constitution,

19 provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations

20 made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public

21 Money shall be published from time to time.”

22

43. The Appropriations Clause “assure[s] that public funds will be spent according to the

23 letter of the difficult judgments reached by Congress as to the common good and not according to

24 the individual favor of Government agents or the individual pleas of litigants.” Office of Pers.

25 Mgmt. v. Richmond, 496 U.S. 414, 428 (1990).

26

44. Congress also may enact authorization legislation to establish, continue, or modify

27 an agency, program, or government function. Congressional authorization of a program, however,

28

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1 does not confer power on the Executive Branch to expend public funds. Only a specific

2 appropriations law can do that.

3

45. Although Congress may combine an authorization and an appropriation in a single

4 bill, it may (and most often does) enact them separately. In keeping with its broad constitutional

5 authority, Congress may choose not to appropriate funds for an authorized program, or Congress

6 may appropriate a different amount of money than the amount (if any) provided for in an

7 authorization. Congress also may limit the purposes for which appropriated funds may be used.

8

46. Appropriations laws generally take one of two forms: (a) temporary appropriations,

9 which typically are enacted on an annual basis, and (b) permanent appropriations, which are few in

10 number and which (i) remain in effect until Congress repeals or modifies them, and (ii) permit

11 federal agencies to expend public funds without the need for passage of a temporary appropriations

12 bill in the current Congress. For an appropriation to be considered permanent, the law must clearly

13 and expressly so provide.

14

47. By providing funding to the Executive Branch through temporary (typically annual)

15 appropriations, Congress ensures Executive Branch accountability by forcing the Executive Branch

16 to return to Congress each year to seek continued funding for authorized agencies, programs, and

17 government functions. This process provides Congress the opportunity to determine a suitable

18 amount of funding after careful consideration.

19

48. Temporary appropriations also reinforce and further Congress’ constitutional

20 responsibility to oversee the Executive Branch, and thereby act as a check upon the Executive

21 Branch, as the Framers intended.

22
The Constitution Does Not Allow Appropriations to Be Made by Executive Fiat, Rather than
23 by Law.

24

49. “It is for Congress, proceeding under the Constitution, to say what amount may be

25 drawn from the Treasury in pursuance of an appropriation.” Hooe v. United States, 218 U.S. 322,

26 333 (1910). If the Executive Branch spends money in violation of an appropriation law, “it would

27 be drawing funds from the Treasury without authorization by statute and thus violating the

28 Appropriations Clause.” United States v. McIntosh, 833 F.3d 1163, 1175 (9th Cir. 2016).

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1

50. No statute can provide the President with authority to spend in excess of

2 congressional limitations, or to draw money from the Treasury by executive declaration in a manner

3 that contravenes the appropriations that have been made by law. “Any exercise of a power granted

4 by the Constitution to one of the other branches of Government is limited by a valid reservation of

5 congressional control over funds in the Treasury.” Office of Pers. Mgmt., 496 U.S. at 425.

6

51. Nor can Congress endow the President with the power to reallocate money within

7 the federal budget by executive emergency declaration. “The Constitution is a compact enduring for

8 more than our time, and one Congress cannot yield up its own powers, much less those of other

9 Congresses to follow.” Clinton v. City of New York, 524 U.S. at 452 (Kennedy, J., concurring).

10

11

The Constitution’s Presentment Clause Requires that the President Either Approve a Bill or Return it to Congress with Objections.

12

52. The Presentment Clause, Article I, Section 7, Clause 2, provides that “[e]very Bill

13 which shall have passed the House of Representatives and the Senate, shall, before it become a

14 Law, be presented to the President of the United States: If he approve he shall sign it, but if not he

15 shall return it, with his Objections to that House in which it shall have originated, who shall enter

16 the Objections at large on their Journal, and proceed to reconsider it.”

17

53. The President has no constitutional authority to modify the appropriations bills

18 passed by Congress. “There is no provision in the Constitution that authorizes the President to

19 enact, to amend, or to repeal statutes.” Clinton v. City of New York, 524 U.S. at 438. This restriction

20 dates back to the founding: “Our first President understood the text of the Presentment Clause as

21 requiring that he either approve all the parts of a Bill, or reject it in toto.” Id. at 440 (quotation

22 marks omitted).

23

54. “Where the President does not approve a bill, the plan of the Constitution is to give

24 to the Congress the opportunity to consider his objections and to pass the bill despite his

25 disapproval.” Wright v. United States, 302 U.S. 583, 596 (1938).

26

27

28

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1

Congress Has Strictly Restricted the Use of Appropriated Funds for Emergency Military Construction Authority Under 10 U.S.C. § 2808.

2

55. Congress imposed binding restrictions on the President’s emergency powers to use

3 military construction funds for non-appropriated projects. Specifically, Congress limited the use of

4 emergency military construction funds only for projects (a) undertaken during a national emergency

5 “that requires use of the armed forces,” and (b) that “are necessary to support such use of the armed

6 forces.” 10 U.S.C. § 2808.

7

56. For purposes of Section 2808, Congress defines the term “military construction” as

8 including “any construction, development, conversion, or extension or any kind carried out with

9 respect to a military installation . . . or any acquisition of land or construction of a defense access

10 road.” Congress defined “military installation” as a “base, camp, post, station, yard, center, or other

11 activity under the jurisdiction of the Secretary of a military department . . . .” 10 U.S.C. § 2801(a).

12

57. The emergency construction authority under 10 U.S.C. § 2808 has been used in the

13 past only for military construction directly linked to a military installation connected to war efforts

14 abroad and for protection of weapons of mass destruction.

15

16 Congress Has Expressly Restricted the Use of Appropriated Funds for Military Construction
of Border Fencing Under 10 U.S.C. § 284.

17

58. Congress imposed binding restrictions on the Secretary of Defense’s authority to

18 provide support for construction of border fences. Specifically, Congress authorized the use of

19 Department of Defense support only for “[c]onstruction of roads and fences and installation of

20 lighting to block drug smuggling corridors across international boundaries of the United States,”

21 rather than across an entire international border. 10 U.S.C. § 284(b)(7).

22

59. In addition, Congress blocked the Secretary of Defense from redetermining the

23 funding balance struck by Congress by requiring that the Secretary of Defense seek reimbursement

24 of support provided by the Department of Defense to other agencies. Accordingly, 10 U.S.C. § 277

25 provides that “to the extent otherwise required by section 1535 of title 31 (popularly known as the

26 “Economy Act”) or other applicable law, the Secretary of Defense shall require a civilian law

27 enforcement agency to which support is provided under this chapter to reimburse the Department of

28 Defense for that support.”

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1 Congress Has Expressly Restricted the Secretary of Defense’s Authority to Transfer or

Reprogram Funds Under Sections 8005 and 9002 of the Department of Defense
2 Appropriations Act, 2020, Sections 1001 and 1520A of the National Defense Authorization

3 Act, 2020, and 10 U.S.C. § 2214.

60. Congress has restricted the Secretary of Defense’s reprogramming and transfer
4

powers to ensure that transfer authorities do not provide an end run around Congress’s role in
5

determining funding levels.
6

61. Authority to transfer funds pursuant to Section 8005 of the Department of Defense
7

Appropriations Act, 2020, “may not be used unless for higher priority items, based on unforeseen
8

military requirements, than those for which originally appropriated and in no case where the item
9

for which funds are requested has been denied by the Congress.” Authority to transfer funds
10

pursuant to Section 9002 of the Department of Defense Appropriations Act, 2020 “is subject to the
11

same terms and conditions as the authority provided in section 8005 of this Act.”
12

13

62. Authority to transfer funds pursuant to Section 1001 of the National Defense

14 Appropriations Act, 2020, “may not be used to provide authority for an item that has been denied

15 authorization by Congress.” Authority to transfer funds pursuant to Section 1520A of the Act is

“subject to the same terms and conditions as transfers under section 1001.”
16

17

63. Congress has likewise limited the transfer of non-construction Department of

18 Defense funds in 10 U.S.C § 2214(b) to transfers that (1) “provide funds for a higher priority item,

19 based on unforeseen military requirements, than the items for which the funds were originally

20 appropriated;” and (2) are not for “an item for which Congress has denied funds.”

21 The National Environmental Policy Act Requires Agencies to Consider and Make Public the 22 Environmental Impact of Their Actions.

23

64. NEPA is the “basic national charter for protection of the environment.” 40 C.F.R. §

24 1500.1(a) (1978). It was enacted with the ambitious objectives of “encourag[ing] productive and

25 enjoyable harmony between man and his environment . . . to promote efforts which will prevent or

26 eliminate damage to the environment and biosphere and stimulating the health and welfare of man;

27 and to enrich the understanding of the ecological systems and natural resources important to the

28 Nation . . . .” 42 U.S.C. § 4321.

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1

65. In order to achieve these goals, NEPA contains several “action forcing” procedures,

2 most significantly the mandate to prepare an environmental impact statement (“EIS”) on major

3 federal actions “significantly affecting the quality of the human environment.” Robertson v.

4 Methow Valley Citizens Council, 490 U.S. 332, 348 (1989); 42 U.S.C. § 4332(2)(C).

5

66. The Council on Environmental Quality (“CEQ”) was created to administer NEPA

6 and has promulgated NEPA regulations, which are binding on all federal agencies. See 42 U.S.C.

7 §§ 4342, 4344; 40 C.F.R. §§ 1500–1508 (1978).

8

67. When a federal agency is not certain whether an EIS is required, it must prepare a

9 briefer document, known as an environmental assessment (“EA”). 40 C.F.R. § 1508.9 (1978). If the

10 agency concludes in an EA that an action may have significant impacts on the environment, then an

11 EIS must be prepared. Id. § 1501.4. If an EA concludes that there are no significant impacts to the

12 environment, the federal agency must provide a detailed statement of reasons why the action’s

13 impacts are insignificant and issue a Finding of No Significant Impact (“FONSI”). Id. § 1508.13.

14

68. The Supreme Court has found that the preparation and public circulation of EISs and

15 EAs promotes NEPA’s broad environmental objectives in two primary ways: “It ensures that the

16 agency, in reaching its decision, will have available, and will carefully consider, detailed

17 information concerning significant environmental impacts; it also guarantees that the relevant

18 information will be made available to the larger audience that may also play a role in both the

19 decision-making process and the implementation of that decision.” Methow Valley Citizens

20 Council, 490 U.S. at 349.

21

69. NEPA requires that “agencies shall integrate the NEPA process with other planning

22 at the earliest possible time to insure that planning and decisions reflect environmental values, to

23 avoid delays later in the process, and to head off potential conflicts.” 40 C.F.R. § 1501.2 (1978); id.

24 § 1502.5 (“An agency shall commence preparation of an [EIS] as close as possible to the time the

25 agency is developing or is presented with a proposal . . . .”). The Ninth Circuit has interpreted these

26 regulations as requiring the NEPA process to be conducted “before any irreversible and

27 irretrievable commitment of resources.” Connor v. Burford, 848 F.2d 1441, 1446 (9th Cir. 1998).

28

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1

70. A “[p]roposal exists at that stage in the development of an action when an

2 agency . . . has a goal and is actively preparing to make a decision on one or more alternative means

3 of accomplishing that goal and the effects can be meaningfully evaluated.” 40 C.F.R. § 1508.23.

4 Actions are defined to “include new and continuing activities including projects and programs

5 entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies,” and

6 include “[a]pproval of specific projects, such as construction or management activities located in a

7 defined geographic area,” as well as “actions approved by permit or other regulatory decision as

8 well as federal and federally assisted activities.” Id. §§ 1508.18(a) & (b)(4).

9

71. For activities covering multiple landscape types and jurisdictions, agencies may

10 prepare a programmatic EIS (“PEIS”). A PEIS evaluates the effects of broad proposals or planning-

11 level decisions that may include any or all of the following: a wide range of individual actions;

12 implementation over a long timeframe; and/or implementation across a large geographic area.

13

72. The Department of Homeland Security has not promulgated regulations to

14 implement NEPA, but has issued an Instruction Manual. Instruction Manual 023-01-001-01,

15 Revision 01, Implementation of NEPA (Nov. 6, 2014) (“DHS NEPA Manual”). The Manual

16 specifically includes “proposed construction, land use, activity, or operation that has the potential to

17 significantly affect environmentally sensitive areas” as an action “normally requiring” the

18 preparation of at least an EA.

19

73. Echoing the general NEPA requirements regarding the need to conduct NEPA early

20 in the process, the DHS NEPA Manual directs the Department of Homeland Security to “integrate[]

21 the NEPA process with other planning efforts at the earliest possible stage so that environmental

22 factors are considered with sufficient time to have a practical influence on the decision-making

23 process before decisions are made.” DHS NEPA Manual, at p. IV-1. The Manual directs that

24 agency components that process applications for Department of Homeland Security funding or

25 approval, “have a responsibility to integrate NEPA requirements early in the application process,”

26 and to ensure that “completion of the NEPA process occurs before making a decision to approve”

27 the proposal.

28

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1

74. NEPA requires that the Agencies involve the public in preparing and considering

2 environmental documents that implement the Act. 40 C.F.R. § 1506.6; id. § 1506.6(b)(1) (requiring

3 federal agencies to “[p]rovide public notice of NEPA-related hearings, public meetings, and the

4 availability of environmental documents so as to inform those persons and agencies who may be

5 interested or affected”).

6

75. The CEQ regulations further direct federal agencies to “insure that environmental

7 information is available to public officials and citizens before decisions are made,” and mandate

8 that “public scrutiny [is] essential to implementing NEPA.” 40 C.F.R. § 1500.1(b).

9

76. In analyzing an action’s environmental effects, an agency must also consider the

10 effects of both: “connected actions,” meaning those that are “[c]losely related,” including actions

11 that “[c]annot or will not proceed unless other actions are taken previously or simultaneously,” and

12 actions that are “interdependent parts of a larger action and depend on the larger action for their

13 justification”; and “cumulative actions,” meaning those that “when viewed with other proposed

14 actions have cumulatively significant impacts.” 40 C.F.R. § 1508.25.

15

77. The Ninth Circuit has held that a “complete failure to involve or even inform the

16 public” about the agency’s preparation of a NEPA document violates the statute’s public

17 participation requirements. Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 970

18 (9th Cir. 2003).

19

78. Underlying all of NEPA’s procedural requirements is the mandate that agencies take

20 a “hard look” at all of the environmental impacts and risks of a proposed action. As stated by the

21 Ninth Circuit, “general statements about ‘possible effects’ and ‘some risk’ do not constitute a ‘hard

22 look’ absent a justification regarding why more definitive information could not be provided.” Blue

23 Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998) (internal

24 citations omitted).

25
26 Fiscal Law Forbids Mixing and Matching Sources of Funding to Evade Spending Limits.
79. The Anti-Deficiency Act prohibits spending funds in excess of appropriations,
27
unless authorized by statute. See 31 U.S.C. § 1341(a)(1)(A) (officers and employees may not “make
28

17 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund

2 for the expenditure or obligation”). It also prohibits the executive branch from involving the United

3 States government “in a contract or obligation for the payment of money before an appropriation is

4 made unless authorized by law.” Id. § 1341(a)(1)(B).

5

80. The Purpose Statute mandates that appropriated funds may be used only for the

6 purpose of the appropriation, unless authorized by statute. See 31 U.S.C. § 1301(a)

7 (“Appropriations shall be applied only to the objects for which the appropriations were made except

8 as otherwise provided by law.”).

9

81. The Transfer Statute prohibits transfer of funds from one account to another, unless

10 authorized by statute. See 31 U.S.C. § 1532 (“An amount available under law may be withdrawn

11 from one appropriation account and credited to another or to a working fund only when authorized

12 by law.”). “Transfers without statutory authority are equally forbidden whether they are (1)

13 transfers from one agency to another, (2) transfers from one account to another within the same

14 agency, or (3) transfers to an interagency or intra-agency working fund.” GAO, Principles of

15 Federal Appropriations Law: Fourth Edition, Chapter 2, GAO-16-464SP, pp. 2-38–2-39. In

16 addition to violating the Transfer Statute, “an unauthorized transfer would violate 31 U.S.C.

17 § 1301(a) (which prohibits the use of appropriations for other than their intended purpose), would

18 constitute an unauthorized augmentation of the receiving appropriation, and could, if the transfer

19 led to overobligating the receiving appropriation, result in an Antideficiency Act (31 U.S.C. § 1341)

20 violation as well.” Id. at 2-38.

21

82. Fiscal law protects a key function of congressional appropriations judgment: setting

22 a maximum authorized program level by specifically appropriating a finite set of funds for a

23 particular project. See SBA’s Imposition of Oversight Review Fees on PLP Lenders, B-300248

24 (Comp. Gen. Jan. 15, 2004) (“In addition to providing necessary funds, a congressional

25 appropriation establishes a maximum authorized program level, meaning that an agency cannot,

26 absent statutory authorization, operate beyond the level that can be paid for by its appropriations.”).

27 “Allowing an agency to exceed this level with funds derived from some other source would usurp

28 congressional prerogative and undercut the congressional power of the purse.” Availability of

18 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 Receipts from Synthetic Fuels Projects for Contract Admin. Expenses of the Dep’t of Treasury,

2 Office of Synthetic Fuels Projects, B-247644, 72 Comp. Gen. 164, 165 (Apr. 9, 1993).

3

83. According to longstanding interpretations of fiscal law, an agency may not combine

4 multiple appropriations to complete a project when neither appropriation is sufficient on its own for

5 the project. See Department of Homeland Security—Use of Management Directorate

6 Appropriations to Pay Costs of Component Agencies, B-307382 (Comp. Gen. Sept. 5, 2006). An

7 agency cannot “elect to use (or exhaust) first one and then the other of the two appropriations for

8 the same class of expenditures.” Id. (citing 10 Comp. Gen. 440, 447 (1931)).

9

84. In addition, “specific appropriations preclude the use of general ones even when the

10 two appropriations come from different accounts.” Nevada v. Dep’t of Energy, 400 F.3d 9, 16 (D.C.

11 Cir. 2005) (citing 4 Comp. Gen. 476 (1924)). In other words, where Congress has allocated a

12 specific amount of funding for an activity, an agency cannot use funding from a more general fund

13 to accomplish the specific goal.

14

85. Finally, under the so-called “pick and stick rule,” when two appropriations are

15 available for the same purpose, the agency must select which to use—and once it has made

16 an election, the agency may not make use of funds from a different appropriation for the same

17 purpose, unless the agency, at the beginning of the fiscal year, informs Congress of its intent to

18 change for the next fiscal year. See Department of Homeland Security—Use of Management

19 Directorate Appropriations to Pay Costs of Component Agencies, B-307382; see also 68 Comp.

20 Gen. 337 (1989); 59 Comp. Gen. 518 (1980).

21
DECLARATORY AND INJUNCTIVE RELIEF
22
86. Plaintiffs will suffer irreparable injury if Defendants take action to build a wall in
23
reliance on the Proclamation, or in implementing the President’s direction to use funds pursuant to
24
10 U.S.C. §§ 284 and 2808, and Plaintiffs have no adequate remedy at law.
25

26

27

28

19 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

CLAIMS FOR RELIEF

2

FIRST CLAIM FOR RELIEF

(The Consolidated Appropriations Act of 2020, Pub. Law No. 116-93)

3

87. Neither the President nor any other federal official can take an action that exceeds

4

the scope of their constitutional and/or statutory authority.

5

88. Congress has explicitly limited Defendants’ authority to construct a border wall

6

through exercise of its constitutional appropriations power in the Consolidated Appropriations Act

7

of 2020. Congress’s appropriations judgment is that only $1.375 billion should be used to construct

8

a border wall.

9

89. Congress enacted the Consolidated Appropriations Act of 2020 against the backdrop

10

of the President’s continued demand for billions in unrestricted border wall funding for construction

11

of a contiguous barrier between the United States and Mexico. “Congress has expressed its will to

12

withhold this power from the President as though it had said so in so many words.” Youngstown

13

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 602 (1952) (Frankfurter, J., concurring).

14

90. The President has nonetheless instructed the Secretaries of Homeland Security and

15

Defense to act beyond the limitations imposed by Congress, in purported reliance on a patchwork of

16

older, more general statutes that are silent on wall construction.

17

91. The statutes the President purports to rely on, 10 U.S.C. §§ 284 and 2808, do not

18

authorize wall construction outside of the limited geographic, monetary, and scheduling bounds set

19

by Congress in the Consolidated Appropriations Act of 2020.

20

92. “[T]he meaning of one statute may be affected by other Acts, particularly where

21

Congress has spoken subsequently and more specifically to the topic at hand.” F.D.A. v. Brown &

22

Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). “This is particularly so where the scope of

23

the earlier statute is broad but the subsequent statutes more specifically address the topic at hand.”

24

Id. at 143. Therefore, “a specific policy embodied in a later . . . statute should control [judicial]

25

construction of the [earlier broad] statute, even though it ha[s] not been expressly amended.” Id.

26

(quotations and citations omitted; brackets in original).

27

93. Use of funds under 10 U.S.C. § 2808 in accordance with the President’s

28

20 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 Proclamation to construct the border wall violates the Consolidated Appropriations Act of 2020. It

2 funds the wall in excess of the amount established by Congress and it denies funds from other

3 projects that Congress chose to fund.

4

94. The President’s Proclamation does not meet the conditions required for invocation of

5 10 U.S.C. § 2808 because it does not identify an emergency requiring use of the armed forces.

6

95. The President’s Proclamation additionally does not meet the conditions required for

7 invocation of 10 U.S.C. § 2808 because construction of a border wall is not a military construction

8 project supporting the armed forces.

9

96. Use of funds under 10 U.S.C. § 284 to construct the border wall violates the

10 Consolidated Appropriations Act of 2020.

11

97. The Department of Defense’s use of funds under 10 U.S.C. § 284 to construct a

12 contiguous fence across the international boundaries of the United States is contrary to Congress’s

13 requirement that construction under that statute must be limited to drug smuggling corridors.

14

98. Congress did not delegate to the Secretary of Defense the decision to construct a

15 contiguous fence across the southern border through a bill providing for military support of law

16 enforcement activities. Interpretation of statutes “must be guided to a degree by common sense as to

17 the manner in which Congress is likely to delegate a policy decision of such economic and political

18 magnitude . . . .” Brown & Williamson Tobacco Corp., 529 U.S. at 133.

19

99. In addition, the use of funds in excess of the $1.375 billion authorized in the

20 Consolidated Appropriations Act of 2020 for construction of a border barrier violates Division C,

21 Section 739 of the Act because it would represent an “increase [in] . . . funding for a program,

22 project, or activity as proposed in the President’s budget request for a fiscal year” before “such

23 proposed change is subsequently enacted in an appropriation Act.”

24

100. The President has proposed an increase of funding by several billion dollars in his

25 budget request for fiscal year 2020, and such proposed change has not been enacted in an

26 appropriation act.

27

101. The only exception to the Section 739 prohibition on increases in funding is for

28 increases “made pursuant to the reprogramming or transfer provisions of this or any other

21 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:20-cv-01494-HSG Document 1 Filed 02/28/20 Page 24 of 31

1 appropriations Act.” Neither 10 U.S.C. § 2808 nor 10 U.S.C. § 284 is an appropriations act, so the

2 use of either authority to increase funding for the President’s wall construction is prohibited.

3

102. Defendants are acting ultra vires in using funds to construct the border wall beyond

4 the restrictions Congress imposed in the Consolidated Appropriations Act of 2019.

5

6

SECOND CLAIM FOR RELIEF (Separation of Powers, Article I, Section 9, Clause 7 of the Constitution)

7

103. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

8

104. Defendants may not “draw[] [Money] from the Treasury, but in Consequence of

9 Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7.

10

105. Congress has explicitly limited Defendants’ authority to construct a border wall

11 through exercise of its constitutional appropriations power in the Consolidated Appropriations Act

12 of 2019.

13

106. The President has nonetheless instructed the Secretaries of Defense and Homeland

14 Security to act beyond the limitations imposed by Congress by spending approximately $8.1 billion

15 to build a wall across the border.

16

107. “It is one thing to draw an intention of Congress from general language and to say

17 that Congress would have explicitly written what is inferred, where Congress has not addressed

18 itself to a specific situation. It is quite impossible, however, when Congress did specifically address

19 itself to a problem . . . to find secreted in the interstices of legislation the very grant of power which

20 Congress consciously withheld. To find authority so explicitly withheld is not merely to disregard

21 in a particular instance the clear will of Congress. It is to disrespect the whole legislative process

22 and the constitutional division of authority between President and Congress.” Youngstown, 343 U.S.

23 at 609 (Frankfurter, J., concurring).

24

108. Because the statutes the President purports to rely on, 10 U.S.C. §§ 284 and 2808, do

25 not authorize wall construction outside of the limited geographic, monetary, and scheduling bounds

26 set by Congress in the Consolidated Appropriations Act of 2020, the use of those statutes to fund

27 border wall construction usurps Congress’s legislative authority and violates the Constitution’s

28 separation of powers.

22 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

THIRD CLAIM FOR RELIEF (Appropriations Clause, Article I, Section 9, Clause 7 of the Constitution)

2

109. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

3

110. The Constitution only permits money to be withdrawn from the Treasury by an

4 appropriation made by law. U.S. Const. art. I, § 9, cl. 7.

5

111. In the Consolidated Appropriations Act of 2019, Congress has appropriated only

6 $1.375 billion for border wall construction.

7

112. The President asserts that he has independent authority under 10 U.S.C. §§ 284 and

8 2808 to order that billions more be spent on the wall than provided in those legislative

9 appropriations. The President has ordered the Secretaries of Defense and Homeland Security to

10 implement his determination that additional billions be spent on construction of the border wall.

11

113. Congress cannot give the President the authority to make an appropriation, including

12 by statutes that provide authority for emergency proclamations.

13

114. To the extent that 10 U.S.C. §§ 284 and 2808 authorize the President to allocate

14 money from the Department of the Treasury by executive proclamation, rather than by law, and in

15 contravention of restrictions contained in Congress’s appropriations’ laws, they violate the

16 Constitution.

17
FOURTH CLAIM FOR RELIEF

18

(Presentment Clause, Article I, Section 7, Clause 2)

19

115. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

20

116. The Presentment Clause requires that when Congress passes an appropriations bill,

21 the President has only two options: he must sign it, or return it with his objections so that Congress

22 may consider them.

23

117. Instead of following this mandatory requirement, the President signed a bill to which

24 he objected, and announced that he would use the National Emergencies Act to reallocate funds to

25 his liking.

26

118. Because the President has purported to modify or repeal the appropriations bill

27 passed by Congress, including by improperly relying on an emergency proclamation to lift

28

23 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 restrictions Congress imposed on border wall funding in the appropriations bill, his actions violate

2 the Presentment Clause.

3

119. To the extent that 10 U.S.C. §§ 284 and 2808 authorize the President to modify or

4 repeal Congress’s appropriations legislation by executive proclamation, rather than by law, they

5 violate the Constitution.

6

7

FIFTH CLAIM FOR RELIEF (National Environmental Policy Act, 42 U.S.C. § 4332)

8

120. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

9

121. The Secretaries of Defense and Homeland Security must ensure that their agencies

10 prepare an environmental impact statement on major Federal actions “significantly affecting the

11 quality of the human environment,” and prepare an environmental assessment to determine whether

12 any such significant effects exist. Robertson v. Methow Valley Citizen Council, 490 U.S. 332, 348

13 (1989); Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000); 42 U.S.C. § 4332(2)(C). A federal

14 agency “bears the primary responsibility to ensure that it complies with NEPA.” ’Ilio’Ulaokalani

15 Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006). “When an agency decides to proceed with

16 an action in the absence of an EA or EIS, the agency must adequately explain its decision.” Alaska

17 Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851, 859 (9th Cir. 1999).

18

122. NEPA requires that the Defendants involve the public in preparing and considering

19 environmental documents that implement the Act. 40 C.F.R. § 1506.6 (1978); id. § 1506.6(b)(1)

20 (requiring federal agencies to “[p]rovide public notice of NEPA-related hearings, public meetings,

21 and the availability of environmental documents so as to inform those persons and agencies who

22 may be interested or affected”).

23

123. Border wall construction is a final agency action, for purposes of the Defendants’

24 obligations under NEPA.

25

124. To the extent that the Department of Homeland Security can waive aspects of its

26 own compliance with NEPA, that authority is absent with respect to the Department of Defense’s

27 use of funds.

28

24 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

125. As directed by Defendant Trump’s Proclamation, Defendants Esper and Wolf violate

2 NEPA and NEPA’s implementing regulations by authorizing border wall construction without first

3 conducting the necessary environmental analysis of the impacts of the actions in an EA or EIS, or a

4 programmatic EIS, in light of the potentially significant impacts that the action will have, including

5 both cumulative effects and the effects of connected actions.

6

126. As directed by Defendant Trump’s Proclamation, Defendants Esper and Wolf further

7 violate NEPA and NEPA’s implementing regulations by failing to initiate and complete NEPA at

8 the earliest possible time in the planning process.

9

127. As directed by Defendant Trump’s Proclamation, Defendants Esper and Wolf have

10 utterly failed and/or refused to involve the public in its decision-making processes for border

11 construction. This failure to provide for any public participation in relation to their approval of

12 border wall construction violates NEPA and its implementing regulations.

13

SIXTH CLAIM FOR RELIEF

14

(Ultra Vires)

15

128. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

16

129. Defendants are acting ultra vires in seeking to divert funding or resources pursuant

17 to 50 U.S.C. § 1631 and 10 U.S.C. § 2808 for failure to meet the criteria required under those

18 statutes. There is no emergency requiring the use of the armed forces along the U.S.-Mexico border,

19 construction of a border wall is not a “military construction project,” and construction of a border

20 wall is not “necessary to support such use of the armed forces.”

21

130. Defendants are acting ultra vires in seeking to divert funding or resources pursuant

22 to 10 U.S.C. § 284 for failure to meet the criteria required under that statute. Construction of the

23 border wall does not constitute the construction of a road or fence to block “drug smuggling

24 corridors.” In addition, use of funds under 10 U.S.C. § 284 to construct the border wall in the face

25 of Congress’s judgment that additional money should not be spent on the wall would violate the

26 Consolidated Appropriations Act of 2020 because such money, having not been appropriated for

27 wall construction, cannot be reimbursed to the Department of Defense under 10 U.S.C. § 277.

28

25 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

131. Defendants are also acting ultra vires in seeking to divert funding or resources

2 pursuant to 10 U.S.C. § 284 by violating the restrictions in appropriations law, including the

3 requirements of the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1), the Purpose Statute, 31 U.S.C.

4 § 1301(a), and the Transfer Statute, 31 U.S.C. § 1532, as correctly interpreted by the GAO. An

5 agency cannot “elect to use (or exhaust) first one and then the other of the two appropriations for

6 the same class of expenditures.” 10 Comp. Gen. 440, 447 (1931). Yet according to a White House

7 fact sheet issued on February 15, Defendants intend to use different appropriations “sequentially

8 and as needed.” In addition, “specific appropriations preclude the use of general ones even when the

9 two appropriations come from different accounts.” Nevada, 400 F.3d at 16 (citing 4 Comp. Gen.

10 476 (1924)). But Defendants have indicated that they will disregard the specific limitation Congress

11 imposed by allocating only $1.375 billion in funding for border barriers, and use additional, more

12 general appropriations to fund further border wall construction. Finally, Defendants are violating

13 the “pick and stick rule,” because the government previously relied on different appropriations than

14 the Drug Interdiction and Counter-Narcotics Activities account to fund border barrier construction,

15 and the fiscal year 2019 budget justification for this appropriation includes no mention of any plans

16 to use the appropriation for walls or fences.

17

132. Defendants are acting ultra vires in seeking to transfer funds into the Drug

18 Interdiction and Counter-Narcotics Activities account for the purpose of building a permanent

19 border wall. Sections 8005 and 9002 of the 2020 Department of Defense Appropriations Act,

20 prohibit the transfer of Department of Defense funds “where the item for which funds are requested

21 has been denied by the Congress,” Sections 1001 and 1520A of the National Defense Authorization

22 Act, 2020, bar transfers for “an item that has been denied authorization by Congress,” and 10 U.S.C

23 § 2214(b) similarly bars transfers in support of any “item for which Congress has denied funds.”

24 Congress has denied funding for Defendants’ planned wall construction, thus barring the

25 Department of Defense from using transfers to fund it.

26

133. In addition, Defendants are acting ultra vires in seeking to transfer funds into the

27 Drug Interdiction and Counter-Narcotics Activities account for the purpose of building a permanent

28 border wall because Sections 8005 and 9002 of the 2020 Department of Defense Appropriations

26 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:20-cv-01494-HSG Document 1 Filed 02/28/20 Page 29 of 31

1 Act and 10 U.S.C § 2214(b) prohibit the transfer of Department of Defense funds except where the

2 transfer is to support an item that is “based on unforeseen military requirements.” The diversion of

3 funding to build a border wall or fence is not based on unforeseen military requirements, because it

4 is based on claims that Defendant Trump has made for years, including prior to enactment of the

5 2020 Department of Defense Appropriations Act. Moreover, the building of a permanent border

6 wall is not a “military requirement.” Instead, it is a Department of Homeland Security project. The

7 Department of Defense is the lead agency only for “detection and monitoring of aerial and maritime

8 transit of illegal drugs into the United States,” 10 U.S.C. § 124, with no mention of military

9 responsibilities for securing U.S. land borders.

10

134. Defendants are acting ultra vires in seeking to transfer funds into the Drug

11 Interdiction and Counter-Narcotics Activities account for the purpose of building a permanent

12 border wall because Sections 8005 and 9002 of the 2020 Department of Defense Appropriations

13 Act and 10 U.S.C § 2214(b) do not authorize the transfer of Department of Defense funds for the

14 purpose of supporting another agency’s work. While 10 U.S.C. § 284 funds may, in appropriate

15 circumstances, be used by the Department of Defense to support another agency’s counterdrug

16 efforts, Congress has not authorized the Department of Defense to transfer additional Defense funds

17 into the Drug Interdiction and Counter-Narcotics Activities account for the purpose of supporting

18 another agency, rather than for military requirements.

19

20

SEVENTH CLAIM FOR RELIEF (Violation of Administrative Procedures Act)

21

135. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

22

136. The Administrative Procedures Act bars agency actions that are “contrary to

23 constitutional right, power, privilege, or immunity,” or “in excess of statutory jurisdiction,

24 authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(B)–(C).

25

137. Defendants’ decisions to transfer military funds to wall construction constitute

26 agency actions under the Administrative Procedures Act.

27

138. For the reasons stated above, Defendants’ actions are contrary to the Constitution

28 and in excess of statutory authority.
27 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:20-cv-01494-HSG Document 1 Filed 02/28/20 Page 30 of 31

1

PRAYER FOR RELIEF

2 WHEREFORE, Plaintiffs pray that this Court:

3

(A) Declare the President’s direction that Defendants Esper and Wolf reallocate funds to

4

support construction of a border wall under 10 U.S.C. §§ 2808 and 284, Sections

5

8005 and 9002 of the 2020 Department of Defense Appropriations Act, and Sections

6

1001 and 1520A of the 2020 National Defense Authorization Act to be ultra vires, in

7

excess of presidential authority under Article II of the Constitution, an infringement

8

on legislative authority, a violation of the Presentment Clause, in violation of the

9

Administrative Procedures Act, and invalid;

10

(B) Enjoin Defendants Esper and Wolf from taking action to build a border wall using

11

funds or resources from the Defense Department, or on any basis that depends on the

12

President’s unlawful emergency declaration;

13

(C) Declare that Defendants Esper and Wolf have violated NEPA and its implementing

14

regulations with respect to the border wall project by, inter alia, failing to conduct

15

any NEPA analysis, failing to provide any opportunity for public participation, and

16

failing to take a “hard look” at the potential environmental impacts of the border

17

wall project;

18

(D) Enjoin Defendants Esper and Wolf from implementing the border wall project until

19

and unless Defendants comply with NEPA, the Endangered Species Act, and the

20

implementing regulations for those laws;

21

(E) Award Plaintiffs their reasonable costs of litigation; and

22

(F) Grant such other and further relief as the Court may deem just and proper.

23

24

25

26

27

28

28 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 4:20-cv-01494-HSG Document 1 Filed 02/28/20 Page 31 of 31

1 Dated: February 28, 2020

Respectfully submitted,

2

/s/ Cecillia D. Wang

3

Cecillia D. Wang (SBN 187782)

Mollie M. Lee (SBN 251404)

American Civil Liberties Union Foundation

4 American Civil Liberties Union Foundation 39 Drumm Street

of Northern California, Inc.
5 39 Drumm Street

San Francisco, CA 94111 Tel.: (415) 343-0770

6

San Francisco, CA 94111 Tel.: (415) 621-2493

Fax: (415) 395-0950 cwang@aclu.org

7 Fax: (415) 255-8437
mlee@aclunc.org
8

Dror Ladin* Noor Zafar*

9

David Donatti* Andre I. Segura (SBN 247681)

Jonathan Hafetz* Hina Shamsi*

10

American Civil Liberties Union Foundation of Texas

Omar C. Jadwat* American Civil Liberties Union Foundation

11 P.O. Box 8306
Houston, TX 77288
12 Tel.: (713) 325-7011

125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2660

13

Fax: (713) 942-8966 ddonatti@aclutx.org

Fax: (212) 549-2564 dladin@aclu.org

14 asegura@aclutx.org

nzafar@aclu.org jhafetz@aclu.org

15

hshamsi@aclu.org

ojadwat@aclu.org
16

17

Sanjay Narayan (SBN 183227)** Gloria D. Smith (SBN 200824)**

18

Sierra Club Environmental Law Program

2101 Webster Street, Suite 1300

19

Oakland, CA 94612

Tel.: (415) 977-5772

20

sanjay.narayan@sierraclub.org

21

gloria.smith@sierraclub.org

22

Counsel for Plaintiffs

23

* Application for admission pro hac vice

24

forthcoming

25

**Counsel for Plaintiff Sierra Club

26

27

28

29 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF